BENGALURU: While Delhi Chief minister Arvind Kejriwal is out of prison and can cast his vote in the Lok Sabha elections in the next few days, other undertrial prisoners are not so lucky. Lakhs of such prisoners, put in for petty offences, are languishing in jails across the country as they have little or no legal representation to apply for bail.
Though they are not found guilty yet, their constitutional right to vote is denied by the system. Section 62-5 in the Representation of People’s Act 1951 says, ‘’No person shall vote at any election if he is confined in a prison, whether under a sentence of imprisonment or transportation or otherwise or is in the lawful custody of the police.’’
Venkatesh Nayak, National Director of Commonwealth Human Rights Initiative based out of Delhi, said, “Lack of legal representation or money to pay for sureties deprive them of the right to vote. Though no court has found them guilty, their constitutional right to vote is denied by the system. The Supreme Court, recognising campaigning as a fundamental right being the leader of a recognised political party, granted interim bail to Kejriwal. But voters are primary stakeholders in any election. A PIL challenging the denial of the right to vote for those in prison or police custody is pending before the Supreme Court for long. The rights of incarcerated persons, whose names continue to remain on the electoral rolls, are denied in every election because the apex court has not recognised this issue as extraordinary in the manner of Kejriwal’s case. With utmost respect to the majesty of the court, it must be pointed out that this is clearly a denial of the constitutional promise of justice and equality embedded in the Preamble and also the fundamental right to equal treatment by the law under Article 14.’’
Retired senior IAS officer MG Devasahayam said, “It is strange that a person who is convicted can contest an election and win if there is a stay in his case, but an undertrial, who may be totally innocent, is denied an opportunity to vote. It is an anomaly. Either the government or courts need to address this issue.’’
Former Bengaluru police commissioner Dr Ajai Kumar Singh said, “The law says they cannot vote. The law needs to be suitably amended to allow them to vote.’’
Supreme Court advocate KV Dhananjay said, ‘’It is time for Parliament to modify this law to allow undertrials to vote. One should note that the law even allows a convicted legislator who stands automatically disqualified under the law to still retain his legislative seat through judicial intervention. There is no reason why the law should not allow undertrials who are presumed innocent to vote.’’
Justice Hari Paranthaman, a former High court judge, said, “Perhaps it is too late to affect this outcome before this election. Someone concerned could have raised this issue well before the elections.”
Will the system take up the issue and enact legislation? Only time will tell.