6.10. Right to vote for undertrials

Undertrial prisoners are persons who have not been convicted of the charge(s) for which they have been detained, and are presumed innocent in law. Being a statutory right, the legislature can determine the terms on which the right to vote is to be enjoyed by the people of India subject to Articles 325 and 326 of the Constitution.

♤ Section 62(5) of RPA, 1951 governing the “right to vote”, stipulates that no person shall vote in any election if they are confined in a prison “under a sentence of imprisonment or transportation or otherwise” or are in the “lawful custody” of the police.

♤ Chapter 43 of the Reference Handbook on the General Elections, 2014 also makes it clear that “undertrial prisoners” are not eligible to vote, even if their names are on the electoral rolls.

♤ India denies voting rights to not only individuals convicted of a crime and serving a sentence in prison, but also to undertrials and even those in police custody.

The constitutionality of Section 62(5) of the RPA, 1951 was challenged before the Supreme Court in Anukul Chandra Pradhan v. Union of India1997 as being violative of the right to equality and the right to life under Articles 14 and 21. The Supreme Court took the view that it was reasonable to deny voting rights to convicted prisoners, undertrials and those in police custody. The following arguments had given by the Supreme Court: To curb the criminalisation of politics.

♤ Practical considerations and requirement of additional resources.

♤ A prisoner was “in prison as a result of his own conduct and is, therefore, deprived of his liberty during the period of his imprisonment [and] cannot claim equal freedom of movement, speech and expression with the others who are not in prison.

Arguments against the Judgement:

♤ Criminalisation of politics is a larger issue that cannot be handled only by preventing the undertrials to vote.

♤ Practicality and “resource crunch” are not sound justification to curb civil liberties.

♤ The SC observation contradicts the principle of “innocent until proven guilty”, at the same

time, presume undertrials to be guilty as far as voting rights are concerned.