Relevance: GS-2: Indian Polity, Fundamental Rights, Election and Voting, Parliament and State Legislatures, Salient Features of the Representation of People’s Act.

Key Phrases: Representation of People’s Act, Supreme Court, Parliament, Rajya Sabha, Legislative Assembly, Legislative Council, Elections, Democracy, Judicial Custody.

Why in News?

• Recently the Bombay High Court rejected the plea filed by two Maharashtra MLAs, who are currently in judicial custody. The MLAs had sought relief to vote in the elections for Maharashtra Legislative Council.

Legal Provisions:

• Section 62(5) of the Representation of the People Act, 1951 states:
  • "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: Provided that nothing in this sub-section shall apply to a person subjected to preventive detention under any law for the time being in force."
• Section 2(1)(d) defines ‘Election’ in this regard and also includes elections of the Rajya Sabha and the Legislative Councils of the States.
• When section 62(5) is read with section 2(1)(d), it implies that the members of Lok Sabha and the Legislative Assemblies of different States are barred from voting for elections to the seats of Rajya Sabha and the Legislative Council of the concerned states respectively.

Constitutional Status of Voting Right:

• There is no explicit mention of the right to vote in Part III of the Constitution of India, which deals with fundamental rights.
• The principle of adult suffrage is enshrined under Article 326 of the Constitution of India. It confers on every citizen of over 18 years of age the right to be registered as a voter for the elections of Lok Sabha and Legislative Assembly of their respective States.
• This right is subject to disqualification either under the Constitution or under any other appropriate legislative statute.
• In People's Union for Civil Liberties (PUCL) vs Union of India, the Supreme Court recognised the constitutional status of the right to vote. This was further reiterated in Rajbala vs State of Haryana.
• In this judgment the apex court clarified that adult suffrage or the right to vote and right to contest elections are not merely statutory rights but they are certainly constitutional rights, if not understood to be fundamental rights.
• The court opined that since the Constitution itself provides for some qualifications and disqualifications to be a voter and to contest elections, it testifies the fact that these rights are nothing less than a constitutional right.
• Later in Kuldeep Nayar vs Union of India, the Supreme Court didn't overrule the PUCL judgment, but a rider was added that right to vote has a constitutional status only to the extent that it leads to right to have a free and fair election.
• The preamble to the Constitution of India envisions the Indian nation-state to be a 'democratic republic'. A democratic form of government is best defined as a government by the people, of the people and for the people, whereas Black's Law dictionary defines a 'republican government' as a "government by representatives chosen by the people". Democracy and free and fair elections are a part of the basic structure of the constitution. For elections to be a free and fair exercise, a guarantee of right to vote to those who constitute the electorate is a necessary precondition.
• The recognition of the right of the voters to vote might not be in itself sufficient for elections to be free and fair but the creation of a condition where voters can ever exercise their electoral right with a free will is a sine qua non.
• As soon as the principle of free and fair election and democracy become a part of the basic structure, giving similar stature to voting rights should be the natural corollary.
• Even if the right to vote becomes a part of the basic structure or be upheld as a fundamental right under Article 19(1), the same cannot become an absolute right.
• Article 19(2) provides scope for imposing certain reasonable restrictions on the exercise of the rights guaranteed under article 19(1).
• Also, Article 326 confers power upon the legislature to impose certain restrictions on the ground of non-residence, unsoundness of mind, crime or corrupt or illegal practice.

Arguments for the Right to Vote of Elected Representatives as inmates:

• In an election, where the elected representatives are directly elected by the people, voters cast their votes in an individual capacity and their vote represents their will. But in an election for the members of Rajya Sabha and the Legislative Council, people express their preferences through their elected representatives.
• The elected representatives when exercise their right to vote, they vote not just in their personal capacity but they reflect the will and aspirations of general masses.
• Article14 of the Constitution allows for reasonable classification for the purpose of legislation, provided that these two conditions are satisfied:
  1. that the classification has its foundation on an intelligible differentia and
  2. that such differentia has a reasonable and rational nexus with the object which the prescribed statute wants to achieve.
• In the election for the members of Rajya Sabha and Legislative Councils, the voters vote on behalf of all those whom they represent in the lower house.
• Another argument which can be a basis for lifting the embargo of section 62(5) for indirect election is the quantitative difference of voters in both of these elections. To allow the prisoners to vote in direct elections, the State will have to make logistical and administrative arrangements at a mammoth scale.
• In Ankul Chandra Pradhan vs. Union of India, the court upheld the constitutional validity of section 62(5) citing that in order to permit every person in prison to vote, the State will have to make large scale security arrangements.
• Deployment of police forces and given the under availability of police forces, it seems to be a rather far-fetched and implausible idea to allow all the prisoners, the right to vote.
• This constraint will not be a hindrance in making arrangements for providing access to voting rights to voters in indirect elections as the number of voters would be so less that infrastructural and security arrangements can be easily deployed.
• There seems to be a logical fallacy in the legislative policy allowing people with criminal antecedents to contest elections but denying the right to vote.
• The oath, which the members of parliament and the members of legislative assembly take after getting elected, confers upon them some obligations and responsibilities, which amongst other things also includes the fulfilment of constitutional duties.
• Section 62(5) by prohibiting the members of parliament and members of legislative assembly to vote in the election for Rajya Sabha and Legislative Council members, restraints them in the discharge of their constitutional duty.

Conclusion

• Partial lifting the embargo of section 62(5) for indirect elections should be put for consideration to ensure that it does not become an impediment for the MPs and MLAs in the discharge of their constitutional duties and exercise of their rights to ensure that it should not prejudice the rights of the citizens, whom these elected representatives represent. The status of the right to vote must be given an expansive meaning to strengthen the democratic ethos of the country.

Mains Question:

Q. Discuss the constitutional status of the right to vote with special reference to the right of the elected representatives who are in prison. (250 words).