The Supreme Court (SC) of India recently refused to hear pleas from two former Maha Vikas Aghadi (MVA) ministers, to be released and vote in the Maharashtra Legislative Council elections. The two ministers are in judicial custody on money laundering charges,

However, the SC stated that it would consider whether some exceptions could be made through judicial interpretation to allow jailed MLAs and MPs to vote in Rajya Sabha and Legislative Council elections.


What did the court observe?

According to the SC bench,

  • Section 62(5) of the RPA bars anyone in prison from voting in any elections, except those kept behind bars under preventive detention.
  • The RPA provision does not discriminate between ordinary jailed citizens and jailed representatives of the people.
  • Parliament has not made any exceptions to this blanket prohibition.


Right to vote for prisoners

  • Right to vote in India
      • The Indian Constitution (under Article 326) has granted the right to vote to all Indian citizens of sound mind above the age of 18, irrespective of an individual’s caste, religion, social or economic status.
      • Voting is not a fundamental right, but is a legal right granted to citizens. This right is universally granted to all Indians, with a few exceptions.
  • Right to vote for the prisoners in India
      • As per the Prisoner Security Act, 1894, a prisoner is any person who is kept in the prison for either being suspected of any crime committed by him/her or is undergoing punishment for any unlawful act.
      • The right to vote for such a person is mentioned under the Representation of the Peoples Act (RPA), 1951. Section 62 of the RPA basically talks about the people who are exempted from this process of election and are deprived of this “right to vote”.
      • Section 62(5) of the RPA states that no person confined in prison or in the lawful custody of police shall be allowed to vote and the right to vote should not be denied to the person who is in custody for preventive detention.
  • Interpretation of Indian Judiciary
      • In 1997, the SC upheld the constitutionality of Section 62 of the RPA, ruling that it is not a right conferred under Article 14 of the Indian Constitution and is subject to legislative limitations.
      • Also, the right to vote cannot be considered a fundamental right. So, the denial of the right to vote for prisoners is not a violation of Article 21 and Article 14 of the Indian constitution.
      • In another case, the petitioner demanded the quashing of Section 62(5) of the RPA on the grounds that it is violative of the basic structure of the Indian constitution.
          • In this case, the SC held that the right to vote is neither a constitutional right nor a fundamental right, but is a statutory right and can be limited by statute.
          • Please note that, Supreme Court, in People’s Union for Civil Liberties (PUCL) vs. Union of India (2003), had held that the Right to Vote is a constitutional right.
  • Practices elsewhere
      • According to a BBC report, 18 European countries (such as Slovenia, Ireland) give its prisoners the Right to Vote.
      • Whereas, there are also some countries (such as Italy, United States) in which the citizen loses their Right to Vote even when they are released from the prisons.


Way ahead

Section 62(5) of the RPA is based on the premise that

  • What kind of choices a prisoner would make for the betterment of society if they were a defaulter at upholding the rules and norms of the law?
  • What kind of representative can you expect a murderer, rapist or thief to choose?
  • As a result, amending Section 62(5) of the RPA requires careful consideration.