Felony Disenfranchisement - Does Debarring the Right to Vote of the Prisoners’ Curtails the Values of the Democracy
The concept of felony disentrancement rose during the civil war curtailing the rights of the prisoners to vote. The concept is supported by one sect and opposed by the other. The argument in favour of the disenfranchisement is that these prisoners’ are social convicts and granting them any rights and privilege would be adding an advantage to them. Debarring their statutory right would deter the people from committing offences. On the other hand people are opposing the disenfranchisement on the ground that incarceration itself debar the convicts all rights and privileges and voting rights should be equally given irrespective of the person’s social and moral deeds, following the norms of the Universal Adult Suffrage. The right to vote considered as the natural rights of the humans and no one debar them from their right.
The article covers the both side of views and also the international conventions and Indian laws which grants or restrict the suffrage.
I. Introduction
The Universal Adult Suffrage or the right to vote is considered as the universal right bestowed under Article 21 of Universal Declaration of Human Rights. It is the prima facie feature of the democratic state and describe the type of government. The right and privilege of the citizen to choose the government is the instance of immense freedom of the citizen in their states. But the question arises when the concept of felony disenfranchisement is given place in the democratic society. The rights of prisoners to vote is questioned due to the felonies. The concept is discourage by many of philosophers.
II. Prisoners’ right to vote
Kentucky was the first state to implement the law of the felony disenfranchisement in 1792. The situation of the civil war increased the number of countries to adapt the concept of the felony disenfranchisement. Article 25 of the International Covenant on Civil and Political Rights gives right to every citizen to:
- To take part in public affairs directly or through their chosen representatives, and
- To take active part in vote.
Article 2 of the same states that there should be no discrimination on the basis race, colour, sex, language, religion, national or social origin, property, political or other opinion, birth or other status. These factors indicates that the institutions are holding the right to vote as the natural rights of the humans, which should not be debarred by the society or the government. Similarly, there are various conventions which states about the right to vote as the natural rights of the humans.
The policy of reformations and rehabilitation is given more stress on by these convention rather than taking away rights of the felonies and restricting their social intimacy. The prisoners should be treated with all dignity and they should be reformed and rehabilitated. The set of minimum standard rules are put forth for protecting the rights of the prisoners and should make allow them to take part in social and political activities of the society.
After all these conventions and social norm, the veracity of the prisons is that is overcrowded with lack of prison management. There are several nations adopting the policy of the felony disenfranchisement as they believe that conviction is for debarring the rights and privilege of the offender which general public have in their states. Though the perspective of the supreme court in various judgements reprimand the approach of the government and stated that there should not be aggravation in prisoners’ sufferings as he is already incarcerated.
Mulla Committee was established to present its report on the prisoners’ rights. The report the stated that the prisoners’ have the rights:
- To be treated with human dignity,
- To receive basic minimum needs,
- To avail legal facilities in case of grievances,
- No arbitrary punishment should be given to them by the prison administrator,
- They should be given meaningful and gainful employment to earn the living for their families from inside the prison and they should be allowed to communicate with their families on the specified periods,
- They should be released on the due date.
The Standard Minimum Rules by United Nation for equal Treatment to Prisoners defines the purpose of imprisonment and the treatment to prisoners’. Article 57 states that prisoners’ sufferings should not be aggravated as he has already been deprived of his liberties. 2
Article 58 states that depriving offender of his liberties is done to secure the society from the crimes. The purpose can only be achieved if prisoners are reformed and adapt a law abiding life.
Article 60 and 61states that institution should minimise the difference between the prisoners and the person with liberty to help offender socially reform himself.
Therefore, if prisoners’ right to vote is deprived the chance of the prisoner to socially reform himself be minimized. Moreover, the prisons are completely a devils place and the brutality and illegal activities inside the prison is no hidden practice. Barring prisoners’ right to vote would take away all their right to put forth their grievances to the appropriate authorities.
The offender are illegally beaten, raped and sometimes put to death. Their grievances are not publically disclosed and no one cares as they are the social offenders and left to suffer. But by denying the prisoners’ rights take away their hope to improve the prisons. The social reform of the prisoners fail and they continue to be offender once released.
The idea of democracy stands on the concept of the freedom of its citizens to vote and choose their own government. Depriving any person irrespective of their deeds the right to vote would curtail the values the democracies is built on. Every citizen should be allowed to vote so that they can put forth their grievances before the appropriate government through the representative they elected.
Elections encourage to put the views to the appropriate government about the grievances one is facing. Though, without any doubt every punishment to reflect the retributive and deterrent theory but denying the prisoners from their suffrage make them foreign from the society they live in. Allowing the offenders and prisoners the right to vote is considered the theory of rehabilitation. Granting them civic education would a way of resocialising them and rehabilitating on the social, political, civil and moral grounds. It is considered as a step towards making a prisoner responsible citizen.
The entire concept of the democracy is based on the existence of the rights of citizens to choose its government and the concept would fail if any section would be disenfranchised due to any of the reasons.
III. Why the right to vote should not be given to the prisoners’?
The concept of Universal Adult Suffrage is disputable. The one sect the suffrage to all the citizens irrespective of their sex, caste, race, social deeds. The other sects argue against the right given to the offender to vote stating that incarceration is done to abridge all the rights and privilege they have in the outside world.
The Representation of the People Act, 1951 provides for the provision for the exclusion of the voting rights of the prisoners’ under section 62 (5) of the said Act. The constitutional validity of the exclusion was challenged in Delhi High Court in Praveen Kumar Chaudhary v. Election Commission of India3 and the court upheld the provision.
The justification of barring the rights of the prisoners’ given is that they have broken the social contract and their existence is threat to the society therefore they are confined. The confinement is meant to curtail all the rights and privileges in order to deter the person.
The entire liberty of the offender is not curtailed. Their legal right though abridged, but rest of the rights of offender still exits and they can make the use of them. The disenfranchisement is just a deterrent phenomena. There are various frameworks regarding the felony disenfranchisement in India which are less restrictive, moderately restrictive, highly restrictive ad most restrictive framework.
- The less restrictive frameworks allows prisoners the right to vote;
- Under moderately restrictive frameworks prisoners are allowed to vote under specific circumstances;
- And under highly restrictive frameworks prisoners are not allowed to vote; and
- The most restrictive frameworks do not allow the prisoners to vote even after they are released.
India follows the highly restrictive framework that is not allowing prisoners’ to vote during confinement. Though they have other rights to protect them under the Indian Constitution. Anukul Chandra Pradhan v. Union of India4, the provision 62(5) of the Representation of the People’s Act was challenged on the grounds of arbitrariness under Article 14 and also the Article 21 of the Constitution. The Supreme Court rejected the plea stating that it is serve the object sought by the legislation. The court stated the reasoning that a person who is confined due to his conduct cannot demand equal freedom under the constitution. Moreover, the right to vote is statutory right granted and restricted under the Representation of the People Act.
The international conventions on human rights discuss the issues of civil and political rights and neglects the rights of the prisoners to vote. Believing that the prisoners’ should be granted civil death as they have breached the social contract theory the argument is getting advanced. Sometimes, the prisoners are bribed for vote in favour, the purity and secrecy of the ballot has to maintain and abridging the prisoners’ right would maintain the purity of the ballot.
The morality behind the disenfranchisement is that everyone should deter losing the rights in case they broke the moral and social relationship. The policy of the government to punish the offender does not end once the person is convicted it should continue even after that. Blanket ban on the right to vote of the prisoner even after they are released is followed by the government of some nations.
The right to vote is subject to the limitations imposed by the statute. It can be exercised only in the manner provided by the statute. Challenging any provision in regard with the voting rights can be done through the nature of the statute on the grounds of the fundamental rights. Therefore, challenging the validity of sub- Section (5) of Section 62 of the RP Act of 1951 was, held to be not available. ”5
The discussion on the matter is long aged. In 1997, the Supreme Court of India6 stated the drawback in giving the right to vote to the prisoners’.
- Due to lack of managerial resources it would be difficult to bring out every prisoner for vote.
- Convicts cannot claim equal freedom due to the social and moral breach.
- A person of criminal background should not be given the right to vote.
IV. Conclusion
The society argues on the both sides of the coins. The concept of felony disentrancement rose during the civil war curtailing the rights of the prisoners to vote. The concept is supported by one sect and opposed by the other. The argument in favour of the disenfranchisement is that these prisoners’ are social convicts and granting them any rights and privilege would be adding an advantage to them. Debarring their statutory right would deter the people from committing offences. On the other hand people are opposing the disenfranchisement on the ground that incarceration itself debar the convicts all rights and privileges and voting rights should be equally given irrespective of the person’s social and moral deeds, following the norms of the Universal Adult Suffrage. The suffrage is considered as the natural rights of the humans and no one debar them from their right.
The integrity of the democracy is judge by the suffrage given to the citizens of the state. The scholars believe that if the voting rights gets restriction on any grounds would curtail and tarnish the values of the democracy. The societal norms cannot be a barrier in democracy. Though the moral breach is punishable but a person cannot be punished twice for the same offence. The restriction in the voting rights of the prisoners’ amount to double jeopardy.
There are also many drawbacks granting these prisoners the right to vote and therefore, it is completely left over to the appropriate authorities to take appropriate decisions on the voting rights by looking on the managerial aspect of the authorities and nature of the convicts. It is completely a discretionary power of the appropriate government to allow or to deny the voting rights to the prisoners.
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Footnotes
1. Author is a student at JIMS School of Law, Greater Noida, India.
2. Baljeet Kaur, PRISONER’S RIGHT TO VOTE: CITIZEN WITHOUT A VOTE IN DEMOCRACY HAS NO EXISTENCE, EPW engage (25 June 2019), https://www.epw.in/engage/article/prisoners-right-vote-citizen-without-vote ↩
- Baljeet Kaur, PRISONER’S RIGHT TO VOTE: CITIZEN WITHOUT A VOTE IN DEMOCRACY HAS NO EXISTENCE, EPW engage (25 June 2019), https://www.epw.in/engage/article/prisoners-right-vote-citizen-without-vote