THE SILENT ELECTORATE: WHY UNDER TRIALS DESERVE THE BALLOT?

INTRODUCTION
ESSENCE OF RIGHT TO VOTE
WHY?
[A] RIGHT TO BE PRESUMED INNOCENT
1. A fundamental postulate of criminal jurisprudence is the presumption of innocence,
meaning thereby that a person is believed to be innocent until found guilty. 1 In other
words, an accused is innocent until he is proven guilty, and that too beyond
reasonable doubt.2 A division bench of the Hon’ble Supreme Court of India has
labelled this presumption as a human right.3 However, there are instances in our
criminal law where a reverse onus has been placed on an accused with regard to some
specific offences but that is another matter and does not detract from the fundamental
postulate in respect of other offences.4 These are the fundamental canons of our
criminal jurisprudence and they are quite in conformity with the constitutional
mandate contained in Articles 20 and 21 of the Constitution of India.5
2. Furthermore, the apex court of India has held that the presumption of innocence is
embedded in Part III of the Constitution, not only as part of rule of law under
Article 14 but also as an Article 21 right. 6 In this regard, it has been opined
that Article 21 in view of its expansive meaning not only protects life and
liberty but also envisages a fair procedure. Liberty of a person should not
ordinarily be interfered with unless there exist cogent grounds thereof. 7
3. Additionally, it is a well settled and adopted position of law that everyone
charged with a criminal offence shall have the right to be presumed innocent until
proved guilty according to law. 8 The issue that whether these international
conventions are binding within the boundaries of a nation has also been affirmed by
the Hon’ble Supreme Court of India as it has held that any international
convention not inconsistent with the fundamental rights and in harmony with its

1
Dataram Singh v. State of U.P., (2018) 3 SCC 22.
2
Babu v. State of Kerala, (2010) 9 SCC 189.
3
Narendra Singh & Anr v. State Of M.P, AIR 2004 SC 3249.
4
Dataram Singh v. State of U.P., (2018) 3 SCC 22.
5
Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC 1.
6
Sahara India Real Estate Corp. Ltd.& Ors v. Securities & Exch. Board Of India & Anr., AIR 2012 SC 3829.
7
Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra & Anr. AIR 2005 SC 2277.
8
Article 11(1), UDHR & Article 14(2), ICCPR.
 spirit must be read into these provisions to enlarge the meaning and content
thereof, to promote the object of the constitutional guarantee. 9
4. Therefore, persons in lawful custody, or else confined in a prison, have a right
to be presumed innocent until their guilt is proven beyond reasonable doubt.
This undermining principle of criminal law is fundamental in nature for the
protection of rights of an arrested person. The denial of voting rights to persons
who are not convicts is a brazen violation of this principle.10

[B] BALANCING OF RIGHTS

1. Every under trial has a right to be released on bail if he/she has served half the
maximum sentence in prison.11 Moreover, the Hon’ble Supreme Court of India has
held that, the under trial prisoners charged with murder can be released on bail if their
cases are pending for two years or more.12 Furthermore, in cases where the police
investigation has not been completed with the stipulated time period every prisoner is
vested with a right to be released on bail. 13 The scope of this right has been further
expanded by the apex court, where an under trial prisoner for more than 10 years,
against whom 48 criminal cases were registered, was furnished with the right to be
released on bail, for the enforcement of his fundamental rights.14
RIGHT TO VOTE

2. On the other hand, persons confined in prison or in the lawful custody of the police
are not allowed to exercise their right to vote.15 In context of modern legal
jurisprudence, both these rights, right to bail & right to vote, in its most primary form
are human rights that are vested with under trials, and thus ought to be placed para
materia to one another. Denial of one right invariably impedes enjoyment of other
rights.16 Moreover, the Hon’ble Supreme Court of India has held that, a right to elect,
fundamental though it is to democracy, is, anomalously enough, neither a fundamental
9
Vishaka & Ors v. State Of Rajasthan & Ors, AIR 1997 SC 3011.
10
Microsoft Word - CASIHR Newsletter Vol V Issue [Link] ([Link]).
11
Bhartiya Nagrik Suraksha Sanhita, No. 46 of 2023, §479 (Ind.).
12
Supreme Court Legal Aid Committee v. Union of India, 1994 SCC (6) 731 & Shaheen Welfare Assn. v. Union
of India, 1996 SCC (2) 61.
13
Bhartiya Nagrik Suraksha Sanhita, No. 46 of 2023, §187 (Ind.).
14
Pramod Kumar Saxena v. Union of India & Ors, 2008 (9) SCC 685.
15
Representation of People Act, No. 43 of 1951, §62(5) (Ind.).
16
[Link] principles#:~:text=Whether%20they%20relate%20to
%20civil,impedes%20enjoyment%20of%20other%20rights.
 right nor a common law right. It is pure and simple, a statutory right. So is the right to
be elected. So is the right to dispute an election. Outside of statute, there is no right to
elect, creations they are, and therefore, subject to statutory limitation.17
3. Furthermore, resource crunch and the practical difficulties in allowing prisoners to
vote is not a valid justification for the denial of a right. 18 Granted that rights are not
absolute, but they can only be restricted on reasonable grounds; and practical
difficulties constitute an unreasonable ground for the same. It is a well known fact
that the Election Commission of India conducts elections throughout the country,
despite the problems posed, which include threat of violence, weather conditions,
terrain etc.19 In addition to this, the ruling of the Hon’ble Supreme Court that the
prisoners have been imprisoned due to their own conduct fails to recognize the fact
that the crimes so committed by them differ in their degrees and hence, the
restrictions so imposed on them must also differ. Therefore, some persons who have
committed grave offences may not be allowed to vote, whereas persons with lesser
sentences or who have committed less serious offences should not be denied their
suffrage rights.20
4. This dichotomy hampers the concept of indivisibility of human rights, wherein,
whether they relate to civil, cultural, economic, political or social issues, human rights
are inherent to the dignity of every human person. Consequently, all human rights
have equal status, and cannot be positioned in a hierarchical order. All human rights
are equally important, and all governments must treat human rights in a fair and equal
manner, on the same footing and with the same emphasis.21
[C] AGAINST REFORMATIVE THEORY OF PUNISHMENT

1. Reformative theory of punishment is based on the belief that human nature is capable
of reform and that the object of punishment is not to inflict retribution but to reform
the offender.22 The court held that the ultimate aim of punishment is to transform the
offender into a useful member of society and that the reformative approach should be
given due consideration in sentencing.23 Reformative approach to punishment should
be the object of criminal law, in order to promote rehabilitation without offending
17
Jyoti Basu v. Debi Ghosal, (1982) 1 SCC 691.
18
[Link]
19
Microsoft Word - CASIHR Newsletter Vol V Issue [Link] ([Link])
20
Ibid.
21
[Link]
22
Mohd. Hanif Quareshi vs. State of Bihar, AIR 1958 SC 731.
23
Ibid.
 community conscience and to secure social justice. 24 Punishment according to the
reformative theory is seen as reforming or rehabilitating the offender but not to
destroy him.25 This theory condemns all kinds of corporal punishments.26
2. In Indian criminal justice system, the judicial courts follow reformative theory of
punishment. As stated above, this approach of the courts helps the offenders to regain
their position in the society. Hence, the approach of the judicial courts in the country
have always been tilted towards awarding punishments in reformative nature rather
than following deterrent or retributive path. More so, this fact has been further
cemented by our law making body, as they have introduced a new form of
punishment, known as Community Service27. This legislative action highlights the
inclination of our legal system more towards the obedience of reformative theory of
punishment.
3. Thus, if post conviction, the judicial courts in the country tend to follow a reformative
approach then this should be the scenario at the pre conviction stage as well. Whereas,
denial of such essential rights to under trials will not reform them, rather the society
will be grappled in the clutches of political inequalities, thereby infringing the
preambular principles enshrined in the Constitution of India. Henceforth, criminal
disenfranchisement conflicts to rehabilitate criminals and reintegrate them into
society.28 Moreover, it raises questions about the effectiveness of disenfranchisement
as a tool for rehabilitation and social reintegration.29
[D] GLOBAL INSPIRATION-

1. In Canada, every citizen has the right to vote in an election of members of the House
of Commons or of a legislative assembly and to be qualified for membership therein. 30
Initially, prisoners serving sentence of two years or less had the right to vote but those
serving sentence of two or more years were not allowed to exercise their right to vote.
Henceforth, this exclusion was declared unconstitutional by the Federal Court of
Canada.31

24
Narotam Singh v. State of Punjab, AIR 1978 SC 1542.
25
Sri Mithu Alias Mitu Kalita v. State of Assam, 2006 CriLJ 2570; State of H.P. v. Ishwar Dass and Ors, 1999
CriLJ 393; Bishnu Deo Shaw @Bishnu Dayal v. State of West Bengal, 1979 AIR 964.
26
Bacchan Singh v. State of Punjab, AIR 2980 SC 898.
27
Bhartiya Nyaya Sanhita, No. 45 of 2023, §4(f) (Ind.).
28
Migration Letter
29
Migration Letter.
30
Section 3, Canadian Charter of Rights and Freedoms.
31
Sauvé v. Canada, 1995.
 2. The South African Constitution guarantees the right to vote to every adult citizen. 32
The judicial courts in South Africa ruled that both the prisoners and under trials must
have a right to vote, since the principle of universal adult franchise is enshrined in the
constitution of South Africa.33 The judgment pointed out that more than one-third of
persons in prison were under trial & thousands were locked up simply because they
could not afford to pay low amounts of bail and small fines. 34 These were not serious
offenders.35
3. Similarly, the judicial courts in Australia had found that disenfranchising all prisoners
was arbitrary as it did not account for the severity of their crimes, taking into account
that imprisonment doesn’t necessarily indicate serious criminal activity. 36 The case
upheld the notion that the Australian government is chosen ‘by the people’, which
includes people who are incarcerated.37
4. Moreover, in United Kingdom also, the European Court of Human Rights ruled that a
blanket ban on British prisoners, exercising their right to vote is contrary to the
European Convention on Human Rights.38
5. As discussed above, majority of the developed countries at the international level
have crafted & accepted the widest possible interpretation of the right to vote,
especially with respect to the under trials. India should draw inspiration from these
countries and foster a legal system wherein all the human and legal rights of persons,
whether under trials or behind the bars, are safeguarded and protected. Furthermore,
India being a signatory to Universal Declaration of Human Rights, International
Covenant on Civil and Political Rights, International Covenant on Economic, Social
and Cultural Rights, rests on itself an unsaid responsibility to shape this sphere of
human rights in the most progressive manner. In order to establish a society, where
highest standards of human dignity are met, India should extend its arms welcoming a
wide arena of rights that are to be furnished upon its citizens.
6. Henceforth, the general convention at international level is much wider than what
India follows. In India, under trials are not allowed to exercise their right to vote, that
is so fundamental to the functioning of Indian democracy. More so, this fact is further

32
Section 19(3), Constitution of the Republic of South Africa, 1996.
33
August & Anr v. Electoral Commission and Others, (CCT8/99) [1999] ZACC 3
34
[Link]
35
Ibid.
36
Roach v. Electoral Commissioner 2007, Australian Indigenous Law Review, vol. 11, no. 3, pp. 70-73.
37
Roach v. Electoral Commissioner [2007] HCA 43.
38
Hirst v. United Kingdom, (No 2) ECHR 681.
 cemented by the findings of Hon’ble Supreme Court of India, as it has ruled that 39,
persons in lawful custody are not allowed to vote only because they have acted in a
certain manner, whether right or wrong, has yet not been proved. Whereas in other
developed countries, the States have expanded their horizons and under trials are
included within the ambit of persons who are eligible to vote. Moreover, in some
countries, even persons behind the bars are conferred with their right to vote. On the
other hand, India, the world’s largest democracy, is not only far behind on this front
but also voting rights, with respect to under trials, have a very limited scope and
extent. This prevalent position of law is proposed to be altered, by amending not only
the statutory provisions but also keeping in view the paramount importance of the
reform that shall be brought in the mindset of society, subsequent to such alteration.
7. Another important distinction to keep in mind is that laws are made and changed with
different governments, while rights have been enshrined as fundamental. A crime
today, might be legal tomorrow. Hence, a right as fundamental as the right to vote,
should not be dependent on the status of imprisonment or conviction.40

CONCLUSION

39
Anukul Pradhan v. Union of India, AIR 1977 SC 2814.
40
[Link]