Is there any constitutional provision that a person who is under jail custody is deprived of their right to vote whereas any accused has the right to contest any kind of election from jail custody.  There are quite large number of voters detained in several jails (near about 4 lakh) throughout the country during 16th Lok Sabha election in 2014.  What is your view?

G K Seal, Kazipara, Barasat, Kolkata

AS per the present law, any person who is in jail or in the “lawful custody” of the police is not eligible to vote in an election.  This includes both convicted prisoners and those who are undertrial prisoners.  These restrictions on the right to vote are provided for in Section 62 (5) of the Representation of the People Act.

Undertrial prisoners are those who are facing charges and are imprisoned but they have not been convicted.  In India, 68 percent of the prisoners in jail are undertrials.  They constitute nearly three lakh persons. Denying them the right to vote is depriving them of a constitutional right. 

Further, our legal system is based on the principle that a person is presumed to be “innocent” until proven guilty. Most of the undertrials languishing in prisons in India are coming from the poorer sections of the society who have no access to effective legal assistance and cannot get bail.  Moreover, the judicial system is notorious in India for its slow and tortuous process in which a case, takes often years to be decided. 

It is, therefore, unjust to deprive undertrial prisoners and those in police custody of their right to vote. 

Unfortunately, the Supreme Court upheld this unreasonable denial of franchise to the undertrials. In a case which challenged Section 62 (5) of the Representation of the People Act, the Supreme Court in a judgment in July 1997 held that it was reasonable to deny voting rights to convicted prisoners, undertrials and those in police custody.  The reason stated was that it is necessary to curb criminalisation of politics.  However, it needs to be pointed out that curbing of criminalisation of politics cannot be linked to innocent people who have not been convicted from being deprived of their  citizenship rights. 

The other argument against giving prisoners the right to vote is that the State will have to spend more resources and administrative efforts to enable the prisoners to exercise their voting rights.  This is also a baseless consideration. Undertrial prisoners can be given the right of postal ballots.  The Supreme Court had last year ordered e-voting rights for non resident Indians.  If this can be done for Indians abroad, why should not similar voting rights be extended to undertrial prisoners.

While undertrials were denied the right to vote, they were allowed to contest legislative elections while in jail.  This right was also sought to be taken away by the higher judiciary.

A judgment delivered by a two-member bench of the Supreme Court in July 2013, it was decreed that a person who is in jail or in police custody cannot contest elections to legislative bodies.  This was a drastic judgment which infringed on the democratic rights of citizens.  A person who is an undertrial prisoner who is not convicted of any offence or a person who is in police custody without having faced a trial and conviction was deprived the right to contest elections. The CPI(M) had criticised the judgment and called it a case of judicial overreach. 

To get over this Court judgment, the parliament adopted an amendment to the Representation of the People Act in September 2013, which restored the right to contest for those in jail under detention. With this, the right to contest an election for an undertrial was restored. But the right to vote does not exist. This anomaly should be rectified.

What is, therefore, required is an amendment to the law such as the RP Act which would confer the right to vote to undertrial prisoners and those in police custody.