SC Reopens Debate on Voting Rights for Undertrial Prisoners, Challenges Blanket Ban

The Supreme Court of India has initiated a critical re-examination of one of the most enduring restrictions on electoral participation, issuing notice to the Union Government and the Election Commission of India (ECI) on a Public Interest Litigation (PIL) that challenges the sweeping denial of voting rights to undertrial prisoners.

On October 10, 2025, a Bench led by Chief Justice of India B.R. Gavai and comprising Justice K. Vinod Chandran, sought responses on the petition filed by Sunita Sharma, represented by senior advocate Prashant Bhushan. The PIL squarely targets the operation of Section 62(5) of the Representation of the People Act, 1951 (RP Act), which currently imposes a blanket ban on all individuals confined in prison, regardless of their guilt or status.

The legal magnitude of this case is immense. It seeks to enforce electoral rights for a massive, yet politically invisible, constituency: the estimated 4.5 to 5 lakh undertrial and pre-trial detainees currently incarcerated across India. The petitioner articulated that the prohibition, which makes no distinction between convicted prisoners and those merely accused, fundamentally violates constitutional principles, particularly the presumption of innocence.

The Statutory Wall: Decoding Section 62(5) of the RP Act

The core of the controversy lies in the restrictive phrasing of Section 62(5) of the RP Act, 1951. The provision explicitly states: “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.”

This provision casts an exceptionally wide net. By using the phrase “whether under a sentence of imprisonment or transportation or otherwise,” the law equates the penal status of a convicted individual with that of an undertrial—a person who is merely awaiting the final determination of their guilt.

Crucially, the law contains a specific, and often-criticised, exception: “Provided that nothing in this sub-section shall apply to a person subjected to preventive detention under any law for the time being in force.”

This exemption highlights the inherent constitutional inconsistency. A person detained without charge or trial under preventive detention laws retains their right to vote, while an individual detained pending trial for an alleged offence—and who is legally presumed innocent—is automatically disenfranchised. This classification appears highly arbitrary and forms the crux of the current constitutional challenge.

The Constitutional Quagmire: Presumption of Innocence and Article 14

The central argument against the blanket ban rests on its incompatibility with two foundational constitutional tenets: the Right to Equality guaranteed under Article 14 and the Right to Life and Liberty under Article 21, which includes the principle of the presumption of innocence.

The petitioner contends that the current law fails the test of reasonable classification under Article 14. To be constitutionally valid, any classification must be founded on an intelligible differentia (a discernible difference between the groups) and must have a rational relation to the objective sought to be achieved by the legislation.

1. Intelligible Differentia: The law fails to distinguish between a convict (whose guilt is proven) and an undertrial (whose innocence is presumed). Their legal statuses are fundamentally distinct, yet the electoral restriction treats them identically.

2. Rational Nexus: The purported legislative objective often cited—maintaining the purity of the electoral process and preventing the criminalization of politics—is poorly served by this blanket ban.

The law creates an arbitrary distinction between those who are temporarily deprived of liberty (undertrials) and those who are temporarily detained for other purposes (persons in preventive detention or even those released on bail). Denying the franchise to an undertrial, who may subsequently be acquitted, effectively imposes a form of penal consequence prior to the final judgment. As highlighted in the petition, in India, a staggeringly high percentage of undertrials are eventually acquitted, meaning that lakhs of citizens are deprived of their fundamental democratic right without ever having been proven guilty.

Furthermore, the right to vote, though classified by the Supreme Court as a statutory right governed by the RP Act, has deep constitutional roots, flowing from Article 326 (adult suffrage) and being intrinsically linked to freedom of expression under Article 19(1)(a). Arbitrarily restricting this right, even if statutory, requires rigorous constitutional justification.

Jurisprudence and the Roadblocks to Reform

The Supreme Court is not considering this issue de novo. The constitutional validity of Section 62(5) was previously challenged and upheld by the Apex Court in the 1997 case of Anukul Chandra Pradhan v. Union of India.

In Anukul Chandra Pradhan, the Supreme Court had justified the restriction on two primary grounds:

• Forfeiture of Rights: The court opined that a person confined in prison due to their own conduct cannot claim the same freedom of movement or expression as a person not in custody. Incarceration automatically entails a loss of certain rights.

• Logistical Challenges and Purity of Elections: The ruling also cited the administrative difficulties in setting up polling stations inside prisons and ensuring free and fair voting, while also asserting the need to keep persons with a 'criminal background' away from the election scene.

This 1997 precedent has historically acted as a legal shield for the provision. Notably, in May 2023, a bench led by then CJI D.Y. Chandrachud refused to entertain a similar plea, explicitly referencing the established jurisprudence that upheld Section 62(5).

However, the current PIL adopts a strategically nuanced approach. Instead of merely challenging the constitutional validity (which previous benches were hesitant to overturn), the petitioner seeks judicial intervention to fill the "legal vacuum" left by the blanket ban. This request urges the Supreme Court to frame guidelines that mandate a proportional and individualised approach, restricting disenfranchisement only in specific, defined circumstances, such as:

• Pursuant to an individualised judicial determination.

• After a final conviction for specified, serious offences.

• Where the disqualification forms part of the judicial sentence.

By seeking guidelines rather than outright striking down the section, the PIL seeks to persuade the Court to move beyond the rigid stare decisis of Anukul Chandra Pradhan by interpreting the provision in light of modern constitutional values, particularly the expanding scope of Article 21 rights.

The Disparity in Contesting vs. Voting Rights

A key incongruity that strengthens the petitioner’s argument relates to the rules for contesting elections.

Section 8 of the RP Act disqualifies a person from contesting elections only upon conviction for certain criminal offences, and only if they are sentenced to imprisonment for two years or more. A person who is merely facing trial, or is out on bail, is fully eligible to contest and be elected to Parliament or a State Legislature.

This creates a peculiar democratic paradox:

• A high-profile undertrial, lodged in prison, cannot vote for the local representative.

• That same individual, if they can file their nomination (which is permissible), can potentially contest and be elected to the legislature while still being incarcerated and presumed innocent.

If the intention of the law, as argued in the past, is to maintain the purity of the electoral process, then the current framework is inherently contradictory, imposing a harsher penalty (loss of franchise) on the non-convicted voter than on the non-convicted candidate.

Global Practices and Democratic Imperatives

India's position on prisoner disenfranchisement stands in stark contrast to global democratic norms. International human rights bodies, including the UN Human Rights Committee, view the denial of voting rights solely based on custodial status as a violation of the presumption of innocence and disproportionate to the state’s interest.

In major democracies, restrictions are typically limited to those serving sentences for specific felonies, electoral crimes, or only after an explicit judicial determination. For instance, even in India’s immediate neighbour, Pakistan, undertrial and pre-trial prisoners generally retain their right to vote. The move towards rehabilitation and reintegration—a critical objective of modern correctional jurisprudence—is severely undermined when a person’s political voice is silenced while they are still legally innocent.

The current SC notice is thus not just a procedural step; it signals the Court's willingness to critically assess whether logistical concerns and outdated concerns about ‘purity’ can continue to justify the disenfranchisement of a population segment that, according to official NCRB data, accounts for nearly three-quarters of India's prison inmates. A judicial finding here could force the ECI and the Centre to develop the necessary framework—such as establishing temporary polling facilities inside jails or facilitating postal ballots—to truly democratise the electoral process in India. The final ruling will determine if the democratic spirit of the Constitution can finally penetrate the walls of India’s jails for its legally innocent citizens.