UPSC Daily Editorial Analysis | Right to Vote | 29 June 2022

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What the article is about?

  • Talks about the right to vote in case of person in confinement.

Syllabus: GS-II Indian Polity, Fundamental Rights, Election and Voting

Right to vote:

  • The right to vote for two MLAs confined in prison, was rejected under the Section 62(5) of the Representation of the People Act, 1951.
    • The Supreme Court has observed that the intent of this provision is to maintain the integrity of elections by excluding ‘persons with criminal background’ from participating in them.
    • Ideally, this objective can be achieved through a provision which disenfranchises persons who have been convicted of certain kinds of grave offences.
  • However, Section 62(5) does not use conviction as the yardstick for disenfranchisement; it uses confinement.
    • As a result, undertrial prisoners (who constitute over 75% of India’s nearly 5 lakh prisoners) cannot vote.
    • Neither can persons detained in civil prison for failing to repay a debt.
    • But remarkably, a person who has been convicted for a criminal offence and has managed to secure bail can vote.
  • If the objective is to keep criminals away from elections, this is an anomaly.
    • Indeed, it appears that as a result of a poor choice of words, an otherwise well-intentioned law has snatched away the right to vote from an undertrial who is presumed to be innocent and from a civil offender, but has granted it to a criminal convict (out on bail) whose guilt has been determined.
    • This puts Section 62(5) in direct collision with Article 14 of the Constitution (equality before the law to all persons).
    • Through the MLAs’ votes, the residents of their constituencies indirectly exercise their franchise in the election to the Vidhan Parishad. By preventing the two MLAs from casting their votes, the court has inadvertently stripped all their constituents of their franchise. 

Way Ahead:

  • Whenever a law treats two groups of persons unequally, it must satisfy a set of basic tests under Article 14 to be valid: the distinction created by the law must be based on coherent differences between the two groups of persons, and these differences must have a rational link with the objective that the law seeks to achieve.
    • Section 62(5) treats a group of people differently by stripping them of the right to vote.
  • As alternatives, the provision could have disenfranchised persons convicted of certain heinous offences or those sentenced for a minimum duration.
    • In the U.K., for instance, only convicts sentenced to prison for four years or more cannot vote.
    • In Germany, only persons convicted of certain political offences are disenfranchised.
    • Where the law formerly restricted all prisoners from voting (Canada, for instance), constitutional courts intervened and struck it down for being arbitrary and disproportionate. 

Conclusion

  • The apex court must re-examine the issue in the totality of its circumstances and Parliament must replace the provision with a tightly worded version disenfranchising only certain classes of prisoners. 



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