ELECTORAL
RIGHTS: APEX BLUNDERS
No hesitation we have to say that our Supreme Court has
seriously blundered in two recent decisions – 1. a judgment against the statutory right of
elected representatives to continue in post till their appeals against
convictions have been disposed of and 2. an order against not only statutory
but also basic rights of prisoners,
convicts or under-trials – as regards their electoral rights, thus upsetting
the longstanding right enjoyed by prisoners to contest elections from prisons
and thus actively participate in the democratic political process. The former, praised
by several persons including civil rights activists, on the mistaken belief that
the Apex Court has acted as a democratic cleanser in denying undue privileges
accorded to undeserving MLAs/MPs by Parliament, may be rejected on the simple
ground that when a constitution bench of the Court had earlier given detailed
reasons to support, if not technically rule on the validity of, the provision
and explained the need for such a right, it was not proper for the learned two
judges to interfere in the matter, and they should have, in all humility, left
it to another constitution bench for final decision. But the second order, very
cryptic, is more lamentable, devoid of any proper discussion and extends the
bar of electoral rights to even under-trials who are to be presumed innocent
till proven guilty. The Court failed to note that great national leaders were
elected from prisons when they were convicts/under-trials; in fact the strategy
of the Irish Sinn Féin movement was to ‘vote them in, to get them out’; Netaji was elected to Calcutta
Mayoralty in 1930 when he was a convict prisoner; and many such elections of
jailed leaders post-independence. Also convicts are granted electoral rights in
many developed democracies – “In Canada and South Africa,
the courts have struck down legislation disenfranchising prisoners and thus
there are no current restrictions on a prisoner’s right to vote ... In Europe …
18 countries allow prisoners to vote without restriction …” The ECtHR decision published in this issue clarifies that even convict prisoners
should have voting rights, which of course could be limited by law but only in
a manner proportionate and fair. As such we very much regret this unwise
decision pronounced without a detailed study and discussion of various aspects
of law and fact and history, and we hope both these constrictive and harmful-to-democracy
decisions would be forthwith stayed and then overruled by a constitution bench
on review or the Government of India itself proceed to make necessary statutory/constitutional
changes to assert the electoral rights of prisoners and of legislators as
regards their appealed convictions §§§
