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Voting rights of undertrials and convicts

Topics Covered:

  1. Salient features of the Representation of People’s Act.


Voting rights of undertrials and convicts


What to study?

  • For Prelims: Who can and who cannot cast their votes?
  • For Mains: Should undertrials and convicts be allowed to vote- arguments ‘For’ and ‘Against’.


Context: The Supreme Court is hearing a plea questioning an electoral law which denies undertrials and convicts their right to vote.


Who can vote and who cannot?

Under Section 62(5) of the Representation of the People Act, 1951, individuals in lawful custody of the police and those serving a sentence of imprisonment after conviction cannot vote. Undertrial prisoners are also excluded from participating in elections even if their names are on electoral rolls.

Only those under preventive detention can cast their vote through postal ballots.


What has the SC said on this?

The SC has observed that a person is in prison because of his or her conduct, and cannot claim equal rights as others who are not incarcerated.


Why they should be given voting rights?

  • The voting ban is criticised on the ground that it makes no offence-based or sentence-based classification — that is, prisoners are debarred from voting irrespective of the gravity of the offence they have committed, or the length of their sentence. It also makes no distinction between convicted prisoners, undertrials, and those in lawful police custody.
  • Besides, a person is innocent until proven guilty by law. Despite this, it denies an undertrial the right to vote but allows a detainee the same.
  • The provision also violates the rights to equality, vote (Article 326) and is arbitrary. It is not a reasonable restriction.


Need of the hour:

Undertrials should be allowed to vote. This is because there are many people, awaiting trial, who have spent more time in prison than the actual term their alleged crime merits. Their numbers are much bigger than convicts.



The ‘Prison Statistics India, 2014’ published by the National Crime Records Bureau, says there were 2,82,879 undertrials and 1,31,517 convicts lodged across 1,387 prisons in the country as on December 31, 2014.


Global practice:

  • In Europe, Switzerland, Finland, Norway, Denmark, Ireland, the Baltic States, and Spain already allow prisoner voting.
  • Countries like Romania, Iceland, the Netherlands, Slovakia, Luxembourg, Cyprus and Germany have opted for a middle path: Voting is allowed subject to certain permits and conditions such as the quantum of sentence served.
  • They are only disenfranchised as an added penalty based on the gravity of the crime. Bulgaria allows for anyone sentenced to less than a decade to vote. In Australia, the limit is five years.


Way ahead:

The increasing realisation that progressive criminal justice reforms, including the right to vote in the prisons, are the way forward, also stems from the fact that voter disenfranchisement has had an ugly history related to racism and oppression of the indigenous peoples in countries such as the US and Canada.

“Innocent until proven guilty” is a central tenet of the justice system. In this context, prisoner voting can prove to be a major component of rehabilitative justice and a step towards in the easier integration of these people into the mainstream after serving time.


Sources: the hindu.