Voting Rights of Prisoners: Plea in SC challenges Section 62(5) of Representation of People Act

A petition has been filed in Supreme Court challenging the vires of Section 62(5) of the Representation of People Act, 1951 (RP Act). The said provision prohibits a person confined in a prison from casting her vote..The Public Interest Litigation (PIL) petition has been filed by one Aditya Prasanna Bhattacharya, a third-year law student from the National Law School of India University, Bangalore..The petitioner appears to have piqued the interest of the Bench as it sought more details about the petitioner and reasons for filing the PIL..Section 62(5) of RP Act deprives any person confined to a prison of the right to vote at any election. The provision reads:.“No person shall vote at any election is 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 points out that the wording of the section uses “confinement” as the yardstick thereby creating several anomalies..In addition to convicts who have been sentenced to a particular period of imprisonment, even under-trials, whose innocence or guilt has not been conclusively determined, are deprived of their right to vote, as they too are confined in prison, although they have not been sentenced to imprisonment..However, a convict who has been imprisoned as part of her sentence can still cast her vote if she is released on bail. This is because such a person is not per se confined in prison, the petition states..Further, a person who has been detained in civil prison is also deprived of her right to vote. This is the result of the overly broad language in the provision, which uses ‘confinement’ in the context of a “sentence of imprisonment…or otherwise”..The provision operates in the nature of a blanket ban, as it lacks any kind of reasonable classification based on the nature of the crime committed or the duration of the sentence imposed. This lack of classification is anathema to the fundamental right to equality under Article 14, the petition contends..Further, the petition also places reliance on the judgment in Shayara Bano v Union of India [(2017) 9 SCC 1] wherein the Supreme Court reaffirmed the doctrine of arbitrariness as the litmus test to determine a violation of Article 14. Since Section 62(5) disenfranchises any person confined in a prison in a manner that is arbitrary, it hits Article 14..The proviso to the provision carves out an exception for detenues, because such persons cannot be said to have committed any crime yet. If this is the case, then this rationale should also apply to under-trials and those detained in civil prisons, as even they cannot be said to be guilty of a crime, the petition states..The petitioner has also raised violation of Article 326 of the Constitution submitting that right to vote is a Constitutional right under Article 326 of the Constitution, as was held by the Supreme Court in People’s Union for Civil Liberties (PUCL) v Union of India [(2003) 4 SCC 399] and Rajbala v State of Haryana [(2016) 2 SCC 445]..It is the petitioner’s submission that any curtailment of such a right must be based upon permissible restrictions found within the Constitution itself, and in the absence of any such restrictions, the curtailment in question is ultra vires the Constitution..When the matter came up for hearing yesterday, advocate Zoheb Hossain, appearing for the petitioner argued that an earlier decision of the Court in Anukul Chandra Pradhan v Union of India which had upheld the vires of Section 62(5) was incorrect. It did not consider Article 326. Moreover, after the decision in Shayara Bano, even legislation can be struck down on the ground of arbitrariness, submitted Hossain..Hossain also submitted that almost 70 percent of prison inmates are undertrials and the provision disenfranchises people who have not yet been found guilty effectively taking away the fruits of ‘presumption of innocence’..The Bench of Chief Justice of India, Ranjan Gogoi and Justice Sanjiv Khanna sought more details about the petitioner and why he has chosen to file a PIL on this subject under Article 32. Directing the petitioner to file an affidavit in this regard, the Court passed the following order:.“Before we entertain this petition under Article 32, filed as a public interest litigation, we would like to know more about the petitioner; his interest in the subject matter and why he has picked up this particular cause to be raised in the Court and that too by an Article 32 petition.”.The Court has listed the matter for hearing after two weeks..Read the Order: