Supreme Court Issues Notice On PIL Seeking Voting Rights For Undertrials

The Supreme Court on Friday issued notice to the Union Government and the Election Commission of India (ECI) on a public interest litigation (PIL) petition seeking to extend voting rights to undertrial and pre-trial prisoners across the country.

A bench comprising Chief Justice of India BR Gavai and Justice K Vinod Chandran issued notice on the PIL filed by Sunita Sharma. Advocate Prashant Bhushan appeared for the petitioner.

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 merely awaiting trial.

Section 62(5) reads as : 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:

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.

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

The petiton filed under Article 32 of the Constitution urges the Supreme Court to issue appropriate directions or guidelines to the Election Commission of India for setting up polling stations within prisons to facilitate voting by local incarcerated electors and to make provision for postal ballots for prisoners lodged outside their home constituencies or states. The plea clarifies that the proposed facility would exclude only those prisoners convicted or detained for offences relating to corrupt practices or electoral offences as defined under Part VII of the Representation of the People Act, 1951.

Additionally, the petitioner seeks judicial intervention to fill the legal vacuum created by Section 62(5) of the RPA 1951 by laying down conditions that restrict disenfranchisement only pursuant to an individualized 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 highlights that over 4.5 lakh individuals currently languishing in Indian jails are pre-trial, under-trial, or non-finally convicted prisoners. Excluding those incarcerated for offences related to corrupt or electoral practices, the plea asserts that the existing blanket prohibition under Section 62(5) disenfranchises a vast population that continues to enjoy the presumption of innocence under the law.

'No Blanket Ban In Democracies Worldwide'

The petitioner submits that India's blanket disqualification of prisoners from voting stands in stark contrast with global democratic practices. Referring to a comparative study of democracies, the plea states that across the world, voting rights are typically restricted only in three limited circumstances: pursuant to an individualized judicial determination, after final conviction for specific offences, or where the disqualification forms part of a judicial sentence.

 It further points out 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.

Further, the plea asserts that the blanket ban undermines India's obligations under international treaties and conventions, including the International Covenant on Civil and Political Rights (ICCPR), which upholds the right of every citizen to take part in public affairs and to vote in genuine periodic elections.

The petitioner emphasises that the restriction also contradicts the universally recognised principle of presumption of innocence, especially since nearly 75% of India's prison population comprises undertrial detainees.  

'If Convicted Persons Can Contest, Why Can't Undertrials Vote?'

The plea highlights that even convicted individuals serving sentences are permitted to contest elections, thereby influencing law-making processes. If a convicted individual can contest elections and represent lakhs of voters, how can an ordinary citizen,who has not even been declared guilty,be denied the right to vote and to choose their own representative?” the petitioner asks.

The petitioner recalls that the constitutional validity of Section 62(5) was upheld by the Supreme Court earlier in Anukul Kumar Pradhan v. Union of India (1997). However, there, the Court took the view that the right to vote was only a mere statutory right. In this context, the petitioner referred to the 2023 Constitution Bench judgment in Anoop Baranwal which held that the right to vote is a constitutional right. Therefore, the petitiioner argues that Anukul Pradhan cannot apply now when the understanding regarding the right to vote has changed.

It may be noted that in 2023, the Suprem Court had refused to entertain another petitioner challenging to Section 62(5) RP Act, observing that the issue was settled in Anukul Chandra Pradhan

 Case : Sunita Sharma v. Union of India | WP(c) 909/2025