SC issues notice to Centre, ECI on plea seeking voting rights to undertrials

The Supreme Court on Friday issued notices to the Centre and Election Commission of India (ECI) on a Public Interest Litigation (PIL) seeking voting rights for undertrials.

A bench of Chief Justice of India BR Gavai and Justice K Vinod Chandran sought a response from the Centre and ECI.

The PIL was filed by Sunita Sharma through advocate Prashant Bhushan.


Bhushan said, "This is about the voting rights of about 5 lakh undertrial prisoners."

The petition sought a direction to issue guidelines for setting up polling stations in prisons for local prisoners and to make provisions for postal ballots for prisoners lodged outside their home constituencies or states.

It sought voting rights for undertrial prisoners, excluding those who are in prisons for any offence related to corrupt practices and offences connected with elections.

Section 62(5) of the Representation of the People Act, 1951 imposes a blanket ban on voting by individuals confined in prisons, regardless of whether they have been convicted or are on trial.

The petitioner further sought judicial intervention to fill the legal vacuum created by Section 62(5) of the RPA by laying down conditions that restrict disenfranchisement only pursuant to an individualised judicial determination, final conviction for specified offences, or the tenure of sentence, instead of the existing blanket ban that applies indiscriminately to all prisoners.

The petition stated that it was concerned about the voting rights of about 4.5 lakh pre-trial, under-trial, and non-finally convicted prisoners.

The petitioner argued that a blanket ban should not be imposed and that the right should be given on an individualised consideration.

The petition referred to a comparative study of democracies and said that across the world, voting rights are typically restricted only in three limited circumstances -- pursuant to an individualised judicial determination, after final conviction for specific offences, or where the disqualification forms part of a judicial sentence.

The plea further said that even in Pakistan, India's immediate neighbour, undertrial and pre-trial prisoners retain their right to vote, underscoring that India's approach deviates from international norms and democratic values.

"Furthermore, the blanket ban violates the universally recognised principle of the presumption of innocence. In India, over 75 per cent of prisoners are pre-trial or under-trial detainees, many of whom remain incarcerated for decades. In 80 to 90 per cent of cases, such individuals are ultimately acquitted, yet they are denied the fundamental democratic right to vote for decades," the petition stated.

According to "Prison Statistics India 2023" data published by the National Crime Records Bureau (NCRB), 73.5 per cent of all prisoners are undertrial inmates, as per data collected till December 2023. Out of a total of 5,30,333 prisoners, 3,89,910 are undertrial, a dip from 4,34,302 undertrials in 2022.