E-Paper
SC seeks Centre, EC response on plea challenging blanket ban on undertrials’ voting rights
The petition filed by lawyer Sunita Sharma urged the court to lay down guidelines for an individualised determination by restricting the voting ban to persons convicted of certain specified offences
New Delhi: The Supreme Court on Friday sought responses from the Centre and the Election Commission (EC) on a petition challenging the blanket ban on voting rights for prisoners who are undertrials or pre-trial detainees and have not yet been convicted.
A bench of Chief Justice of India (CJI) Bhushan R. Gavai and Justice K. Vinod Chandran was hearing a petition filed by lawyer Sunita Sharma, which urged the court to lay down guidelines for an individualised determination by restricting the voting ban to persons convicted of certain specified offences or based on the duration of the sentence.
The petition suggested that, as a consequential direction, if voting rights are extended to prisoners, polling stations can be set up in prisons for local prisoners and postal ballots provided for inter-constituency or interstate elector prisoners.
Advocate Prashant Bhushan, who argued the petition, said the case involves nearly 4.5 lakh prisoners who are mostly undertrials. “The Preamble of RPA 1951 establishes that its purpose is to govern the qualifications and disqualifications of members of those Houses. However, Section 62(5) of RPA 1951, which pertains to voting rights of members (of parliament and assemblies), inadvertently imposes a blanket ban on all incarcerated individuals who are otherwise qualified electors, rather than applying solely to members of Houses,” the petition said.
Bhushan said that the voting right is available to those whose names are included in the electoral roll and under the Representation of the People Act, 1950 (RPA 1950), disqualification from voting is prescribed under Section 16(1)(c) of RPA 1950 on two grounds — under any law related to corrupt practices, and law relating to electoral offences. A person may also be disqualified from electoral rolls on grounds of non-residence and unsoundness of mind, he added.
The petition pointed out that even by excluding those who are in prison for corrupt practices and offences connected with elections, there are still about 450,000 pre-trial, under-trial, and non-finally convicted prisoners across the country who are wrongly denied voting rights.
The plea questioned the prevalence of such a ban when no such restriction is prescribed in the Indian Penal Code, now replaced by the Bhartiya Nyaya Sanhita. It referred to global practices and cited a study indicating that across democratic countries, no such blanket ban exists on voting rights. However, this right could be curtailed in three ways: pursuant to an individualised judicial determination, final conviction for specified offences and tenure of sentence, or where such disqualification forms part of a judicial sentence.
Sharma, who drafted the petition, further reasoned the basis for such a restriction when the law permits an undertrial or even a convicted individual to contest elections. “Then how can ordinary citizens who have not been declared or adjudicated as convicted be denied the right to vote and to choose their own representative,” the plea said.
Section 62(5) says, “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.”
In 1997, the top court in the Anukul Chandra Pradhan case upheld the constitutional validity of Section 62(5) as it held that the right to vote is subject to the limitations imposed by the statute and is not a fundamental right under the Constitution, the petition said.
The petition suggested that this view has undergone a change with the March 2023 Constitution bench decision in the Anoop Baranwal case, where the court suggested a high-powered committee of the Prime Minister, Chief Justice of India, and Leader of Opposition in Lok Sabha to appoint the Chief Election Commissioner and Election Commissioners. In this decision, it was held that the right to vote is a fundamental right as well.
The petition said that approximately 77% of prisoners in the country are under-trials and denying voting rights to such a significant segment is contrary to the spirit and intent of the Constitution. Moreover, going by the legal maxim that a person is innocent until proven guilty, the petition pointed out that according to data provided under the National Crime Records Bureau 2022, the conviction rate for total reported IPC offences is only 8.55%, and for charge-sheeted cases is 14.7%, which is very low.
The court posted the next hearing on the matter after four weeks.
