CIVIL DEATH PRISONER: DIVESTING THE PRISONER IN REALISM BEGETS HIS CIVIL DEATH
THIS ARTICLE WAS WRITTEN BY ANAHITA GAIND A STUDENT OF ARMY INSTITUTE OF LAW, MOHALI
I. PROLOUGE
Enfranchisement is a secular right to either vote or utilize that right. The legitimacy of democratic government is regularly considered to be acquired primarily from suffrage. One of the sorts of suffrage is ‘Universal Suffrage.’ It is labeled as a situation where the right to vote is not restricted on the basis of race, sex, belief or status.[1]
In the early period, inmates who were convicted were rebuffed civil rights. The basis of justification was that a person who has committed an offence divests himself of property and legal rights.[2] The prisoner who was not granted death penalty but nevertheless he would suffer ‘civil death’ The central idea behind this was to:
Emulate the result that natural death would produce, e.g. Succession would be opened. The civil death would not transmit upon intestacy or by will or receive gifts. All family and political rights were forfeited.[3]
Ousting of prisoner’s right to vote is a very contentious issue both internationally and as well as nationally. This paper discovers the history of the Indian provisions and surveys their effects. Arguments presented on both sides of the debate in India will be examined, before looking at similar debates, and their intentions as per the constitutional provisions and by way of decisions in other countries such as Australia, Canada, United States and U.K. Later on, the Constitution of India shall be scrutinized to find whether it bears the protection to the right to vote and whether such protection extends to prisoner’s right to vote.
- PRISONERS DISVESTMENT IN INDIA
In contrast to many countries, India has deprived sentenced prisoners. India being a common law country, the Commonwealth Franchise Act, 1902 was asked for prohibiting the convicted persons who were engaged in sentence from voting. The provisions remained substantially the same when the Commonwealth Electoral Act, 1918 was enacted. The position stayed unchanged until the Representation of People Act, 1950 and the Representation of Peoples Act, 1951 were enacted.
III.THE DOCTRINE OF UNIVERSAL SUFFRAGE
One of the necessities for a free and fair election is universal suffrage– i.e., the practice that all adults have an equal chance to vote. However, this doctrine has never been elucidated to mean that everyone in the community must have the right to vote. No populist nation has ever let minor children to vote, and no democratic theorist has ever called their barring undemocratic. Most elected nations also exclude aliens,[4] people constricted to mental institutions, and culprits in prison; and few people consider this to contravene the principles of universal suffrage[5]. To further explanation on the same, the eligibility requirements for voting under contemporary laws have been discussed in the subsequent sections.
- ELIGIBILITY FOR VOTING
A.CITIZENSHIP
Most elected nations let only citizens to vote but do not make any additional distinction between native-born and naturalized citizens[6]. India follows single citizenship[7]. Articles 5 to 11 of the Constitution of India lay down provisions as to who are the citizens of India at the commencement of the Constitution, as also various classifications such as ‘by domicile’, ‘by migration’ and ‘by registration’.
- DURATION
In accordance with Article 326 of the Constitution of India, the right to vote is a constitutional right. A person who has reached the age of eighteen years is eligible to vote. A person may however be disqualified to vote by a statute. In P. Nalla Thampy v B.L.[8], the Supreme Court observed:
Outside of statute, there is no right to elect, no right to be elected. Statutory creations they are, and, therefore, subject to statutory limitations.
- OCCUPANCY
Most democratic systems also require voters to live in the country and in their particular voting districts for certain periods of time before they can vote.
- REGISTRATION
Only a citizen of India can be enrolled as a voter. When the name of a person is to be entered into the electoral roll, he may be required to satisfy the Electoral Registration authority that he is a citizen of India. But if the name of the person has already been entered in the electoral roll, his name cannot be removed from the roll on the ground that he is not a citizen of India unless the concerned officer has given him a reasonable opportunity of being heard according to the principles of the natural justice.[9]
No person is allowed to be registered in the electoral roll for more than once. Further, any person declared of any specified offences unlawful with imprisonment, or who, upon the trial of an election petition, is found guilty of any corrupt practice, shall be disqualified for voting at any election for 6 years. This disqualification can be detached by the election commissioner for reasons to be recorded by in writing. Subject to these conditions every one who is above the age of 18 years is eligible to be registered on the electoral roll for any constituency.[10]
V.COMPARATIVE PROVISIONS IN OTHER COUNTRIES
- UNITED KINGDOM
The European Court of Human Rights in Hirst vs. United Kingdom (No. 2)[11] articulated in March 2004, has radically made changes to the position in the United Kingdom. That case concerned the interpretation of Article 3 of the First Protocol to the European Convention on Human Rights.[12] As per U.K. law, a prisoner-undergoing sentence is legally incapable of voting at any parliamentary or local government elections[13] The validity of that provision was challenged in Hirst vs. Attorney General[14]. The domestic English Court first perceived the content; Lord Justice Kennedy noticed that the effect of Article 3 of the Convention was that, if a prisoner was to be disenfranchised, it must be, “in the pursuit of a legitimate aim[15]”. When the matter went before the European Court of Human Right, the court, consisting of seven judges, consented that the right to vote was subject to exceptions that were foisted in pursuit of a legitimate aim, but held that the English disenfranchisement provision violated Article 3 of the European Convention.
The Lord Chancellor had said: The ruling of the human rights court against U.K. laws banning prisoners from elections does not mean that all inmates will get the right to vote, The European Court of Human Rights in Strasbourg that banning ex-inmate John Hirst from the polls had breached his rights to free elections.
The basic human right to vote should not be repudiated to any prisoner no mater how heinous a crime he has committed. Mr. Hirst had first challenged the vote ban in the High Court, which dismissed his plea on the ground that the Representation of Peoples Act, 1983 was mismatched with the Human Rights Convention. Although, the Strasbourg court, by a majority vote of 12 to 5, ruled in his favour. The Court stated that that his right had been infringed under the Convention on Human Rights, to which Britain is a signatory, and which guarantees the “right to free elections”.
In accordance with the judges of U.K., this applies equally to prisoners, describing the voting ban as a “blunt instrument” which affected a significant category of people in a discriminatory way[16].
According to the Director Juliet Lyon of Prison Reform Trust (PRT)
Prisoner should be given every opportunity to pay back for what they have done, take responsibility for their lives and make plans for effective resettlement and this should include maintaining their rights to vote.[17]
Considering the second object the Human Rights Court followed the reasoning of the Canadian Supreme Court in Sauve vs. Canada (Chief Electoral Officer)[18]
With respect to the first objective of promoting civil responsibility and respect for the law, denying penitentiary inmates the right to vote is more likely to send messages that undermine respect for the law and democracy than enhance those values. The legitimacy of the law and the obligation to obey the law flows directly from the right of every citizen to vote. To deny prisoners the right to vote is to lose an important means of teaching them democratic values and social responsibility.
- UNITED STATES
In the United States, inmates do not have the right to vote. The leading case, Richardson vs. Ramirez[19] was resolved in 1974. The Supreme Court’s decision maintained a provision under the laws of California which deprived ‘persons convicted of an “infamous crime”. It is worth recording that this provision not only applies to the inmates undergoing sentence but also those who have already completed their sentence and have been released. The decision was based on the Fourteenth Amendment to the United States Constitution Article 2[20], which examined those prisoners who committed an offence of ‘rebellion or other crimes ’ might be banned from voting. The majority regarded the question as one for the legislature, and observed:
Pressed upon us by the respondents, and by amicus curiae, are contentions that these notions are outmoded, and that the more modern view is that it is essential to the process of rehabilitating the ex-felon that he is returned to his role in society as a fully participating citizen when he has completed the serving of his term. We would by no means discount these arguments if addressed to the legislative forum, which may properly weigh and balance them against those advanced in support of California’s present constitutional provisions. But it is not for us to choose one set of values over the other. If respondents are correct, and the view, which they advocate, is indeed the more enlightened and sensible one, presumably the people of the State of California will ultimately come around to that view. And if they do not do so, their failure is some evidence, at least, of the fact that there are two sides to the argument[21].
A rational limit is justified in a free, elected and a democratic society. The question before the court was to decide was whether disenfranchisement of prisoners could be considered a cogent restriction. The argument put by the state was that the legislature was obliged, “to keep balance with the competing claims of inmates to vote with the claims of the society at large to preserve the sanctity of the franchise and to sanction offenders for violating the social contract.”[22] The next point contended by the state was for the need to preserve the sanctity of the franchise based on “the requirement for a liberal democracy to have a ‘decent and responsible citizenry’, which will voluntarily abide by the laws or at any rate most of them.” The Courts of Appeal declined all of the Crown’s stated objectives, stating:
If the purpose is to ensure a decent and responsible citizenry, the legislation is both too broad and too narrow. It is too broad in that the legislation catches not only the crapulous murderer but also the fine defaulter who is in prison for no better reason than his inability to pay…..With regard to the alleged objective of punishment, the legislation bears no discernable relationship to the quality or nature of the conduct being punished. Indeed, on a reading of the text of s. 51 (e) it is difficult not to conclude that, if it is imposing punishment, such punishment is for imprisonment rather than for the commission of an offence.[23]
C.CANADA
Since 1982, the Canadian Charter of Rights and Freedoms comprises an express right to vote. A citizen of Canada has the right to vote in an election and to be qualified for membership in their legislative houses,[24] subject to equitable limits prescribed by the law. In Belczowski vs. The Queen[25], this right to vote and the reasonable limits to which it is subject was in question. Section 51 (e) of the Canada Elections Act, which did not allow the right to vote, was challenged. Every person undergoing punishment as an inmate in any penal institution for the commission of any offence was held invalid under Section 3 of the Charter. The relief sought was granted at the first instance.
A new disqualification was introduced by the legislature of Canada in response to the Belozowski position by setting up criteria, which debars a person who is imprisoned for a period of two or more years[26]. This provision was experimented in the 1995 case. The Crown was fortunate in appeal to the Federal Court of Appeals, but in the end the provision was held void by a ratio of five to four in the Supreme Court of Canada. The minority view was that the case reclined upon, “philosophical, political and social considerations which are not capable of scientific proof”. The minority thus came to an end that the court should endorse the provision as constitutional because the social and political philosophy advanced by Parliament rationally justified a limitation of the right to vote. The majority view given by Chief Justice was thus:
In 2002 the Supreme Court of Canada ruled out that the section of the Canada Election Act that prevented inmates serving sentence of more than two years from voting in federal elections was against the Canadian Charter of Rights and Freedoms. All incarcerated electors may now vote in Federal elections and referendums[27] Presently, all prisoners in Canada are entitled to vote, and the Canada Elections Act contains various provisions to facilitate the prisoners’ franchise. Near about 35,000 inmates in Canada became eligible to vote in 2006.
- AUSTRALIA
The Australian Constitution does not assure universal suffrage. Australia has no limitation on prisoners’ voting. The Constitution does expressly provide assurance to the extent that those persons, who have or have acquired a right to vote in state elections, shall not be averted from voting in federal elections.[28] This provision could have had the consequence of forcing the Commonwealth Parliament to authorize qualifications for electors that were steady with most liberal of the equivalent state provisions. On one interpretation of S. 41 of the Constitution, the federal disenfranchisement provision, because it purports to prevent South Australian prisoners from voting at federal elections, would be void. This is not; still, the effect of the section as it has been interpreted by the High Court. Rather, the provision has been rendered obsolete by a High Court decision to the effect that it applies only to those who had a right to vote in state elections at the time of federation[29]. Because the decision has since been reaffirmed,[30] it seems improbable that the High Court would revise its view. If the Constitution is to have a endurance on prisoner disenfranchisement, it will be because it contains some relevant implied right or implied restriction on the legislative power of the Commonwealth.
The text and structure of the Australian Constitution include provisions for a system of representative government. Indeed, according to Justice Isaacs:
‘the Constitution is for the advancement of representative government, and contains no word to alter the fundamental features of that institution’[31]
This requirement for representative government is brought about, in no small part, by the fact that Section 7 of the Australian Constitution[32], coping with the composition of the Senate, and section 24 of the Australian Constitution[33], providing for the composition of the House of Representatives, both require that the members of those houses are to be ‘directly chosen by the people’. It is established that those provisions entrench in the Constitution a system of representative government[34]. In Australian Capital Television Pvt. Ltd v. The Commonwealth,[35] it was recognized by the High Court that representative government needs freedom of communication on matters relevant to public affairs and political discussion, and as a consequence that such freedom was implied in the Constitution. From one angle, the act of voting might be seen as the ideal mode of political communication, and thus it is arguable that a right to vote falls within the Constitutional implication discussed in ACT v. The Commonwealth.[36] Consistent with the implication of a right to vote are the comments of Chief Justice Mason: ‘The very concept of representative government and representative democracy signifies government by the people through their representatives’. According to Justices Deane and Toohey, ‘the powers of government belong to, and are derived from, the governed, that is to say, the people of the Commonwealth’. A Judge of the High Court, Justice Kirby, writes: ‘it seems to me distinctly arguable that, in Australia, there may be a basic right to vote implied in the text of the Constitution itself’[37].
The Constitution clearly provides for the Commonwealth Parliament to legislate with respect to the qualification of electors.[38] Adding up, the term ‘chosen by the people’ implies two qualifications: that electors would possess, initially, the ability to make a meaningful choice, and then, that they qualify as ‘people’ of the Commonwealth or, in the case of the Senate, of the relevant State. It might also be wrangled up that the term ‘chosen by the people’ must be satisfied by less than universal suffrage because many people were denied from the franchise, including, in many states, women, and aborigines when the federation came into being. If that contention were to be accepted, then the Parliament’s power to deny voters would be very wide indeed. There are grounds, nevertheless, to suppose that the High Court might, in interpreting the phrase ‘chosen by the people’ accord it a more contemporary contextual setting:
The words ‘chosen by the people of the Commonwealth’ fail to be applied to different circumstances at different times and at any particular time the facts and circumstances may show that some or all members are not, or would not in the event of an election, be chosen by the people within the meaning of these words in s. 24. At some point choice by electors could cease to be able to be described as a choice by the people of the Commonwealth. It is a question of degree. It cannot be determined in the abstract. It depends in part upon the common understanding of the time on those who must be eligible to vote before a member can be described as chosen by the people of the Commonwealth. For instance, the long established universal adult suffrage may now be recognized as a fact and as a result it is doubtful whether, subject to the particular provision in s. 30, anything less than this could now be described as a choice by the people.[39]
Similar sentiments were expressed by a majority in McGinty[40] by Justice McHugh. In Langer v. The Commonwealth,[41] Justice Gaudron expressed the view that:
Notwithstanding the limited nature of the franchise in 1901, present circumstances would not, in my view, permit senators and members of the House of Representatives to be described as ‘chosen by the people’ within the meaning of those words in Sec. 7 and 24 of the Constitution if the franchise were to be denied to women or to members of a racial minority or to be made subject to a property or educational qualification.
If the Court adopted this approach, in deciding what constituted a choice by the people in contemporary terms, it might have considered to overseas domestic provisions, and also to relevant international laws and principles.
- INDIAN POSITION
The Preamble of the Constitution proclaims India to be a Democratic Republic. Democracy is the primary feature of the Constitution and it can be sustained only through free and fair elections. Only free and fair elections to the various legislative bodies in the country can guarantee the growth of a democratic polity. It is the cherished privilege of the citizen to participate in the election process, which makes a person feel in a seat of power[42]. Every citizen who has reached the age of 18 years has a right to vote without any discrimination.
The Indian courts often refer to international instruments on human rights while interpreting the meaning and scope of statutory provisions. The modern effort towards what Winston Churchill called “enthronement” of rights of men began with the founding of the United Nations.[43] Indian courts have acceded to the International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights[44] (but not the optional protocol) on 27th March 1979, subject to certain declaration that set out as to how it would apply certain provisions of the Covenants.
A person who is in detention centre for his own conduct and is, deprived of his liberty during the period of his imprisonment cannot claim equal freedom of movement, speech and expression[45]. Restrictions on voting of persons in prison result automatically from his confinement as a logical consequence of imprisonment. The object is to keep the person with criminal background away from the election scene and therefore, a provision imposing restriction on a prisoner to vote cannot be called unreasonable[46].
Preventive detention differs from imprisonment on conviction, or during the investigation of the crime, and the same permits for the separate classification of the detentue under preventive detention.[47] In Anukul Chandra Pradhan vs Union of India, [48] the Supreme Court confirmed the soundness of the provisions of section 62(5) of the Representation of Peoples Act, 1951[49] on two grounds; initally that Article 14 does not affect it, and then the Court observed:
The right to vote is subject to the limitations imposed by the statute, which can be exercised only in the manner provided, by the statute prescribing the nature of the rights to elect cannot be made with reference to fundamental rights in the Constitution. The very basis of challenge to the validity of sub sec (5) of sec 65 of the Act is therefore, not available and this petition must fail.[50]
Section 62 (5) of The Representation of Peoples Act, 1957, excludes a person to vote in an election if he is incarcerated. Proviso to Sub-section (5) notch out an exception for a person subject to preventive detention under the law for the time being in force. The Court in this case held that the classification made is not infringement of Article 14. It also does not violate Article 21 on the alleged ground that the restriction on prisoner’s right to vote denies dignity of life. Therefore, classification made for persons in preventive detention is rational.
Article 19 (1) (d) of the Constitution of India[51] guarantees to every citizen of India the right to move freely throughout the territory of India and Article 19 (1) (e)[52] guarantees to the citizen of India the right to reside and settle in any part of India. These rights are interrelated. These rights are, however, not absolute and they are subject to Article 19 (5)[53] of the Constitution which provides that the state may impose reasonable restrictions on these rights by law in the interest of the general public or for the protection of the interest of any scheduled tribe.
When an criminal is sentenced to detention he loses his right to movement and residence as a result of such confinement in prison.. In Sunil Batra vs. Delhi Administration,[54]it was held that the restriction imposed on a prisoner under Sec. 30 (2) of the Prisons Act, 1894[55] was not unreasonable as the restriction is imposed keeping in view the safety and security of the prisoners and the prison, and the same could not be treated as being infringement of Article 19 (1) (d) of the Constitution.
It is manifested from the discussion, that Supreme Court has omitted to give due regard to the provisions of Articles 325 and 326. Article 325, does not exclude membership on the ground of religion, race, caste or sex. Article 326 is related to elections to the House of the people and State legislative assemblies to be on the adult suffrage. The right to vote is neither a common law right nor a fundamental right, and it is also not purely a statutory right either. It is more substantive as the Right to vote is not a gift of the legislature but flows from the Constitution. Free and fair election has been declared primary feature of the Constitution.[56]
VII. IS PRISONER DISENFRANCHISEMENT A ‘REASONABLE RESTRICTION’ TO UNIVERSAL SUFFRAGE?
Indian laws that are erratic with rights implied by the text of the Constitution can be justifiable if they satisfy two conditions. First and foremost, that the object of the law is compatible with the maintenance of the constitutionally prescribed system of representative government. Secondly, that the law is reasonably appropriate and adapted to achieving that legitimate object.[57] This essential is, in effect, similar to the test for reasonable exceptions to the Canadian right to vote, and to the ‘legitimate aims’ exception to the right in the United Kingdom and Europe.
It is not an easy task to set up the purpose or object of laws for the disenfranchisement of prisoners. In the Canadian case of Sauve v. Canada[58], the majority held that disenfranchisement attaching to prisoners serving two years or more was not reasonably connected to the object of punishment. That finding certainly seems true of the proposed Indian provision: to remove the right to vote from all those serving a sentence. When taking into consideration, punishment as an object, recall also the requirement in Article 10(3) of The ICCPR: ‘The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation.’ This is more consistent with placing rehabilitation above hindrance, and accordingly with an inclusive approach to prisoners in the context of political participation.
As for the declaration that prisoner disenfranchisement can ‘enhance civil responsibility and respect for the rule of law’,[59] the argument was turned down in Canada and Europe in Sauve and in Hirst respectively, the respective Courts recording that the provisions undermine respect for the rule of law by diverting from the legitimacy of the legislature from which they emanate. At least it can be said, where prisoners have the franchise, that a political process in which they continue to play a part sanctions their fate. That is a situation more likely to inspire respect than one that separates the prisoner from political society. Again the provision fails to demonstrate a sufficient connection to the object.
VII. CONCLUSION
The essentials of the Indian Constitution for representative government are open to be elucidated so as to protect the right of Indians to vote in elections. The suggested provision to remove the right to vote from all prisoners serving a full -time sentence of imprisonment arguably quarrels with the Constitutional requirement, and would duly, be liable to be held void if challenged in the Court.
There are a various ways in which enfranchisement of prisoners could be attained in practice. Polling stations could be set up in the prisons or special votes could be provided to prisoners. Inmates are literally a captive population, living in a disciplined and closely monitored environment, regularly being counted and recounted. The Election Commission should have little difficulty in certifying that those who are eligible to vote are filed and given the opportunity or chance to vote, and achieving the objective of an easily managed poll on the respective Election Day.
[1] Prisoners / Suffrage, available at http://en.wikipedia.org/wiki/Suffrage (Last visited on November 9, 2006).
[2] See E. COKE, 1 INSTITUTE OF LAWS OF ENGLAND, n. 41
[3] M.R. Damaska, Adverse Legal Consequence of Commutation and Their Removal- A Comparative Study, 59 J. CRIM. L. 351 ( 1968).
[4] David. C. Earnest, Neither Citizen nor Stranger: Why States Enfranchise Resident AlienS
World Politics –MUSE, Volume 58, Number 2, January 2006, pp. 242-275at 243
[5] Id
[6] Id
[7] M. P. JAIN, INDIAN CONSTITUTIONAL LAW 927 (2003)
[8] P. Nalla Thampy vs. B.L. Shankar, AIR 1984 SC 135
[9] Lal Babu Hussain vs. Electoral Registration Officer, AIR 1995 SC 1189; (1995) 3 SCC 100.
[10] The Representation of Peoples Act, 1951.
[11] 74025/01 ECHR 2004
[12] Article 3 of the First Protocol to the ECHR: ‘The high contracting parties to hold free elections at reasonable intervals by secret ballot under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature’
[13] Sec. 3 (1) of Representations of Peoples Act, 1983 (UK): ‘A convicted person during the time that he is detained in a penal institution in pursuance of his sentence is legally incapable of voting at any Parliamentary or local government’
[14] Hirst vs. Attorney General, (2001) EWHC Admin 239, para 40
[15] Id.
[16] Hirst vs. Attorney General, (2001) EWHC Admin 239, para 42
[17] Id.
[18] Sauve vs. Canada (Chief Electoral Officer) [2002] 3 SCR 519
[19] Richardson vs. Ramirez, 418 US 24 (1974)
[20] U.S. CONST., available at http://docs.law.gwu.edu/facweb/jsiegel/home/constitution.htm (last visited 12th March, 2016).
[21] Richardson, supra note 20 at 55
[22] Richardson vs. Ramirez 336 (1992) 90 DLB (4th) 330
[23] Id. at 341 – 342
[24] Canadian Charter, section 3: ‘Every citizen of Canada have the right to vote in an election of the House of Commons or of Legislative Assembly and to be qualified for membership therein.’
[25] Belczowski vs. The Queen 330 (1992) 90 DLR (4th).
[26] Canada Election Act, 2000, sec. 4C: ‘Every person who is imprisoned in a correctional institution serving a sent ence of two years or more’
[27] Canada Online, About Canadian Government, http://canadaonline.about.com/od/federalelections/fl/Canada-Heads-Into-Early-Expensive-Election-Campaign.htm (last visited on 11th March, 2016).
[28] CONSTITUTION OF AUSTRALIA, Section 41
[29] In R. vs. Pearson; Ex-parate Sipka (1983) 152 CLR 254.
[30] Id.
[31] Federal Commissioner of Taxation v. Munro, 178 (1926) 38 CLR 153.
[32] See M. V. PYLEE, CONSTITUTIONS OF THE WORLD 46 (2000).
Section 7 – The Senate shall be composed of senators for each State, directly chosen by the people of the State, voting, until the Parliament otherwise provides, as one electorate. But until the Parliament of the Commonwealth otherwise provides, may make laws dividing the State into divisions and determining the number of senators to be chosen for each division, and in the absence of such provisions the State shall be one electorate.
Until the parliament otherwise provides there will be six senators for each original State. The Parliament may make laws increasing or diminishing the number for senators for each State, but so that equal representation of several original States shall be maintained and that no Original State shall have less than six senators. The senators shall be chosen for a term of six years, and the names of senators chosen for each State shall be certified by the government to the Governor-General.
[33] See M. V. PYLEE, CONSTITUTIONS OF THE WORLD 46 (2000).
“Section 24 – The House of Representatives shall be composed of members directly chosen by the people of the Commonwealth, and the number of such members shall be, as nearly as practicable, twice the number of senators. The number of members chosen in several States shall be in proportion to the respective members of their people, and shall, until the Parliament otherwise provide, be determined, whenever necessary in the following manner:
A quota shall be ascertained by dividing the number of people of the Commonwealth, as shown by the latest statistics by the Commonwealth, by twice the number of the Senators;
The number of members to be chosen by each State shall be determined by dividing the number of people of the State, as shown by the latest statistics of the Commonwealth, by the quota; and if on such division there is a remainder greater than one-half of the quota, one more member shall be chosen in the State. But not withstanding anything in this section, five members at least shall be chosen in each Original State.”
[34] Lange v. Australian Broadcasting Corporation, 104 (1997) 145 ALR 96 .
[35] Australian Capital Television Pvt. Ltd v.The Commonwealth, (1992) 117 CLR 106.
[36] ACT v. The Commonwealth, 65 CLR 373 (1942)
[37] See J.M.Kerby, Upholding the franchise – Contrasting Decision in Philippines, U.S and Australia, 21 AUSTRALIAN BAR REV. (2001).
[38] Section 30& 51 (xxxvi).
[39] Attorney General (Ch) (Ex. Rer. Mekenlay) vs. The Common Wealth, (1996) 135 CLR 1, 35 & 36.
[40] Id.
[41] Langer vs. Commonwealth, 424 (1996) 134 ALR 400.
[42] M.P. JAIN, INDIAN CONSTITUTIONAL LAW 941 (2006).
[43] P. CHANDRASEKHAR RAO, THE INDIAN CONSTITUTION AND INTERNATIONAL LAW 139 (1993).
[44] U.N.Doc.ST/LEG/SER.E/10, 124-125
[45] A. K. Gopalan vs State of Madras, AIR 1950 SC 88.
[46] See D. J. DE, INTERPRETATION AND ENFORCEMENT OF FUNDAMENTAL RIGHTS, 629 (2000)
[47] Id.
[48] AIR 1997 SC 2841; (1997) 6 SCC 1
[49] Section 62 (5) of the Representation of Peoples Act, 1951: ‘No person shall vote at any election if he is confined in a prison, whether under a sentence of imprisonment or transportation or otherwise, or is in the lawful custody of the police. Provided that nothing in the sub-section shall apply to a prison subjected to preventive detention under any law for the time being in force.’
[50] Id.
[51] CONSTITUTION OF INDIA art 19 (1) (d).
[52] Id.
[53] Id.
[54] Sunil Batra vs. Delhi Administration AIR 1980 SC 1597.
[55] Section 30. Prisoners under sentence of death. — (1) Every prisoner under sentence of death shall, immediately on his arrival in the prison after sentence, be searched by, or by order of, the Jailer and all articles shall be taken from him, which the Jailer deems it dangerous or inexpedient to leave in his possession. (2) Every such prisoner shall be confined in a cell apart from all other prisoners, and shall be placed, by day and by night, under the charge of a guard.
[56] M.P. JAIN, INDIAN CONSTITUTIONAL LAW 943 (4th ed. 2003).
[57] 108 (1997) 145 ALR 96
[58] Sauve v. Canada, [2002] 3 SCR 519
[59] Hirst vs. United Kingdom, 2000 EWHC Admin 239.
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