Voting rights of undertrials and convicts

Mains Paper 2 : Indian Constitution - historical underpinnings, evolution, features, amendments, significant provisions and basic structure |

From UPSC perspective, the following things are important :

Prelims level : Article 32, 326

Mains level : Voting rights of Prisoners

The Supreme Court is hearing a plea questioning an electoral law which denies undertrials and convicts their right to vote.
The petition has been moved under Article 32 of the Indian Constitution.

Voting rights of Prisoners

Section 62(5) of the RP Act of 1951 mandates that “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”.
The provisions however exempt a person held under preventive detention from this rigor.

Invokes violation of FR

The petition highlights how the Section sees both an under-trial and a convicted person equally. The former’s guilt is yet to be proved in a court.
A person is innocent until proven guilty by law. Despite this, it denies an under-trial the right to vote but allows a detainee the same. However, a person out on bail is allowed to cast his vote.
The plea argued that the provision violates the rights to equality, vote (Article 326) and is arbitrary. It is not a reasonable restriction.

Article 32 of the Indian Constitution

The right to move the SC by appropriate proceedings for the enforcement of the Fundamental Rights is guaranteed under this article.
The SC shall have power to issue directions or orders or writs any of the FRs.
Parliament can empower any other court to issue directions, orders and writs of all kinds (for HC, under 226).
The right to move the Supreme Court shall not be suspended except by President during a national emergency (Article 359).
Supreme Court has been vested with the powers for to provide a remedy for the protection of the FRs.
Only FRs can be enforced under Article 32 and not any other like non-fundamental constitutional rights, statutory rights, customary rights etc.

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