SC seeks response of Centre, EC on PIL for giving voting rights to undertrials

New Delhi: The Supreme Court on Friday sought responses of the Centre and the Election Commission on a PIL seeking recognition of voting rights for nearly 4.5 lakh undertrial prisoners lodged in jails across India.

A bench comprising Chief Justice B R Gavai and Justice K Vinod Chandran took note of the submissions of lawyer Prashant Bhushan that the present blanket ban imposed under Section 62(5) of the Representation of the People Act, 1951, violates constitutional guarantees and international democratic norms.

The petition filed by Sunita Sharma, a resident of Patiala in Punjab, made the Centre, through the Ministry of Law and Justice and the Election Commission, as respondents.

“This petition concerns the voting rights of about 4,50,000 pre-trial, under-trial, and non-finally convicted prisoners (excluding those prisoners who are in prisons for corrupt practices and offences connected with elections),” it said.

It seeks judicial intervention to ensure that prisoners, who have not been convicted of electoral offences or corruption, are not arbitrarily deprived of their democratic right to vote.

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The PIL sought issuance of “guidelines/ directions to set polling stations in prisons for local prisoners. And postal ballots for inter constituency/ interstate elector prisoners (excluding those prisoners who are in prisons for any offence related to corrupt practices and offences connected with elections…)”.

The plea said that Section 62(5) of the Representation of the People Act, 1951, imposes an unconstitutional and blanket restriction on all incarcerated individuals, regardless of whether they are convicted or awaiting trial.

This is inconsistent with the statement of objects and reasons of the laws, which primarily govern the inclusion and disqualification of electors and members of legislatures, and not the wholesale exclusion of eligible citizens, it said.

The PIL said section 62(5) was intended to regulate the voting rights of members of legislative bodies and was never meant to disqualify ordinary electors, particularly those yet to be convicted.

The application of this section fails the tests of constitutional consistency, non-arbitrariness, precision and fairness, and undermines public confidence in the rule of law, it said.

Over 75 per cent of the prison population comprises undertrial or pre-trial detainees, many of whom languish in jails for years, sometimes decades, before acquittal, it said.

“Denying such individuals their right to vote not only contravenes the principle of presumption of innocence but also deprives them of participation in democratic governance despite no final adjudication of guilt,” the plea said.

The plea referred to international practices and judicial precedents from other democracies, observing that no major democracy imposes a blanket ban on prisoners’ voting rights.

“Globally, voting rights are typically curtailed only after individualised judicial determination or for specific serious offences,” it said, adding that blanket bans have often been struck down by courts as unconstitutional in various jurisdictions.

It also cited India’s obligations under international treaties and conventions on civil and political rights, which guarantee non-discriminatory participation in democratic processes.

“Even in our neighbouring country Pakistan, undertrial and pre-trial prisoners retain their voting rights. Indian Penal Code/Bharatiya Nyaya Sanhita do not provide for taking away voting rights in an impugned manner. Under the Constitution, the right to vote is derived from inclusion in the electoral roll.

“Disqualification from electoral rolls may be imposed solely on grounds of non-residence, unsoundness of mind, or crime, corrupt, or illegal practices…,” it said.

The plea referred to the poll panel’s 2016 initiative, titled ‘No Voter to Be Left Behind’, and its published document ‘How the World Votes: A Compendium of Voting Methods in Democracies’, which discusses global practices such as mobile voting in prisons, hospitals and nursing homes.

“After nearly a decade, the ECI must now give concrete shape to its own commitment of extending the franchise to prisoners,” it said.

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