Prisoner's Right to Vote and be Elected

Context (IE): Amritpal Singh, the jailed head of the pro-Khalistan outfit Waris Punjab de, announced his intention to contest the Lok Sabha elections from Punjab.
According to a report submitted to the court in April 2024, 4,472 criminal cases against MPs and MLAs are still pending.

Legal status of the right to vote and the right to be elected

Though free and fair elections have been placed on the highest constitutional pedestal, the SC has held that the rights to elect and be elected do not enjoy the same status.

It provides a series of restrictions on the right to vote.
Sct 62(5) effectively bars every individual who had criminal charges framed against them from casting their vote unless they have been released on bail or have been acquitted.

The rule violates the right to equality by denying voting rights to undertrials and those who are detained for being unable to furnish the bail amount while allowing those released on bail to vote.

The court rejected this argument on four grounds.
1. It reaffirmed that the right to vote was a statutory right and could be subject to statutory limitations.
2. The court held that there is a “resource crunch” as infrastructure would have to be provided and police would have to be deployed.
3. A person in prison because of their conduct “cannot claim equal freedom of movement, speech and expression”.
4. Restrictions on prisoners’ right to vote are reasonable as they are connected to keeping “persons with criminal background away from the election scene.”
This decision has been relied upon by both the SC (in 2023) and the Delhi HC (in 2020) in the recent past to dismiss pleas seeking voting rights for prisoners.

Free and fair elections are part of the IC’s’ basic structure’, and any laws or policies that violate this principle could be struck down.

The right to vote (or the right to elect as it was called) is “pure and simple, a statutory right”. This means that voting is not a fundamental right (FR) and can be repealed.
The same was held for the right to be elected by the Bench, ruling that laws enacted by Parliament could regulate both these statutory rights.

Section 8 of the Representation of People Act, 1951 (RP Act): A convicted individual will be barred from contesting elections to Parliament or state legislatures from the date of conviction, with an additional six-year disqualification upon release.
- This disqualification only kicks in once a person has been convicted and does not apply if they have only been charged with criminal offences.

Section 11 of the RPA: The Election Commission of India (ECI) is empowered to “remove” or “reduce” the period of disqualification.
Section 62 (5) of the RPA: An exception is provided for those in preventive detention.
SC, 2019: Once a conviction is stayed on appeal to a higher court, “the disqualification which operates as a consequence of the conviction cannot take or remain in effect”.