Prisoner’s right to vote

By Jagriti  thakur and Vanshika yadav)

Introduction – The constitution of India and representation of the people’s act provide fundamental system for election in our country. India is a democratic country and federalism is a important substance . Under constitutional provisions the chief election commissioner has an important role to play .   A prisoner can contest election from the jail while is under detention. It is however , ridiculous to state that prisoner cannot cast the vote. There are number of occasions where the people have contested election from the jail or some of them also succeeded and won elections

We know that the prisoner’s right to vote is  very valuable right of every prisoners. This system have till now no provision of compensation. To be paid and denying prisoners to cast the vote whee a prisoner to be found innocuous by the court at the end of the trial. Without a reasonable cause a prisoner has deprived his liberty provided money of as a compensation ,  according to the supreme court and the lowers . these facilities are only for the prisoners who needs has been deprived his or her liberty which are under of the trials.

In the modern democratic age sovereignty( where people are internally and externally free according to their decisions) is vested with people. Under of in this type of direct election there is low possibility of  election of every representatives but there is a very big possibility of competent or able representatives being elected under the method of this indirect election. The main of this is because the voters who elect the candidates are generally better than the common voters. They make use of their votes ,  The whole country is divided into equal territorial areas out of which the people elect their representatives too. This is simply that majority system is more prominent majority system is most popular of democratic states . Under the indirect method of election system a candidate who gets more votes than other candidate is declared elected.


Now this question is whether a person convicted  by a court or who remains in jail as a prisoner whether under trial or in police custody and is deprived of his rights of casting his vote could amount to violation of his fundamental rights given to him under article 14 , 9 and 21 of the constitution? Whether  such provisions should be declared ultra vires and void to the constitution? There is yet another question as provided under section 62(5) of the representation of the people’s act which states that the prisoners are supposed to surrender their right to vote under the said act but the persons who are detained under national security act entitled to cast their votes . Thus that is discriminatory provision.


The contention that a person , who is confined in the prison , whether under a sentence of imprisonment or transportation or otherwise or is in the a lawful custody of the police is not entitled to vote by virtue of section 62(5) of the representation of the people act 1951 and accordingly is not an “elector” and is therefore, not qualified to contest election to the house of people or the legislative assembly of a state because o fifth provision in section 4 and section 5 of the said act.


A right to vote is a statutory right. Persons convicted of the crime are kept away from election to the legislature , whether to state legislature or parliament and all other public elections. The law temporarily takes away the power of such persons to go any were neither election scene . To vote is a statutory  right. It is a privilege to vote but this privilege may be taken away . In the case CHIEF ELECTION  COMMISSIONER V JAN CHAUKIDAR  in the patna high court, the elector would not be qualified even if his name is on the electoral rolls . The name is not struck off, but qualification to be an elector and the privilege to vote when in the law custody of the police is taken away.

While affirming  the aforesaid judgment of the patna high court , the supreme court of India ruled that person who has no right to vote by the virtue of the provisions of the section 62(5) of the act, 1951 is not an elector and is is therefore , not qualified to contest the election to the house of people or the legislative assembly of state. It is submitted that once a person is not entitled to vote by virtue of any disqualification provided under the law and he/she the elector , is not also not entitled to contest election to the house of people /legislative assembly of a state.


There is no doubt that the criminalization of politics is matter of grave concern and debated throughout the country and all measures are being take to prevent it and to ensure crime free politics . No criminal should be allowed to contest election or to cast the vote . In view of this, the election commission has recommended that any person convicted by the court and sentenced for more than six months should be disqualified  from contesting election for six years . the election commission has also suggested a number of changes in the present representation of the people’s act to remove the lacunae that have provided even history shifters to contest election . The election commission has made herculean efforts to invoke a nationwide debate on the hot issue for preventing criminalization of politics by recommending that those who have been sentenced for imprisonment up to six months be barred from contesting election irrespective of the fact that their appeals are pending in higher courts .

According to the election Commissioner 40 members of the parliament and about 700 out of the 4,072 legislators in states assemblies have criminal records . This revelation had invited a hot discussion on this problem.

It is unfortunate to note that these M.P.’s and M.L.A ‘s having criminal records are sitting members in the current parliament and in the state assemblies respectively.

According to the election commission the new rules would be applicable to coming election is matter of some consolation . however the election commission has issued a directive that any person sentenced  by competent court under section 8 of the representation of the people act would be debarred from the contesting elections.

For  the first time in Rajya sabha ‘s election nomination form were required  to be submitted along with affidavits declaring that the candidate didn’t have criminal records.

Another issue is that of checking the limits of election expenses fixing a limit of rupee 50lakhs for the parliamentary constituencies and rs. 6 lakh for the assembly constituencies . However, election commission has suggested that the power of fixing the ceilings for election expenses in the case of larger or smaller constituencies should be vested with the election commission .

Another point of the controversy is regarding the politicians seeking entry to Rajya sabha by giving false declarations of their address and them getting their names enrolled in the electoral rolls of the state . Their problem can be solved provided the relevant laws are amended to entitle anybody to contest elections from the parliamentary constituency in the country so long as she or he is a lawful voter.

Here it is pertinent to mention that the reference measure without any legislative background are useless since the general orders do not specifically decide the fate of under trial prisoner . The election commission has a vital role to play in abolishing this kind of discrimination right to adult franchise which should be exercised by all the persons articles 14, 19 and 21 of the constitution deal with fundamental rights that a person should not be discriminated and every person should be assured of exercising all his rights . Under the constitution right to adult of franchise has been guaranteed to every citizen of India . Thus, it is a very unfortunate to note that our constitution has guaranteed the right to vote to the citizen of India but other subordinate authorities have curtailed the prisoner’s right to vote.

CONCLUSION–  At last we conclude that the right to vote is not an ancient right but it is true that all civilized society and democratic  countries have recognized the right to adult of franchise as a basic fundamental right and also as a human right . Under the present legal system a prisoner cannot exercise his right to vote but a prisoner can be a member of parliament or a member of legislative assembly or even a minister . Thus legal position of a prisoner has to be changed and impartiality removed.