The Election Commission (EC) has set up a seven-member committee to explore the possibility of lifting the ban on voting for prisoners.

Under Section 62(5) of the Representation of the People Act, 1951, individuals in lawful custody of the police and those serving a sentence of imprisonment after conviction cannot vote. Chapter 43 of the Reference Handbook on the General Elections, 2014, also excludes undertrial prisoners from participating in elections even if their names are on electoral rolls. Only those under preventive detention can cast their vote through postal ballots.

Headed by Deputy Election Commissioner Sandeep Saxena, the seven-member ECI panel was set up in April after the ECI received several representations, including one from former Delhi Police officer Satyavir Singh Rathi, on why prisoners should not be disenfranchised.

An Assistant Commissioner of Police at the time, Rathi was convicted in an encounter case in Delhi’s Connaught Place of 1997. He is serving sentence in Delhi’s Tihar Jail at present.

Sources told The Indian Express that the committee, of which the Bihar chief electoral officer (CEO) and the Delhi CEO are also members, is examining the practice followed by other countries. The UK, Austria, Russia and Armenia, for instance, do not allow prisoners to vote, while Spain, Sweden, Switzerland and Finland do. Others such as Italy and Greece provide conditional permission under which prisoners with life sentence lose their right to vote.

“The committee has sought views of CEOs of all states to get an idea of ground realities,” a source said. “If the members agree to recommend voting rights for prisoners, then this can be done through either proxy voting or postal ballots, or mobile voting booths in prisons. But there are several logistical challenges to make this possible.”

The ‘Prison Statistics India, 2014’ published by the National Crime Records Bureau, says there were 2,82,879 undertrials and 1,31,517 convicts lodged across 1,387 prisons in the country as on December 31, 2014.

The dominant position in India, established through judgments of the Supreme Court, is that the right to vote is not a fundamental right or a constitutional right but a statutory right that can be enjoyed on certain terms as determined by the legislature.

The SC has observed that a person is in prison because of his or her conduct, and cannot claim equal rights as others who are not incarcerated.

Human rights activists, however, have criticised the voting ban on the ground that it makes no offence-based or sentence-based classification — that is, prisoners are debarred from voting irrespective of the gravity of the offence they have committed, or the length of their sentence. It also makes no distinction between convicted prisoners, undertrials, and those in lawful police custody.

“In my opinion, undertrials should be allowed to vote. This is because there are many people, awaiting trial, who have spent more time in prison than the actual term their alleged crime merits. Their numbers are much bigger than convicts,” said Prof Jagdeep Chhokar, founder of the Association of Democratic Reforms, an advocacy group that works on electoral reforms.

“As for convicts, I am not entirely convinced that each one of them should be disenfranchised,” he said. “There are different kinds of punishments — corrective, repudiative, exemplary. I think this issue needs more debate. Moreover, it’s ironic that convicts can contest elections but cannot vote.”

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