Prisoner’s right to vote

By Jagriti  thakur and Vanshika yadav)

Introduction – The constitution of India and representation of the people’s act provide fundamental system for election in our country. India is a democratic country and federalism is a important substance . Under constitutional provisions the chief election commissioner has an important role to play .   A prisoner can contest election from the jail while is under detention. It is however , ridiculous to state that prisoner cannot cast the vote. There are number of occasions where the people have contested election from the jail or some of them also succeeded and won elections

We know that the prisoner’s right to vote is  very valuable right of every prisoners. This system have till now no provision of compensation. To be paid and denying prisoners to cast the vote whee a prisoner to be found innocuous by the court at the end of the trial. Without a reasonable cause a prisoner has deprived his liberty provided money of as a compensation ,  according to the supreme court and the lowers . these facilities are only for the prisoners who needs has been deprived his or her liberty which are under of the trials.

In the modern democratic age sovereignty( where people are internally and externally free according to their decisions) is vested with people. Under of in this type of direct election there is low possibility of  election of every representatives but there is a very big possibility of competent or able representatives being elected under the method of this indirect election. The main of this is because the voters who elect the candidates are generally better than the common voters. They make use of their votes ,  The whole country is divided into equal territorial areas out of which the people elect their representatives too. This is simply that majority system is more prominent majority system is most popular of democratic states . Under the indirect method of election system a candidate who gets more votes than other candidate is declared elected.

SECTION 62

Now this question is whether a person convicted  by a court or who remains in jail as a prisoner whether under trial or in police custody and is deprived of his rights of casting his vote could amount to violation of his fundamental rights given to him under article 14 , 9 and 21 of the constitution? Whether  such provisions should be declared ultra vires and void to the constitution? There is yet another question as provided under section 62(5) of the representation of the people’s act which states that the prisoners are supposed to surrender their right to vote under the said act but the persons who are detained under national security act entitled to cast their votes . Thus that is discriminatory provision.

NEW DIMENSION –WHO  IS NOT ENTITLED

The contention that a person , who is confined in the prison , whether under a sentence of imprisonment or transportation or otherwise or is in the a lawful custody of the police is not entitled to vote by virtue of section 62(5) of the representation of the people act 1951 and accordingly is not an “elector” and is therefore, not qualified to contest election to the house of people or the legislative assembly of a state because o fifth provision in section 4 and section 5 of the said act.

RIGHT TO VOTE IS A STATUTORY RIGHT

A right to vote is a statutory right. Persons convicted of the crime are kept away from election to the legislature , whether to state legislature or parliament and all other public elections. The law temporarily takes away the power of such persons to go any were neither election scene . To vote is a statutory  right. It is a privilege to vote but this privilege may be taken away . In the case CHIEF ELECTION  COMMISSIONER V JAN CHAUKIDAR  in the patna high court, the elector would not be qualified even if his name is on the electoral rolls . The name is not struck off, but qualification to be an elector and the privilege to vote when in the law custody of the police is taken away.

While affirming  the aforesaid judgment of the patna high court , the supreme court of India ruled that person who has no right to vote by the virtue of the provisions of the section 62(5) of the act, 1951 is not an elector and is is therefore , not qualified to contest the election to the house of people or the legislative assembly of state. It is submitted that once a person is not entitled to vote by virtue of any disqualification provided under the law and he/she the elector , is not also not entitled to contest election to the house of people /legislative assembly of a state.

CRIMINALISATION OF POLITICS

There is no doubt that the criminalization of politics is matter of grave concern and debated throughout the country and all measures are being take to prevent it and to ensure crime free politics . No criminal should be allowed to contest election or to cast the vote . In view of this, the election commission has recommended that any person convicted by the court and sentenced for more than six months should be disqualified  from contesting election for six years . the election commission has also suggested a number of changes in the present representation of the people’s act to remove the lacunae that have provided even history shifters to contest election . The election commission has made herculean efforts to invoke a nationwide debate on the hot issue for preventing criminalization of politics by recommending that those who have been sentenced for imprisonment up to six months be barred from contesting election irrespective of the fact that their appeals are pending in higher courts .

According to the election Commissioner 40 members of the parliament and about 700 out of the 4,072 legislators in states assemblies have criminal records . This revelation had invited a hot discussion on this problem.

It is unfortunate to note that these M.P.’s and M.L.A ‘s having criminal records are sitting members in the current parliament and in the state assemblies respectively.

According to the election commission the new rules would be applicable to coming election is matter of some consolation . however the election commission has issued a directive that any person sentenced  by competent court under section 8 of the representation of the people act would be debarred from the contesting elections.

For  the first time in Rajya sabha ‘s election nomination form were required  to be submitted along with affidavits declaring that the candidate didn’t have criminal records.

Another issue is that of checking the limits of election expenses fixing a limit of rupee 50lakhs for the parliamentary constituencies and rs. 6 lakh for the assembly constituencies . However, election commission has suggested that the power of fixing the ceilings for election expenses in the case of larger or smaller constituencies should be vested with the election commission .

Another point of the controversy is regarding the politicians seeking entry to Rajya sabha by giving false declarations of their address and them getting their names enrolled in the electoral rolls of the state . Their problem can be solved provided the relevant laws are amended to entitle anybody to contest elections from the parliamentary constituency in the country so long as she or he is a lawful voter.

Here it is pertinent to mention that the reference measure without any legislative background are useless since the general orders do not specifically decide the fate of under trial prisoner . The election commission has a vital role to play in abolishing this kind of discrimination right to adult franchise which should be exercised by all the persons articles 14, 19 and 21 of the constitution deal with fundamental rights that a person should not be discriminated and every person should be assured of exercising all his rights . Under the constitution right to adult of franchise has been guaranteed to every citizen of India . Thus, it is a very unfortunate to note that our constitution has guaranteed the right to vote to the citizen of India but other subordinate authorities have curtailed the prisoner’s right to vote.

CONCLUSION–  At last we conclude that the right to vote is not an ancient right but it is true that all civilized society and democratic  countries have recognized the right to adult of franchise as a basic fundamental right and also as a human right . Under the present legal system a prisoner cannot exercise his right to vote but a prisoner can be a member of parliament or a member of legislative assembly or even a minister . Thus legal position of a prisoner has to be changed and impartiality removed.

SC terms criminalisation of politics as ‘rot’, says may ask EC to deal with it

Dubbing criminalisation of politics as “rot”, the Supreme Court today said it may consider directing the Election Commission to ask political parties to get their members disclose criminal cases against them so that the electors know how many “alleged crooks” are there in such parties. 

The observation by a five-judge constitution bench headed by Chief Justice Dipak Misra came when it was told by the Centre that considering the concept of separation of powers, the issue of disqualification of lawmakers fell under the domain of Parliament.

“Everybody understands that (doctrine of separation of powers among Executive, Legislature and Judiciary). We cannot direct Parliament to make a law. The question is what can we do to contain the rot,” the bench, also comprising justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra, said.

While hearing PILs seeking to bar persons facing serious criminal charges from electoral politics, the bench took note of the suggestion of senior advocate Krishnan Venugopal, representing lawyer and BJP leader Ashwini Upadhyay who has filed one of the PILs, that the court may ask the poll panel to direct political parties not to give tickets to or take support from independent candidates facing serious criminal charges.

“Criminalisation of politics is antithesis to democracy,” the bench said, adding, “We can always direct the Election Commission to ask political parties to get members and to be members to declare on affidavit if there is any criminal case pending against them and such affidavits should be made public so that voters know as to how many alleged crooks are there in a political party”.

Referring to the “symbols order” and said if a party gave ticket to a person facing criminal or any other case, then the election symbol of that party would be de-recognised, the court said it was seeking upholding of “democratic ideals” and not “legislating” on the issue.

“Nobody is disqualifying anybody. What we may direct the Election Commission is that the election symbol of a political party be taken away if a person, facing criminal charges, is allowed to contest the election on its ticket,” it said.

The bench also said it has to “completely steer clear” of the aspect of disqualification of a lawmaker as it did not fall under its the domain. 

Senior advocate Dinesh Dwivedi, appearing for petitioner NGO ‘Public Interest Foundation’, exhorted the court to venture into the area of barring a person or a lawmaker from entering into electoral politics after the framing charges against them in criminal cases.

He referred to a report of the Law Commission and said it was an “eye opener” document prepared at the instance of the apex court. 

The report says that persons, having criminal records, have better chances of winning elections and the court should issue directions as the law is silent on the disqualification of such members or candidates, as was done in the case of Visakha when guidelines were laid on the issue sexual harassment at work place.

“The law is not silent, this is the whole point. The law provides for disqualification very clearly after a lawmaker is convicted,” the bench said.

“The law is silent as it provides for disqualification at the stage of conviction only. If a person is charge-sheeted or the court has framed the charges in the case then there was no provision of disqualification. The court can pass the directions in this regard,” Dwivedi argued.

The bench also said the Visakha and the anti-ragging guidelines were issued by the court as they related with violation of fundamental rights but this was not the case here. 

“Your argument can be encapsulated in one sentence that since you cannot issue mandamus (judicial writ issued as a command) to Parliament, then issue the writ to the election commission,” the bench said.

Senior advocate Krishnan Venugopal, who is fighting the case against his father and Attorney General K K Venugopal, suggested that to deal with the issue, either a law may be passed or the court can direct the poll panel to ask political parties not to give tickets to persons with criminal records.

He also suggested that the fixed election symbol of a national or state level recognised political parties may be cancelled if they gave tickets to such candidates.

Venugopal also said that the EC can ask the political parties to insert by-laws in their constitutions that they will not allow persons, who are facing trial in cases where minimum sentence prescribed is five years jail term, to fight elections on their tickets. It would serve the “larger good of the society”, he added.

At the fag end of the hearing, Attorney General K K Venugopal vehemently opposed the submissions of his son Krishnan Venugopal and Dinesh Dwivedi, saying they were trying to achieve a “particular result indirectly” which they cannot achieve “directly”.

“The question is whether it is the matter to be dealt by the legislature or it can be dealt by the judiciary… can the five judges sitting in the constitution bench decide the disqualification,” the top law officer said.

The bench countered him saying it understood the concept of separation of powers and cannot direct Parliament to make a law, but the “question is what can we do to contain the rot”.

The advancing of arguments would resume on August 28.

UTOPIA – A reality or a myth

utopiaShivam Goel

“Looking at the world in a grain of sand and heaven in a wild flower,

Holding infinity in palm of your hand and eternity in an hour.

Everything that ever came to reality was once just an imagination.”

— (The Dangerous Knowledge, a documentary film)

What is utopia? Well, in common parlance ‘a welfare state with socio-economic-political perfection, equality and well-being’. However this short hand definition of this word itself puts a doubt over its existence in the real world.

Utopia has often been staged in synonym with an egalitarian society. However this word ‘utopia’ has different meaning for different political strategists and legal scientists, as for example- for Plato it means republic, for Abraham Lincoln it means democracy, for Karl Marx and Linen it means a socialist society and for few others it means technological optimism.

An attempt has being made in this paper to study this term ‘utopia’ from an Indian point of view. If above Para is to be studied in strict sense of the term, we shall very well say that India is an Utopia – never the less because the preamble of Indian Constitution declares India as a secular, socialist, democratic-republic, more-so-over Part XIII of this fundamental ‘law of the land’ talks about ‘freedom of trade commerce and intercourse’, the new economic policy of 1991 opened the gates of so called development in India, by virtue of which privatisation, liberalisation and globalisation freely flowed into the Indian economy with an aim of granting India technological optimism.

In regards to the above rendered knowledge India should be a ‘utopia’.

However the Indian noble laureate, Dr. Amartaya Sen in his book, ‘The Argumentative Indian’, highlights the fact that- there is a difference between real utopia and pseudo utopia. So far as India is concerned- a sense of utopianism rests only on paper not in practicality with existence of such widespread poverty, un-employment, casteism, communalism, linguism and regionalism of all sorts. The book claims that India can grow potentially to become superpower by 2050, provided the growth India is achieving and is targeting is supported by communal harmony, socio-economic justice, fair political interplay and absence of corruption of all sorts, and then in some sense of the term India shall be in position to call itself a visionary nation. A nation that envisions itself to become a utopia one day. But the demands so put forth are more than challenging, practically impossible.

Dr. Amartaya Sen goes on record to statistically prove that India has many reasons to cheer, despite its saddening socio-economic realities. The reasons being, India is 7th largest nation in the world, 6th nation to equip itself with nuclear facilities and faculties, India being one of the only three nations to be able to produce super-computers indigenously (after Japan and the U.S.) , what less to say it’s the 2nd most fastest growing economy in the world after China.

Indian economy is an agrarian economy and despite massive urbanisation, spirit of India continues to live and foster in the rural India. Green Revolution and White Revolution till date are examples that have kept many economic strategist surprised and evolved.

Can India grow agriculturally and technologically at the same time? Is the question to be answered. With large scale farmer suicides throughout the country in wake of India stilling calling itself ‘a developing country’ seems callous on one hand, position as to technological & industrial development remains pity on the other hand with Chinese products flooding Indian markets like never before.

Terrorism and insurgency problems on one hand have cut short India’s dream of calling itself ‘a developed nation’ and on the other hand large scale corruption has paralysed India’s future.

On one hand, people in India are losing their faith in democracy with decrease in number of voter response in wake of elections and on the other hand statutes such as the AFSPA have attracted negative response from people, calling it un-constitutional and anti-national in some sense of the term.

India has been ranked as lowly as 119th in the latest HDI (Human Development Index) report for the year 2011 on one hand, and as per reports of WHO(World Health Organisation), 2011 about 9,00,000 Indians die each year by consuming water unsafe for drinking on the other hand.

Despite achieving almost 93% literacy in state of Kerala, about 62% people in India are still illiterate. Despite achieving 100% electrification in state of Haryana still about 300 million Indians have no access to electricity reports the Wall Street Journal (dated 2nd January, 2012).

Indian railways on one hand is considered as the world’s largest employer but at the same time more than 10% is the unemployment rate in India so far as present scenario is concerned.

There seems no point in endlessly quoting figures and facts as a dichotomy exists in every scenario so far as current situation in India is concerned.

Looking at the gloomy side, Justice Krishna Iyer, quotes in his book ‘Off the Bench’ the following quote:

‘With widespread poverty, un-employment, inequality of income and purchasing power of rupee falling, it seems to me unjust that Indian political leaders are so fascinated in investing so much money in arms, ammunitions and weaponry, although I agree that ‘strength respects strength’ and threats of terrorism are ever growing but situation becomes miserable when there are guided missiles in hands of misguided people.’

Utopia – A Constitutional Dream:

If the case, namely ‘Keshavanand Bharti v. State of Kerala’, is to be talked in nutshell, the synopsis of the case is that ‘the preamble of the Indian Constitution’ is the basic structure of the constitution of India, which under no circumstance can be amended.

Constitution of India is the most fundamental piece of legislation—it is the law of the land. All other statutes derive their existence from the constitution; no legislation can be in abrogation of or against the spirit of the constitution. This is so because in some sense of the term the constitution represents ‘the will’ of the people of India, that is, the sovereignty of India rests in the people of the country. India is sovereign, i.e. it is the supreme excellence, it is free from foreign dominion and people of India are the architects of their own destiny and that of the country. This same spirit is reflected in the opening words of the preamble i.e. ‘We the people of India’. To range it further closely, in India the government is of the people, for the people and by the people, India hence is a democratic republic i.e. people’s rule coupled with a well framed & written constitution.

However a low voter turnout on the election days makes India in some sense of the term a pseudo-democratic country. Rights lose their existence by virtue of their non-implementation. Vote bank politics can be regarded as one of the prime reason for low voter turnout.

Secondly, preamble of the Indian Constitution declares it to be a Socialist country. If words of Marx are to be believed ‘Democracy is the road to socialism’.

Socialism is a system in which property and wealth are shared equally, what is talked about here is community of interest and common ownership. But in practicality ‘I am a man and anything that concerns mankind, concerns me’ is fast fading away.

The virtue of socialism so far as constitution of India is concerned comes from the famous Russian revolution.

Thirdly, secularism, the preamble of the constitution declares India to be a secular nation and so far as fundamental rights enshrined in part III of the constitution are concerned, every citizen of India has a right to propagate and practise religion of his choice in a peaceful and comprehensive manner. Religious tolerism is the premise onto which a welfare state finds its foundation.

Incidents such as 1984 Sikh riots and 2002 Godhra riots prove India’s slackness in this very aspect. Martin Luther King used to say that, ‘a riot is nothing but the voice of the un-heard’, same shall not hold true in Indian context.

Fourthly, equality, equality has been talked about in the constitution in two forms:

1. Equality before law and equal protection of law.

2. Equality of opportunity and status.

Balanced regional development in India over the past has become a dream. The divide between the rich and the poor is becoming ever-growing. Corruption is rampant. Solution to this seems to be in progressive taxation policy, but nothing can be done against the evasion of taxes. Law when is flexed and is moulded against its very own purpose, tyranny prevails—this is what we have to say about Indian tax laws.

So far as equality before law and equal protection of law is concerned, right to speedy trail is just a dream but we still have hope and faith in Indian judicial system although it suffers from docket explosion. Bank of justice is never bankrupt this is what we can say in wake of judicial activism in India.

Fifthly, justice- social, economic and political. How can this be achieved? Through well framed laws. Two things need to be said in this regard:

1. Laws are the means and justice is the end. Well framed laws ensure justice is true sense; equal emphasis is to be placed on their applicability also.

2. Unjust laws are nothing but species of violence and arrest for their non-compliance more so—Mahatma Gandhi. You revolt against an unjust law or you propagate one; there is no other way.

Sixthly, liberty, article 19 of the constitution of India talks of basic freedom i.e. freedom of speech and expression, to form unions and associations, to practise profession of one’s own choice, to reside anywhere in India as per one’s own will, to move freely in public placesanywhere within the territory of India.

But certainly there are certain qualifications to this freedom, but point to be emphasised over here is the role of media. Media sensationalization under the garbof article 19 is unconstitutional. Media in India still has to regularise itself says Justice Markandey Katju, the present Press Council of India. As he points out that there is more to be achieved by media than mere TRPs, let there not be situations as observed by Roman emperors who said, ‘If you cannot serve your people with bread, serve them circuses’. There is no deny that it was media activism that made the ends meet in the Jessica Lal murder case for justice to prevail but equally there is no denial in the havoc media created during the Sarojani Nagar bomb blasts in 2005, where by various news channels verified different sets of news to woo the people, to showcase how quick they are in reporting to their viewers, some channels said, there was a single bomb blast, some said 2 and the others said 3. Also during the Mumbai Taj Hotel attack (26th Nov. 2008) the media was criticised in large length because the news clippings’ aired on national television was infact used by the terrorist to know how the police and military forces were trying to break into the hotel to give shape to successful rescue operation.Media activism has greater role to play not only to ensure that the citizens of the country remain well acquaint to all affairs throughout the country but also to corner down corruption and mal-practises in government department. We are not from the government but the government is from us; this message needs to be imprinted in minds of all citizens.

Seventhly, fraternity, preamble talks of this aspect in fine length and the same is enshrined in the spirit of the Indian Constitution in more than many ways. Fraternity means mutual brotherhood, all united together in name of the country, for the country. United we stand, divided we fall. Let national integration be no more a dream but a reality. May it may not be right to say with all the little experience and knowledge I have, but I strongly feel that ‘religion’ has done more harm to the country than good.

Finally, in best of brevity I conclude the constitutional dream of utopia. There is no reason to deny that if India achieves the sacred virtues of secularism, socialism, people sovereignty, democracy, and republic, equality of opportunity and status, social-economic-political justice, liberty of speech-thought-expression, fraternity and national integration, India shall be a utopia one day. Constitution of India reflects the great dreams, desires and aspirations of its freedom fighters and as the adage goes; great dreams of great dreamers are always transcended. Let’s not lose hope in light of following observations:

1. India is the second largest country in the world in terms of population with more than 1.2 billion people; this population explosion can be seen as availability of best of human resource. India in the world in not known so much so for its technology and natural resources availabity than for its skilled, semi-skilled and un-skilled labour availability. We must bank upon this opportunity rather than criticise the present situation. Argument in regards that we have more dependent population than working population appears to me a myth because statistics show that average age of population in India is 25.1 years.

2. Criminalisation of politics is something that needs to be checked; otherwise India is well equipped to take care of terrorism and insurgency problems as: India has 3rd largest standing army in the world, 4th largest navy and 5th largest air force.

3. May India be called the world diabetes capital or country with highest HIV/AIDS cases but we still are struggling to revolutionise the trend, as for example polio was one of the biggest health hazards India had been facing in the past but same is now on verge of its end, we are about to witness a polio free nation in a year or so, same had been the case with plague & small pox, hence we need to remain positive on this aspect. Less to forget,by volume of pills produced, the Indian pharmaceutical industry is world’s second largest after China.

4. Illiteracy is rampant in India, no doubt about it but efforts are been made to give far reaching results. Right to education as enshrined in Article 21-A of the Indian Constitution has been recognised as a fundamental right available to every citizen. Hence, with such awakening we can expect fruitful and long lasting results.

5. Unemployment is another issue for which India has been criticised off and on, but less to say MGNREGA is the most luminous project any country has ever taken in the world. Mahatma Gandhi National Rural Employment Guarantee Act, 2005 envisions a un-employment free nation, with an annual outlay to this project of about 18,000 Crore Rupees.

6. Poverty is a curse and in this sense of the term India is cursed. Poverty free nation as for now, for India is just a dream that may not meet reality but efforts are been made. Right to Food Bill is still pending in parliament, seeking its approval. Fingers crossed.

7. Corruption is the problem that has impaired the growth and development of India forever, but nothing can withstandthe will of people even if it is corruption; the story of Anna Hazare and the Right to Information Act,2005 is something that will be admired and cherished for years to come.

8. Female criminality and victimity has been rampant in India, right from days of sati pratha to pardha system to preference to a male child, Indian society has been male dominated, but no longer the scenario is the same, gender bias is on decline with effective implementation of provisions as to welfare legislation i.e. equal pay for equal work, the Dowry Prohibition Act, 1961 and enactment of sec.498-A and 304-B of IPC and sec.113-B of the Evidence Act.

9. Strong and effective laws ensure progressive society, when the laws so enacted are followed or are backed by the will of the people, subjecting people to equity and morality in purest form. But problem Indian courts today are facing is docket explosion, but same has not refrained rule of law to prevail in India, what I am at present talking about is the concept of ‘mobile courts’, first of its kind, it refers not to any telecom revolution but to the concept of courts on vehicles. If victims hesitate to approach the court, then court shall approach them to curb any exploitation they tend to face. This system of court proceeding had been launched in Mewat district of Haryana and it is proving to be successful.

10. Technologically India is advancing each passing day, few facts in this regard as mentioned in the yearly issue of the Economic Times,2012 are as follows:

a. India is the only country to have been able to produce super-computers indigenously after Japan and the U.S. India is world’s biggest emerging mobile and auto-mobile market.

b. Maruti Alto has been the most looked after and the most sold car for the year 2011 on a worldwide basis.

c. Tata Nano is regarded as world’s cheapest car in production.

With the following points I feel positive that India is developing at its own pace and is not merely growing at draconian speed giving no consideration to socio-political norms, growing for the sake of growing is the characteristic of a cancerous cell, we in India are aiming towards sustainable economic development, even if not in practicality then let alone be it on pen & paper but at least things have started moving, started changing, in positive direction, with positive pace and with positive attitude & outlook.

 

‘’When sky turns dusky,

And earth turns dry,

Men eat men,

In hue and cry.

 

When sword turns rusty,

And limbs go lame,

Either you surrender,

Or die in shame.

 

Where faith jitters,

And honesty kills,

Fear takes over,

To the kingdom of evil.

 

Honest shall rise,

For evil to end.

Hero are born,

To ignite the heaven.’’

Even if horrors of past are deep rooted and present seems jerky we cannot afford to lose as we are answerable to all are freedom fighters how bought us freedom by pledging their lives.

Do or die is a thing of past, to do before we die is something we have to focus on.

Let the revolution begin, utopia is not a far off dream.

*Disclaimer: All thoughts and opinions expressed are reflection of author’s view on the particular subject that is subject to review in light of apt arguments. Efforts have been made to zero down all personal biasness. All criticism in all forms is most welcome. Author cherishes your prestigious reading.