SC seeks Centre, ECI response on plea for voting rights to undertrials

The Supreme Court on Friday issued notices to the Central government and the Election Commission of India (ECI) on a public interest litigation (PIL) seeking to address the vacuum in Section 62(5) of the Representation of the People Act, 1951 (RPA) — a provision that imposes a blanket ban on voting by all prisoners, including undertrials who have not been convicted.

A Bench of Chief Justice B.R. Gavai and Justice K. Vinod Chandran sought responses on the plea filed by Sunita Sharma, represented by advocate Prashant Bhushan, seeking the framing of the guidelines and conditions to prevent the disenfranchisement of all the prisoners.

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“This concerns nearly five lakh undertrial prisoners,” Bhushan told the Bench.

The petition does not challenge the constitutionality of Section 62(5) but seeks to introduce safeguards — allowing restrictions on voting by prisoners only after an individualised judicial determination, final conviction for specific offences, or depending on the duration of the sentence.

The petitioner has said that equating undertrials with convicted prisoners is arbitrary and contrary to the principles of justice.

The plea further seeks directions to the Centre and the ECI to set up polling booths inside prisons for local inmates and introduce postal ballot facilities for those lodged outside their constituencies. It also suggests that only prisoners convicted of electoral offences or corruption be excluded from the proposed reform.

Under the existing Section 62(5) of the RPA, every person confined in prison—whether convicted or awaiting trial—is barred from voting, without distinction. The petition contends that this sweeping ban undermines democratic participation, especially when over 75 per cent of India’s prisoners are undertrials yet to be found guilty of any offence.

Citing international standards, the petition notes that most democracies restrict voting rights only under limited conditions such as final conviction or when the disqualification forms part of a judicial sentence. “Even in Pakistan, undertrial and pre-trial detainees retain their right to vote,” it added, arguing that India’s blanket restriction is inconsistent with global democratic norms.

The plea also highlighted that in 80–90 per cent of cases, undertrials are eventually acquitted but remain disenfranchised for extended periods. “The blanket prohibition violates the fundamental presumption of innocence,” it said, stressing that these individuals are deprived of their basic democratic right to vote for no proven wrongdoing.