Supreme Court Rejects Challenge To Section 62(5) RP Act Which Denies Prisoners Right To Vote

The Supreme Court on Thursday refused to entertain a PIL challenging Section 62(5) of the Representation of the People Act, 1951 and seeking for right to vote for prisoners. The court noted that Section 62(5) had already been upheld by the Supreme Court on two separate occasions. In view of the same, the bench comprising CJI DY Chandrachud, Justice PS Narasimha, and Justice JB Pardiwala expressed its disinclination towards entertaining the petition. 

Section 62(5) provides that no person shall vote at any election if he is confined in a prison or is in the lawful custody of the police. The Apex Court had first dealt with the legality of Section 62(5) in 1983 in the judgement Mahendra Kumar Shastri v. Union Of India. The court found that the provision was reasonable, in public interest, and there was no arbitrariness or discrimination involved. Later, in 1997, in Anukul Chandra Pradhan v. Union Of India, reiterated its position and held that the right to vote was subject to the limitation imposed by the statute which can be exercised only in the manner provided by the statute; and that the challenge to any provision in the statute prescribing the nature of right to elect cannot be made with reference to a fundamental right in the Constitution. Taking into account the aforesaid judgements, the court declined to entertain the petition.

CJI DY Chandrachud remarked–

"In view of these judgements, why should we reopen the issue?"

Background

The petition submitted that using confinement in a prison as a yardstick to disenfranchise persons had several challenges such as depriving under-trials, whose innocence or guilt has not been conclusively determined, of their right to vote. As per the petition, this made Section 62(5) of the Representation of the People Act, 1951 disproportionate, unreasonable, and discriminatory. The petition added that due to the excessively broad language used by the provision, even those detained in civil prison were deprived of their right to vote. Thus, there was no reasonable classification based on the purpose of the imprisonment.

"The impugned 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 (unlike several other jurisdictions such as South Africa, United Kingdom, France, Germany, Greece, Canada et al). This lack of classification is anathema to the fundamental right to equality under Article 14," the petition argued.

Additionally, as per the petition, the right to vote was a constitutional right under Article 326 of the Constitution. As such, 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 was ultra vires the Constitution. The petition stated that–

"Confinement in a prison, which is the yardstick used by the impugned provision, is not one of the constitutionally permissible restrictions to the right to vote under Article 326."

Accordingly, the petition sought for the impugned provision to be read down in order to ensure that it conforms to the Constitution.

"If this is not possible, then the impugned provision must be struck down altogether for suffering from an incurable vice of unconstitutionality", the petition added.

Case Title: Aditya Prasanna Bhattacharya v. UoI And Ors. WP(C) Np. 462/2019

Citation : 2023 LiveLaw (SC) 407

Click here to read the judgment