As voting for the 18th Lok Sabha is underway, over four lakh undertrials held in different prisons across the country have been barred from exercising their franchise due to a sweeping ban under the law.
On the other hand, ‘Waris Punjab De’ chief Amritpal Singh and Abdul Rashid Sheikh aka Engineer Rashid, the leader of the Awami Ittehad Party, are set to run for election while confined in Dibrugarh Jail and Tihar Jail, respectively. Even convicts serving sentences under two years are allowed to contest elections from prison.
Legal experts are of the view that if certain categories of prisoners can contest elections, undertrials languishing in jails should be given the right to cast their vote.
Section 62(5) of The Representation of the People Act says no person can vote in any election if confined in prison whether as a convict or undertrial.
As per National Crime Records Bureau (NCRB), in 2022 there were 4,34,302 undertrials across jails in India, comprising 76% of the total jail population of 5,73,220.
“While undertrials are deprived of many rights, the right of voting is being denied largely because of the Election Commission of India’s (EC) administrative convenience,” constitutional law expert and senior advocate Sanjay Hegde told The Hindu.
Mr. Hedge said if the EC can allow postal ballots for certain categories of voters such as persons with disabilities (PwD) and senior citizens aged 85 and above, there is no reason why the rule can’t be amended. “It can be addressed through the option of postal ballot.”
Virag Gupta, another constitutional law expert, questioned the logic behind barring undertrials from voting. “It lacks reasonable classification based on the nature of the crime or duration of the sentence, which is anathema to the right to equality envisaged under Article 14 of the Constitution,” he said, citing the UN’s Universal Declaration of Human Rights that advocates universal voting right irrespective of the status of incarceration.
Security threat
An official at Tihar Jail, where over 90% of the inmates are undertrials, sought to draw a distinction between an elector and a poll candidate. “Spaces designated for nomination are secured areas. But our jails have a mixed population, including high-risk prisoners like terrorists, gangsters, and those accused of heinous crimes,” the official said.
While allowing undertrials to go out and vote is a serious safety concern, even booths in prison are a security threat and will necessitate the deployment of both police and paramilitary forces, the official said.
