Barred: An inmate looks out of his cell at Dumdum Central Jail, Calcutta

It’s not so much being in jail but the humiliation of being treated as what he calls a “non-person” that Utthan Paul finds hard to digest. The 42-year-old former member of the Socialist Unity Centre of India (SUCI) was convicted of killing a political rival 12 years ago and has since been serving a life sentence in Calcutta’s Alipore Central Jail. Of all the other restrictions in jail, not being allowed to exercise his franchise hurts him most. “For me, these prison bars are not as limiting as is the fact that the imprisonment has snatched away my right to exercise my vote,” he says sadly.

“I am a politically inclined person and I don’t think being in jail should prevent me from participating in the process of choosing my political leaders,” says Paul.

Unfortunately for Paul, Indian law thinks otherwise. The Representation of Peoples Act (RPA), 1950 and 1951, categorically prohibits prisoners from casting their vote. Section 62 (5) of the RPA states, “No person shall vote at any election if he is confined in a prison, whether under a sentence of imprisonment…or in the lawful custody of the police.”

But this may change soon. On June 27, 2007, B.D. Sharma, the Inspector General of Correctional Services (Prisons), West Bengal, sent a proposal to the Election Commission, requesting the institution of voting rights for prisoners. Explaining his stand, Sharma says, “The right to vote is every Indian’s constitutional right and taking that away from prison inmates robs them of their sense of belonging to society.” Besides, Sharma points out, since the objective of incarceration today is “correction” with the ultimate aim of reintegration into society, denying prisoners their fundamental sense of identity as Indians and thereby making them feel like social outcasts goes against the formal and legal objective of incarceration.

He also points out that approximately 75 per cent of those who are lodged in the 52 jails throughout West Bengal at any given point are undertrial prisoners (UTPs) who are legally “innocent until proven guilty”. “Why should they not be allowed to cast their vote,” he asks.

Another startling paradox here is that though prisoners are not allowed to vote, the law does not bar them from either standing in elections or holding parliamentary or assembly seats. Whether it is George Fernandes or Laloo Prasad Yadav or Shibu Soren, all contested the elections or held parliamentary or assembly posts while in jail.

But perhaps the most significant argument in favour of instituting voting rights for prisoners is a legal clause — Section 79 (3) — in the West Bengal Correctional Services Act, 1992, which actually mentions the voting rights of prisoners. It states, “Every prisoner shall, subject to the provisions of any law for the time being in force, have the right to vote in the elections to the state legislature or Parliament or any local authority.”

Pointing out the contradictory nature of the two laws in his letter addressed to Debashis Sen, chief electoral officer, West Bengal, Sharma writes, “Under the circumstances, you are requested to kindly take steps to allow the prisoners…to exercise their franchise.”

Sen, however, maintains that voting rights can only be granted to prisoners if there is an amendment to the RPA of 1950 and 1951. And unless Parliament takes steps to push through such an amendment, neither the state nor the Election Commission can do anything in the matter. Even so, Sen has prepared a report based on the proposal. “We have submitted this report to the central Election Commission and it is now up to it to take action.”

So far, the response to the proposal has been mixed. Though West Bengal judicial secretary S.K. Chakraborty declines to comment, CPM MP Sujan Chakraborty says, “Personally I will support such a move. I don’t think prisoners should be denied their constitutional right to vote. After all, India boasts of being a democracy. Also, a big chunk of the prison population falls under the category of UTPs.” However, he clarified that he was not too sure if such a right ought to be extended to convicted prisoners.

The legal fraternity is also divided on the issue. Some feel it would be a welcome move but others have serious reservations. Speaking on condition of anonymity, a Calcutta High Court judge says that such a step could lead to further criminalisation of politics. “I shudder to think what kind of lawlessness will enter prisons if political parties begin to see prisons as a vote bank. There is no guarantee that corrupt candidates will not use their power and influence to try and buy votes from inmates. I fear that the day might come when prisoners will be able to buy their freedom with a vote.”

But those who work with prisoners feel that there are advantages to political parties being interested in jails and their inmates. Says Subhash Raj Bangshi, a lower division clerk at Alipore Jail, “If political parties become interested in prisons, we may see drastic infrastructural improvements. They may pump in funds in the hope of getting votes.”

Adds Father Scaria of Don Bosco prison ministry, a welfare scheme of the Don Bosco missionary organisation, who has been working closely with prisoners for the past 12 years, “Our mission is to restore dignity, honour and freedom to the prisoners and restoring their voting rights is a step in the right direction.”

Inspector general Sharma is optimistic that if instituted, the system will be a success. “I have studied existing models of other countries such as Australia and parts of the US where prisoners exercise voting rights. I am convinced that this will give prisoners, most of whom are not hardened criminals, a sense of dignity.”

Meanwhile, Utthan Paul lives in hope.