Undertrials can contest elections but cannot vote

May 1st, 2009 - 1:41 pm ICT by IANS  

By Richa Sharma
New Delhi, May 1 (IANS) Call it a paradox of democracy - undertrials lodged in Indian jails can contest elections but cannot vote.

Nearly 250,000 undertrials lodged in various jails in the country will not be able to cast their votes this Lok Sabha elections as the law denies them the right to vote. The constitution, however, allows undertrials to contest elections from behind the bars.

Despite a recommendation by the National Human Rights Commission (NHRC) seeking voting rights for undertrials in jail, the Indian government is yet to take a call on it.

“The commission in October 2008 recommended voting rights for undertrails. The recommendation was forwarded to the home ministry and the government will have to take a call on it,” an NHRC official, who did not want to be identified, told IANS.

Section 62(5) of the Representation of the People Act, 1951, denies the right to vote to undertrials who are in prison or police custody while permitting this to those out on bail.

In its recommendation last year, the NHRC said giving undertrials the right to vote “will have a positive impact on bringing out changes in the attitudes of the undertrials and the people”.

If this was done, the NHRC felt, it would impart a sense of dignity among undertrials and they would also be considered part of society.

According to eminent lawyers and human rights activists, the Representation of the People Act should be amended to provide this right to undertrials.

“The confusion has been created by Section 62 (5) of the Representation of the People Act, 1951, vis-a-vis Article 326 of the Constitution of India,” said eminent criminal lawyer K.T.S. Tulsi. “While the former bars prisoners from voting, the latter says all those who are 18 years and above can vote. It’s high time prisoners fight for their rights and approach the court.”

Slamming the Indian government for not taking steps to provide voting rights to undertrials, Supreme Court lawyer Pinki Anand told IANS: “In various foreign countries the provision of granting voting rights to prisoners are there, but it is a very shameful act that one can contest elections from jail but cannot exercise their right to vote in India.

“There should be a rethink on the relevant section of the Representation of the People Act. We are not living in the 1950s.”

In 1997, the Supreme Court had dismissed a writ petition by advocate Anukul Chandra Pradhan, seeking voting rights for undertrials.

According to the National Crime Records Bureau there are now 245,244 undertrials in various jails in India.

(Richa Sharma can be contacted at richa.s@ians.in)

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