The recent advent of the Special Intensive Review (SIR) by the Election Commission of India has opened a new question for consideration: can an imprisoned person be allowed to vote?
Under Article 326 of the
Constitution of India, every adult citizen of India who is not
disqualified on the ground of non-residence, unsoundness of mind, crime
or corrupt or illegal practice, shall be entitled to be registered as a
voter at any election.
The Constitution does not bar
an imprisoned person from voting. However, the Constitution does mention that
crime, corruption, and illegality shall disqualify a person’s right to vote. In
effect, the Constitution assumes that imprisonment can only come from crime,
corruption, and illegality, allegations that are proven in a court of law
and then sentenced from imprisonment. As we shall soon see, the assumption does
not hold in India.
But before going there, let us
have a look at the much quoted section 62(5) of the Representation of People
Act, 1951 (RPA). The RPA states that no person shall vote at any
election if he is confined in a prison under a sentence of imprisonment, or is
in the lawful custody of the police; provided that this shall not apply to a
person subjected to preventive detention.
Section 62(5) of the RPA rests
on an outdated assumption that all imprisonment without conviction must be
preventive detention. Ordinarily, a person imprisoned should be “under a
sentence”. The unstated assumption of the law is that imprisonment is ordinarily
levied on a convict. This assumption fails woefully in India.
As per the 2023 report
of the National Crime Records Bureau (NCRB) under the Ministry of Home
Affairs, 74% of the Indian prison population is undertrial, i.e.
prisoners who have not been convicted but are awaiting trial or bail. This is
nearly 4 lakh citizens. These are not convicts. They are citizens whom the
State has failed to prove guilty; yet continues to imprison. The overall
conviction rate is 54%. This means that nearly 2 lakh citizens are imprisoned
at present who will eventually be acquitted. India imprisons citizens not for
what they have done, but for what they might do. The Supreme Court judges have
repeatedly called
for reforms in imprisonment and bail provisions of the law in view of
this gross injustice.
The Government has not been a silent
spectator. But Governmental action should not be mistaken for reform; it is
simply noise. In 2024, in an attempt to remove the British colonial hangover,
India saw a major
shift in its criminal laws. The
Indian Penal Code (IPC) was replaced by the Bhartiya Nyaya Sanhita (BNS)
and the Code of Criminal Procedure (CrPC) was changed to Bhartiya Nagrik
Suraksha Sanhita (BNSS). Interestingly, the CrPC 1973 was not even a
colonial legislature. In what can only be termed as a typical fashion of the
Government, new names were imprinted on old legislations.
Under section 187 of the BNSS
(167 of CrPC), a magistrate can order for a police custody of maximum 15 days
and a judicial custody of 60 / 90 days, depending on the severity of the crime.
During this time, the investigating authority needs to complete the
investigation and file a chargesheet before the court for the trial to take
place. The accused is placed under custody for the purpose of investigation,
and so that he may not tamper with the witness and / or evidence during the
investigation. If the chargesheet is not filed during the 60 / 90 day period,
the accused gets “default bail” u/s 187(3) of the BNSS (167(2) of the CrPC).
Once the chargesheet is filed,
the case moves from the pre-trial stage to the trial stage. The investigation
is complete, but the court needs to ensure the presence of the accused during
trial. For this, the courts can continue to keep the accused in judicial
custody u/s 346 of the BNSS (309 of the CrPC).
Section 346 of the BNSS allows
the court to remand the accused for a period not exceeding 15 days at a time
until the trial is over. This 15-day period is repeated each time the court
issues a remand order. In practice, the accused remains imprisoned for months
or years while being remanded “every 15 days”. The court applies no mind for
any fresh reasoning for extending the imprisonment of the accused by simply
copy-pasting the previous order.
Remand is not conviction, but
the outcome of both is imprisonment. Hence, the state does not need to convict
a person to punish him. The state can simply extend remand indefinitely. Remand
exists because the State assumes that liberty creates a risk of misconduct. But
in practice, this assumption becomes a substitute for proving guilt. Instead of
protecting society through evidence, the State protects itself through custody.
This is not a mandate by the
constitution, but a risk-averse practice continued from the British colonial traditions.
Under the British rule, liberty was secondary to control. Unfortunately, this
tradition has continued in independent India. The police take advantage of this
practice and oppose bail reflexively, treating custody as leverage on the
accused.
The 15-day time-limit was set
to ensure liberty, but the courts have converted it into rolling imprisonment. The
burden flips to the accused – liberty must be earned, while imprisonment is
presumed. The presumption of innocence survives only in theory. In custody
courts, the presumption is reversed. The investigating agencies and the courts
need not even find a reasonable ground to continue the imprisonment of an
accused. In effect, this violates the Right to Life and Liberty under Article
21 of the Constitution of India.
Any law student or graduate
will tell you that “bail is rule and jail is exception” and “delay of justice
is denial of justice” are some of the first teachings at law school. We have
heard that Indians have a right to life and liberty under Article 21 of the
Constitution. Yet, in practice, such words are only that… words. In practice, 4
lakh Indian citizens linger on waiting for bail or trials. Often the accused does
not even have a family or friend prosperous enough to furnish the bail
bond amount.
The biggest prison sentence in
India is not awarded by conviction, it is awarded by delay. The solution is
simple –
- No “automatic” renewal of remand
- Judges must give reasons for denying liberty of a person while the trial is pending
- Automatic bail hearings where the investigating agency needs to justify the need for continued remand
- Disciplinary consequences for copy-paste remand orders
But it will take a generation
of judges to build new habits. Every remand order is a day of someone’s life.
If courts cannot justify that day, they have no right to take it. Liberty is
not a privilege granted after acquittal; it is a right that may be curtailed
only after conviction. Until our courts act on this principle rather than
merely reciting it, the Constitution will remain an idea, not an experience.
Changing the names of laws
rather than actually changing laws renders the Indian sovereignty as a
meaningless change of words, while the Indian mindset continues to remain under
the colonial rule. The British once used imprisonment without trial to control
a population. Independent India has no reason or excuse to inherit that legacy.
The question before India is
simple: will we continue to imprison first and justify later, or will we
finally build a justice system where liberty is the norm and custody requires
proof?
