The Delhi High Court has issued notice in a Public Interest Litigation filed by three law students challenging the constitutionality of section 62(5) of Representation of People Act, 1951, which deprives prisoners their right to vote.
Praveen Kumar Chaudhary, Atul Kumar Dubey and Prerna Singh, Students of B.A LL.B. (H,) 4th Year, Galgotias University, Greater Noida, Uttar Pradesh, have approached the High Court contending that blanket ban on right to vote of prisoners is violation of the spirit and soul enshrined in the Constitution of India and also to the basic principle of Equality. They contend that the denial of voting rights will ostracize the prisoners from mainstream political decision making of world's largest democracy.
They also seek a direction from the Court to provide facilities and amenities to prisoners to cast their vote from jail premises itself.
The main challenge is against Section 62(5) of the Representation of People Act which reads: "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 vires of this provision is challenged on the following grounds:
Section 62(5) of Representation of the People Act, 1951 violates the concept of equality, expression, hence, in breach of the basic structure of the ConstitutionFirst proviso of Section 62(5) provides voting rights to person detained under any preventive detention law for the time being in force but sub section (5) of Section 62 denies a person under prison to cast their vote. Thus this is an overwhelming violation of the basic feature of equality enshrined in Article 14 of the Constitution. The expression "or otherwise" in sub-section (5) of Section 62 denies voting right even to undertrials and other persons detained in a prison for any reason, including the reason of inability to furnish bail. The restriction applies to a person in lawful custody of the police which would include a person detained during investigation before a chargesheet has been filed against him. On the other hand, a person convicted and sentenced to imprisonment but released on bail is permitted to vote. This is manifestly arbitrary and unreasonable classification carved out among the person in prison vis-à-vis person detained under preventive detention law and discrimination and violate Article 14 of Constitution of India.The prisoner has all the fundamental rights and other legal rights available to a free person, save those which are incapable of enjoyment by reason of incarceration.Thus prisoners bereft of right to vote have deprived them from broader fundamental duties enshrined under Article 51A of our Constitution of India.