SC issues notice to Centre, EC on PIL seeking restoration of undertrials’ voting rights

The Supreme Court on Friday asked the Centre and the Election Commission to respond to a PIL seeking recognition of voting rights for nearly 4.5 lakh undertrial prisoners lodged in various jails across India.

A bench led by Chief Justice of India BR Gavai asked the Centre and the poll panel to respond to the PIL filed by Sunita Sharma – a resident of Patiala in Punjab after her counsel Prashant Bhushan submitted that the present blanket ban imposed under Section 62(5) of the Representation of the People Act, 1951, violated constitutional guarantees and international democratic norms.

Section 62(5) of the Act states 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”. However, those under preventive detention can vote.

“If convicted persons can contest elections, why can’t undertrials vote?” she wondered.

Contending that such a sweeping disqualification violated the principles of democracy and the presumption of innocence, as nearly 75 per cent of India’s prison population comprised undertrial prisoners, Sharma urged the top court to ensure that prisoners — not convicted of electoral offences or corruption — were not arbitrarily deprived of their democratic right to vote.

The petitioner sought directions to the Election Commission to set up polling stations within prisons and to make provision for postal ballots for prisoners lodged outside their home constituencies or states.

She wanted the top court to fill the legal vacuum left by Section 62(5) by framing guidelines that limit disenfranchisement only in cases involving final conviction or specific judicial determinations.

Contending that most democracies restrict voting rights of prisoners only after final conviction or through individualised judicial determinations, she said India’s blanket ban was an exception among democracies and went against its international obligations under the International Covenant on Civil and Political Rights (ICCPR) which recognises every citizen’s right to participate in public affairs and vote in genuine periodic elections.