A public interest litigation (PIL) petition has been filed before the Supreme Court challenging the denial of voting rights to undertrial prisoners in India [Sunita Sharma v. Union of India and anr]..A Bench of Chief Justice of India BR Gavai and Justice Vinod Chandran today sought the response of the Central government and the Election Commission of India (ECI) in the matter. .The petition before the Court was filed by a lawyer, Sunita Sharma, who has contended that the blanket ban on voting by prisoners under Section 62 (5) of the Representation of People Act, 1951 (RP Act), is arbitrary.The said provision lays down that,"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.".Sharma has submitted that such a blanket ban on voting by prisoners, including those who have not yet been convicted of any crime, is arbitrary. The plea adds that Section 62 (5) of the RP Act lacks clarity, is not precise or complete, is unfair and undermines public confidence in the rule of law."Furthermore, the blanket ban violates the universally recognized principle of the presumption of innocence. In India, over 75% of prisoners are pre-trial or undertrial detainees, many of whom remain incarcerated for decades. In 80 to 90 % cases, such individuals are ultimately acquitted, yet they are denied the fundamental democratic right to vote for decades," the plea goes on to highlight. Sharma has also pointed out that those convicted of criminal offences are allowed to contest elections (provided the crime is not any of the serious offences mentioned in Section 8 of the RP Act).While so, she has questioned why voting rights are denied to undertrial prisoners, when their lawmakers can even be convicts. "When a prisoner /convicted individual is permitted to contest elections who can influence law making system by becoming part of law making authority and can represent lakhs of voters, then how can ordinary citizen—who have not been declared or adjudicated as convicted—be denied the right to vote and to choose their own representative?" the plea states. .The plea further notes that the ECI has earlier undertaken "mobile voting" programmes to enable those in hospitals, nursing homes, etc. to exercise their right to vote. Sharma has questioned why similar measures cannot be extended to allow undertrial prisoners confined in jails to vote during elections. "It is both feasible and constitutionally imperative to facilitate voting by local incarcerated electors—through polling stations within the approximately 1,350 jails nationwide and via postal ballots by interstate electors," the plea says. The petitioner has also acknowledged that the validity of Section 62 (5) of the RP Act was earlier upheld in the case of Anukul Chandra Pradhan v. Union of India (1997). However, the plea points out that at the time, the top court had viewed the right to vote as a statutory and not a fundamental right under the Constitution. Since then, the Supreme Court's stance on the right to vote has changed, the plea highlights, referring to the ruling in Anoop Baranwal v. Union of India (2023), where the Court held that the right to vote is not merely a Constitutional right but would fall under Part III of the Constitution, meaning that it has the status of a fundamental right. .The petitioner has, therefore, now urged the top court to issue guidelines to enable the right to vote for undertrial prisoners (except those convicted for corrupt practices under election laws), whether by ordering the authorities to set up polling stations at jails or by allowing postal ballots. The petitioner also calls on the Court to "fill the vacuum" of 62(5), RP Act by adding conditions under which a prisoner may be denied the right to vote based on case-to-case judicial determinations, whether it be only whether the prisoner is convicted for certain offences or for offences that carry a particular prison term. The petition has been filed through Advocate Prashant Bhushan.
