This article originally appeared on VICE India
While growing up in Hardoi, near Lucknow in northern India’s Uttar Pradesh, Prerna Singh (20), remembers one constant aspect. “Ladkiyo ko itna zyaada baahar nahi bheja jaata hai (Girls are not sent outside a lot),” her meek voice echoes over the phone from Greater Noida, Uttar Pradesh, where she is currently a fourth year law student in Galgotias University. But despite that, Singh’s father encouraged her to sign up for a class in Constitutional Law, four years ago. “Kuch karo (do something),” he told her when she was leaving home for college.
“I don’t know what exactly it is that stops most women like me to speak out and actively pursue human rights causes,” she says. “Maybe it’s the running around, showing up in the courts, or the fear of doing it all by themselves.” Being a woman from a small town in India comes with a certain knowledge of vulnerability and social disenfranchisement, no matter what group you belong to. But Singh found herself channelling that sense of struggle, in the middle of shuttling from classes to courts, for what is turning out to be one of the strongest Public Interest Litigations (PILs), currently doing the rounds of the Delhi High Court.
Along with her classmates and friends Praveen Chaudhary (21) and Atul Kumar Dubey (22), Singh is one of the three main litigators to have challenged the constitutionality of Section 62 (5) of Representation of People Act: a blanket ban on anyone “confined in a prison...or in the lawful custody of the police” to vote at any election. The petition, filed under Article 226 of the Constitution of India (which allows any persons to file orders or writs for enforcement of any rights) is addressed to the ministries of Law and Justice, and Home Affairs, along with Director General (Prisons) of Tihar Central Jail and the Election Commision of India (ECI).
In short, their petition wants India to know "that any denial of prisoners voting right is inequity and inequality or discrimination invites the wrath of the Constitution. Such a thought is abominable, for it slaughters their core identity of their nationhood."
The PIL comes just in time for the upcoming and reportedly the most expensive election in the world, where around 900 million registered voters will exercise their right over the next few weeks in India. The prisoners—4,00,000 of them currently in Indian jails—are not part of this. On March 8, urged by the petition, the Delhi High Court summoned response from the Centre, ECI and prison authorities on the decision to grant and facilitate voting rights to the people lodged in jails across the country.
With minimal resources to back their petition, the trio dips into their pocket money to fund their fight. “We don't have money to waste, or to appoint an advocate,” says Chaudhary. “Our course is also very expensive.” But while resources are limited, what’s boundless is their conviction that the blanket ban on voting rights of prisoners violates the basic principle of equality and freedom of expression. This ostracisation, they tell me, is especially crucial when it comes to mainstream political decision-making of the world’s largest democracy.
“We are concerned with human rights,” says Chaudhury. “Whoever it is, no matter how big the crime is, they should have human rights. We kept this in mind and the fact that they are, after all, humans. If a person is a citizen, and you're retaining their citizenship, if you want them to fulfill the country's fundamental duties and stay loyal, then they should be given certain facilities so that they know what it is to be a country's citizens.”
Chaudhary, a farmer’s son from Ballia in Uttar Pradesh, says their quest began after a class on election law taught them about the Representation of People Act. He says, “From 1919 to 1935, the word ‘convicted’ was broadened to include person undergoing a sentence or transportation penal servitude, or imprisonment. The Government of India Act 1919 and 1935 set out the precedent for Section 62(5) of the Representation of the People Act 1951, but the precedents should not be allowed to retain its status or allowed to dilute the vote of every citizen in democratic, socialist and republic India.”
What is important to understand alongside this fight is the fact that under existing laws, those with criminal records can contest for elections, and even head political parties in India. “In fact, a person with less than two years of conviction can fight for elections from within jail. If you can do that, we say you can vote too,” says Chaudhary. Indian politics’ highest points have seen the late statesman George Fernandes and the notorious Member of Parliament, Mohammad Shahabuddin fighting elections from within the prison in their time. In fact, in 2017, a plea at the Supreme Court of India had to warn the grave outcome of this law, which could even allow someone like the convicted and controversial godman-cum-political leader-cum-rapist-cum-murderer Guru Ram Rahim to sway political outcomes.
This is not the first time such a step has been taken. In 2016, the Election Commission had reportedly set up a seven-member committee to explore the possibility of lifting the ban on voting for prisoners. “But we don’t know what happened to that committee; the names of the members or the report was never disclosed. We filed an RTI on March 14 but we haven’t heard back yet,” says Chaudhary.
The three also referred to international laws that give voting provisions to their prisoners—Australia, Canada, New Zealand, Ireland and South Africa. It took them more than a month to draft the petition, which was finally filed on February 21. March 8, then, was the first hearing, after which the Delhi High Court has asked for the respondents to reply within three weeks. The next hearing is now scheduled for May 9, by which time the three hope for the respondents to come back with a decision.
Why prisoners, though, I ask. India reportedly has one of the world’s smallest prisoner populations: approx 33 out of every 1,00,000 behind bars, according to the Institute for Criminal Policy Research. A recent study furthermore states that 67.2 percent of them are undertrials. Add to that the fact that the prison conditions are far from satisfactory, and that the country’s 1,412 jails are crowded to 114% of their capacity. When so much remains to be done, why did the trio decide to focus on voting rights?
The system is broken, admits Chaudhary. “But if the day comes when prisoners have the right to vote, those seeking votes will come to this jail with the idea that they want to reform it.” The students are demanding EVM machines to be placed with the premises of the jails, so as to save on transportation costs involved in ferrying prisoners to their constituencies. “In many foreign countries, these facilities exist,” says Chaudhary. “This way, there will be a reform of the prison system. The prisoners will realise that they too are citizens whose opinions matter, and that they too can decide their own political leader.”
According to the Model Prison Manual for the Superintendence and Management of Prisons in India, Indian prisoners have certain rights, for instance, to work from within the jail, or study. “Just because it's the prison doesn't mean that that is the end to your life,” says Dubey. “When prisoners will get voting rights, our legislature will pay attention to the prisons. They will know that prisoners are a separate community that has its own issues, rights, and needs.”
The petitioners also credit the current justice system and their members, for guiding them. Dubey, who hails from Chittaranjan, West Bengal (a city known for being Ministry of Railways’ manufacturing township, where the entire country's electric locomotives are made) raves about the speeches and judgments of Justice DY Chandrachud, who, among other crucial judgments, was a part of the historic five-judge bench that struck down Section 377 of the Indian Penal Code and decriminalised gay sex. “He has strongly affected my interest in human rights activism,” says Dubey. “From where I come, there aren’t many opportunities to practice this. At home, though, there's a lot of inspiration. My father always tells me, ‘Jab apni aawaz uthaoge, tab hi doosro ki aawaz ban paoge (When you raise your voice, you will become the voice for the rest)’.”
The three have no personal investment in the cause (“If we did, we couldn’t even file a petition,” reminds Singh), and say they have no political or communal aim. “It’s pure public interest. Today, it’s prisoners; tomorrow, it could be others,” says Dubey. “We also realised that this is something that cannot be achieved through aandolan (protests). This can be done only through the court,” says Chaudhary. “We're law students after all.”
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