THE SUPREME COURT ON FRIDAY sought responses from the Central government and the Election Commission of India (‘ECI’) on a public interest litigation (‘PIL’) seeking to fill the vacuum in Section 62(5) of the Representation of the People Act, 1951 (‘RPA’) — a provision that currently imposes a blanket ban on voting by all prisoners, including undertrials who have not been convicted.
A Bench comprising Chief Justice B.R. Gavai and Justice K. Vinod Chandran issued notice on the plea filed by Sunita Sharma, represented by advocate Prashant Bhushan, which seeks to frame guidelines and conditions to end disenfranchisement of prisoners under the current law. “This is about the voting rights of about five lakh undertrial prisoners,” Bhushan told the Court.
The petition does not challenge the constitutional validity of Section 62(5) but instead seeks judicial guidelines to ensure that voting restrictions apply only under defined and proportionate circumstances—namely, pursuant to an individualised judicial determination, after final conviction for specific offences, or based on the length or nature of the sentence. The petitioner contended that the present blanket bar equates the undertrial with convicted prisoners.
The plea urges the Court to direct the government and the ECI to establish polling stations within prisons for local detainees and provide postal ballot facilities for prisoners held outside their home constituencies. It also seeks to exclude from the proposed voting rights only those convicted of corrupt practices or electoral offences.
The petitioner contended that the present blanket bar equates the undertrial with convicted prisoners.
Section 62(5) of the RPA, 1951, currently prohibits all individuals confined in prison—from convicts to those awaiting trial—from exercising their right to vote, irrespective of the nature of their detention. The petitioner argues that this sweeping restriction has created a legal vacuum that undermines democratic participation, particularly when over 75 per cent of India’s prison population consists of undertrials who are yet to be found guilty.
Citing global practices, the plea highlights that most democracies limit disenfranchisement only in narrow circumstances, such as after final conviction or as part of a judicial sentence. “Even in Pakistan, undertrial and pre-trial prisoners retain their right to vote,” the petition observed, arguing that India’s approach deviates from international democratic standards.
It further noted that in 80 to 90 per cent of cases, undertrials are eventually acquitted, yet remain disenfranchised for years. “The blanket ban violates the universally recognised principle of presumption of innocence,” the petition stated, adding that “ yet they are denied the fundamental democratic right to vote for decades”.