The Supreme Court of India has sought responses from the Central Government and the Election Commission of India (ECI) regarding a Public Interest Litigation (PIL) seeking voting rights for undertrial prisoners. A bench comprising Chief Justice B.R. Gavai and Justice K. Vinod Chandran addressed the matter on Friday, acknowledging arguments that the current blanket ban on voting for undertrials violates constitutional guarantees and international democratic norms.
The PIL, filed by Sunita Sharma from Patiala, Punjab, seeks the court's intervention to ensure that prisoners who have not been convicted of electoral offenses or corruption are not arbitrarily deprived of their right to vote. The petition challenges Section 62(5) of the Representation of the People Act, 1951, which imposes a blanket ban on voting by individuals confined in prisons, regardless of their conviction status.
Advocate Prashant Bhushan, representing the petitioner, argued that the current ban violates the presumption of innocence, a cornerstone of the justice system, as a significant percentage of prisoners are undertrials who are often acquitted. He highlighted that denying voting rights to this population undermines the spirit and intent of the Constitution. Bhushan stated that nearly 4.5 lakh prisoners across India are affected by this restriction, the majority of whom are undertrials.
The petition proposes a more nuanced approach, suggesting that the voting restriction should be limited to individuals convicted of specific offenses or serving sentences exceeding a particular duration. It also suggests setting up polling stations within prisons and making provisions for postal ballots for prisoners lodged outside their home constituencies. The plea clarifies that the suggested changes would exclude prisoners convicted of or detained for offenses related to corrupt practices or electoral offenses as defined under the Representation of the People Act, 1951.
The petition cites data from the National Crime Records Bureau (NCRB) for 2022, which indicates that approximately 77% of India's prison population comprises undertrials, while the conviction rate for total IPC offenses is only 8.55%. Data collected till December 2023 indicates that 73.5 percent of all prisoners are undertrial inmates. The denial of electoral franchise to such a large section of citizens raises questions about the fairness and inclusivity of the electoral process.
The petition also draws a comparison with other democracies, noting that voting rights are typically restricted only after an individualized judicial determination, a final conviction for specific offenses, or when disqualification forms part of a judicial sentence. It emphasizes that even Pakistan, an immediate neighbor of India, allows undertrial and pre-trial prisoners to retain their right to vote.
The Supreme Court has previously upheld the constitutional validity of Section 62(5) of the Representation of the People Act, 1951. However, the petitioner argues that the understanding of the right to vote has evolved since then. The petition references the 2023 Constitution Bench judgment in Anoop Baranwal, which held that the right to vote is a constitutional right.
The Court has scheduled a further hearing on this matter in four weeks.
