New Delhi

The Supreme Court needs to reconsider its approach to electoral reform and the right to vote. Rejecting labels of ‘purity’ and ‘pollution’ would be a start

On October 1, the Supreme Court passed judgment in an election petition filed by an unsuccessful candidate in the Manipur Legislative Assembly elections of 2012. The Representation of the People Act, 1951 requires these petitions to be decided by the relevant High Court within six months. Quite understandably perturbed by the High Court’s delay in deciding the case, the Supreme Court directed it to do so by February 2016. In its judgment, the Supreme Court held that the fundamental purpose underpinning the expeditious disposal rule was to ‘sustain the purity of parliamentary democracy’.

The Court has, even in its most progressive judgments, increasingly relied on the disquieting notion of the purity of parliamentary democracy. This notion has, for instance, been cited in judgments directing the Election Commission to require candidates to furnish information about their criminal record (Union of India v Association for Democratic Reforms), and setting aside the election of a candidate that failed to disclose material information (Kisan Shankar v Arun Dattatraya Sawant). But a disturbing outgrowth of the Court’s conception is the fact that the franchise can be denied to those who dilute its purity. Remarkably, then, the Court — otherwise extolled as a champion of unenumerated fundamental rights such as the right to shelter, the right to livelihood, and right to a clean environment — has not only refused to recognise the right to vote as a fundamental right, but gone further by accepting that it is a ‘privilege’ that ‘may be taken away’.

Chintan Chandrachud

In this context, it is not hard to understand the Supreme Court’s judgment in 2013 legitimising the long-standing statutory ban on prisoner voting rights. In its judgment, the Court held that since prisoners were deprived of voting rights, they would also be automatically disqualified from standing for elections during periods of incarceration. The implications of this judgment are clear. Prisoners are second class citizens and it is not only proper, but also necessary, to exclude their ‘polluting’ influence from the democratic process. Consider this extract from the judgment of the Patna High Court, which was affirmed by the Supreme Court in appeal: ‘the issue of crime as attached to candidates or voters pollutes the entire election process. It effects the sanctity of elections as a whole. It taints democracy.’

Over the last few years, there has been an acrimonious debate in the U.K., which also bans prisoners from voting, on whether at least some prisoners should be enfranchised. The debate was prompted by a judgment of the European Court of Human Rights in 2005, finding that the ban violates European Convention rights. India’s ban on prisoner voting is draconian in two respects. First, it makes no offence-based or sentence-based classification — prisoners are debarred from voting irrespective of the gravity of the offence that they have committed or the length of their sentence. Second, the Indian statute (unlike its British counterpart) makes no distinction between convicted prisoners, undertrials, and those in lawful police custody. This means that those whom we presume innocent until proven guilty — and comprise more than 65 per cent of the prison population — are denied the right to vote.

In March 2015, the Law Commission published a 268-page report on electoral reforms. The report makes important recommendations including strengthening the office of the Election Commission, establishing an electoral offence against ‘paid news’, and setting up ‘election benches’ in High Courts to curb delays of the kind condemned by the Supreme Court. Remarkably, although the report makes significant recommendations about how the electoral process can be reformed, it fails to consider the more fundamental issue of who the participants in that electoral process are. The report is silent about whether Section 62(5) of the Representation of the People Act, which marginalises more than 4,00,00 people from the political process, is consistent with a mature, inclusive democracy.

The Supreme Court needs to reconsider its approach to electoral reform and the right to vote. Disavowing the taxonomy of ‘purity’ and ‘pollution’ — terms that represent a dark history of entrenched social prejudices — would be a good beginning.

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