Relevance: GS-2: Structure, organization and functioning of the Executive and the Judiciary Ministries and Departments of the Government; Salient features of the Representation of People's Act.

Key Phrases: Representation of the People Act, 1951, Right to Vote, Universal Adult Suffrage, Voting Rights for Undertrial Persons, Disenfranchisement, Wrong Choice of Words

Why in News?

• Two MLAs who were in prison in connection with money laundering offences, approached the courts to request for their temporary release so that they can cast votes in the election in order to discharge their duty as sitting MLAs.
• However, their request was rejected, first by a special Judge under the Prevention of Money Laundering Act, then by the Bombay High Court, and finally by the Supreme Court.

The criterion for disenfranchisement in the RPA Act,1951:

• The objective of the legal provision, Section 62(5) of the Representation of the People Act, 1951 as declared by the supreme court is to exclude ‘persons with criminal background from participating in elections.
• Ideally, this objective can be achieved through a provision that disenfranchises persons who have been convicted of certain kinds of grave offences.

What are the issues with the legal provision?

1. Use of the word Confinement instead of Conviction:
   • Section 62(5) does not use conviction as the ground for disenfranchisement, instead it uses confinement.
   • As a result, a largely innocent population is not allowed to vote i.e.,
     • under trial prisoners cannot vote in the elections (who constitute over 75% of India’s nearly 5 lakh prisoners).
     • Persons detained in civil prison for failing to repay debt can also not vote.
2. Criminal out on bail is eligible to vote:
   • A person who has been convicted for a criminal offence whose guilt has been determined and has managed to secure bail can vote is entitled to the right to vote on the grounds of wrong selection of word confinement in the act.
   • If the objective is to keep criminals away from elections, this is an anomaly.
3. Contradiction with article 14:
   • Section 62(5) is in direct conflict with Article 14 of the Constitution (equality before the law to all persons).
   • Whenever a law treats two groups of persons unequally, it must satisfy a set of basic tests under Article 14 to be valid.
   • The distinction created by the law must be based on coherent differences between the two groups of persons, and these differences must have a rational link with the objective that the law seeks to achieve.
   • Section 62(5) treats a group of people differently by stripping them of the right to vote.
   • What sets this group apart from those allowed to vote is their confinement in prison.
   • This has no rational link with the objective of the law, i.e., keeping criminals away from the electoral process.
   • As alternatives, the provision could have disenfranchised persons convicted of certain heinous offences or those sentenced for a minimum duration.

Best practices in other Countries:

1. The United Kingdom: Only convicts sentenced to prison for four years or more cannot vote.
2. Germany: Only persons convicted of certain political offences are disenfranchised.
3. In Canada: The law formerly restricted all prisoners from voting, but the constitutional courts intervened and struck it down for being arbitrary and disproportionate.

The rationale for the dismissal of the plea of undertrial MLAs by the Supreme Court

• The Supreme Court is of the view of reconsidering the constitutionality of the provision of the RPA act.
• The reason for this shift is that the voters who were deprived of voting rights in this instance are constitutional functionaries and not ordinary citizens.
• Through the MLAs’ votes, the residents of their constituencies indirectly exercise their franchise in the election to the Vidhan Parishad.
• By preventing the two MLAs from casting their votes, the court has inadvertently deprived all their constituents of their franchise.
• The question cannot be whether the voter is an ordinary citizen or an MLA, but whether the voter, given their conduct, deserves to participate in the electoral process or not.

Conclusion:

• The courts have always lauded the objective of weeding out criminal elements from the electoral process, but have not examined whether the provision can claim to achieve this aim in the manner in which it is worded.
• The apex court must re-examine the issue in the totality of its circumstances.
• Parliament must replace the provision with an appropriately worded version disenfranchising only certain classes of prisoners.
• The voting right allotment based on whether the voter is an ordinary citizen or an MLA is none other than a constitutional failure.

Source: The Hindu

Mains Question:

Q. Discuss in light of the recent SC’s dismissal of requests for voting rights by the undertrial MLAs. (250 words).