DISENFRANCHISING THE INNOCENT? A CONSTITUTIONAL ANALYSIS OF UNDERTRIAL PRISONERS’ VOTING RIGHTS IN INDIA

Abstract

The right to vote sits at the heart of democratic participation and political equality in any constitutional democracy. In India, undertrial prisoners still can't cast their votes, thanks to Section 62(5) of the Representation of the People Act, 1951. This law bars anyone held in prison or lawful police custody from voting, even though undertrials are presumed innocent until proven guilty. That raises a real constitutional problem: Does stripping undertrial prisoners of their voting rights fit with the guarantees of equality, dignity, and democratic participation promised by Articles 14, 21, and 326 of the Indian Constitution? This article gets into the details, questioning whether this blanket ban is really justified. It digs into judicial interpretations, especially the logic behind Anukul Chandra Pradhan v. Union of India, and lays out how the current rules restrict democratic rights far too much, without properly weighing state interests against constitutional principles. Looking beyond India, the piece explores how countries like Canada, South Africa, the UK, and the US are thinking about prisoner voting, showing that global standards are shifting. The paper also highlights deeper problems in India’s criminal justice system—poverty-driven incarceration, endless undertrial detention—and argues that excluding undertrials from elections only worsens democratic marginalisation. It wraps up by suggesting reforms: amend Section 62(5), add postal ballot options, and urge courts to rethink total disenfranchisement. These steps would help Indian electoral law catch up with constitutional ideals of inclusion and political equality.