This article has been authored by Nandini Gupta a 4th year student at University Institute of Legal Studies, Panjab University


India, the world’s largest democracy, gives its citizen the right to vote under Article 326 of the Constitution of India. The right of people to cast votes and elect their representatives is known as ‘franchise’ and India recognizes the principle of ‘Adult franchise’, wherein under Article 326 every person who is a citizen of India and a major can cast their vote. Universal Adult Franchise ensures that every person in a democracy is entitled to vote without any discrimination on the basis of sex, caste, race or religion. Right to vote, though not a fundamental right, is fundamental to the foundation of a democratic country and forms its bedrock. This constitutional right is however, restricted by Section 62(5) of the Representation of People Act, 1951 (“RPA”) which states that prisoners, whether under a sentence of imprisonment or transportation or otherwise, or under-trial prisoners in lawful custody of police won’t be allowed to vote in any election. This restriction is not applicable on Detenues i.e., person subjected to preventive detention.

Breakdown of section 62(5) of RPA

According to Section 62(5), convicted and undertrial prisoners are disentitled to vote. The section makes an exception for Detenues, who can cast their vote through postal ballots. Prisoners unable to furnish bail are also not entitled to vote, but prisoners out on bail have the right to do so. Now as per the data by National Crimes Records Bureau for the year 2019, there are currently 4,78,600 prisoners in India, the distribution of which is as follows –

1. Convicts – 1,44,125 – 30.11%

2. Undertrials – 3,30,487 – 69.05%

3. Detenues – 3,334 – 0.67%

Thus, 4,74,612 people are disenfranchised by virtue of this provision. India has been denying the most valuable right fundamental to a democracy i.e., the right to choose its representatives. Right to vote for prisoners is one step towards shaping our criminal justice system into a caring, and reform-oriented institution, one that abides by the universally accepted human rights values.

The prohibition emanates from the ‘Social Contract Theory’ that dictates that those citizens who won’t break laws would enjoy the benefits of the society they reside, in exchange. Therefore, when a citizen breaks law, he voluntarily gives away his benefits. So, a person involved in corrupt and illicit practices should not be entrusted with the responsibility of choosing leaders that would govern the society, and hence should be punished with denial of certain rights.

The proviso to Section 62(5) states that a person doesn’t cease to be an elector due to the prohibition on voting. Section 3 of the RPA makes a distinction between an elector and a voter, the former being qualified to be chosen as a public representative. Section 8 of the RPA puts a bar of 6 years on the people convicted of certain offences enumerated in the section post release, from contesting elections. A plea filed by BJP Leader Ashwini Upadhyay in 2020 urged the Supreme Court to put a lifetime ban on legislators from contesting elections, as opposed to the 6 year period which is violative of Article 14 and basic structure of the Indian Constitution. The SC has held that a prisoner cannot be excluded solely because they were convicted in a criminal case. However, it has issued some guidelines in the cases of Public Interest Foundation v Union of India and Rambabu Singh Thakur v Sunil Arora & Ors. and made it mandatory for political parties to provide a justification publicly for selecting candidates with a criminal background. A 2-judge bench of Justices R F Nariman and S Ravindra Bhat said that a political party will have to provide reasons for giving ticket to a candidate with criminal background than picking someone with a clean image. The bench accepted suggestions of the EC that the parties must be directed to publish credentials, achievements and criminal antecedents of candidates on newspaper, social media platforms and their websites along with the explanation for selecting them.

1997 & 2020 Judgment on Constitutionality

The constitutionality of Section 62(5) was first challenged in the case of Anukul Chandra Prasad v Union of India (1997) wherein the petitioner contended that this section violates Article 14 by drawing distinction between people inside the jail and outside. It is also violative under Article 21 as a prohibition on right to vote denies the right to dignity. The court held that –

1. Right to Vote being a statutory right guaranteed by Section 62(5) can be subjected to limitations.

2. The distinction made between Detenues and Prisoners is classified because the former is confined to avoid any breach of law, but the latter is confined post the breach of law.

3. Allowing people from prisons to vote would require huge deployment of police force which is not possible due to unavailability and lack of infrastructure.

4. Section 62(5) averts criminalization of politics which is subversive of free and fair elections. A person is in the prison due to his own actions and cannot demand equal degree of freedom and liberty as that of non-prisoners.