Written by Shiny Agnus,
Intern-Lex Lumen Research Journal,
June 2025
In the world’s largest democracy, millions await trial behind bars, presumed to be innocent, yet stripped of the very right which defines them as citizens: the right to vote. When stigma and financial incapacity strip away a citizen’s voice, does democracy not begin to crumble?
UNDER-TRIALS IN THE CRIMINAL JUSTICE SYSTEM
Under-trials involve those who are held in judicial custody while awaiting trial or the conclusion of legal proceedings against them. Meant to be a temporary position before conviction (declaring one to be guilty of the crime) or acquittal (declaring one as innocent), this concept has now devolved into a state of permanence that is threatening the constitutional and fundamental rights, including the right to life, right to speedy trial and the right to vote of Indian citizens nationwide. It was revealed by the Prison Statistics India 2022 report[1], that out of the total prison population in India, 75.8% constitute under-trials. This report also highlighted the acute rise in the number of under-trials from 66% of prisoners in 2012 to 76% in 2022. The sharp increase was majorly observed during the pandemic period, when judicial backlog became more pervasive.
The Supreme Court’s Centre for Research and Planning, stated that prisons in India were operating at a occupancy of 131% housing 5,73,220 inmates against a capacity of 4,36,266[2], bringing to light the overburdened prison system. This burden is largely due to under-trials as out of the 5,73,220 inmates, 4,34,302 were found to be under-trials. The principle of “Justice delayed is justice denied”, rings in every ear as the count of under-trials only keeps increasing, burdening both the courts and prisons while punishing and taking away the rights of Indian citizens who are not yet declared guilty.
VOTING RIGHTS AND INDIA’S INVISIBLE VOTERS BEHIND BARS
Section 62(5) of the Representation of the People Act, 1951 prohibits any individual who is confined in prison from voting in elections, whether they are convicted or awaiting trial by stating that:
“A person confined in a prison, under a sentence of imprisonment or transportation, or in the lawful custody of the police, shall not be allowed to vote at any election.”[3]
It is important to note that, although prohibited from the act of voting, those who have their names in the electoral roll do not cease to be electors. This provision does not apply to those who are subjected to preventive detention. In Kuldip Nayar v. Union of India & Ors.[4], the Supreme Court held that free and fair elections are a part of the basic structure of the constitution. However, the court drew a salient distinction that the right to vote is a constitutional right rather than a fundamental right, which subjects it to the regulations under the Representation of the People Act, 1951. Thus, upholding the provision, the court stated that its primary aim was to keep “persons with criminal backgrounds away from the election scene.”.
Another point to note, is that convicts out on parole are eligible to vote. This raises a question, does this prohibition truly wish to protect elections from persons with criminal records or does it merely further the stigma around inmates, whether or not they are found to be guilty of the crime they have been accused of committing, destroying the chief principle of our justice system: “innocent until proven guilty.”?
GLOBAL PERSPECTIVE AND THE LEGAL FRAMEWORKS ACROSS COUNTRIES
The Universal Declaration of Human Rights, although not a treaty in itself, encapsulates the customary international law and therefore has binding status. It states that:
“Everyone has the right to take part in the government of his country, directly or through freely chosen representatives”[5]
In a survey conducted by Penal Reform International, the legal frameworks surrounding prisoners’ right to vote were analyzed in 76 countries including Australia, Canada, Peru, India, Brazil, China and Norway. The study found that in majority of the jurisdictions, pre-trial detainees or under-trials were allowed to vote, yet these are not always paired with necessary facilities. For instance, in Peru, pre-trial detainees legally do have the right to vote, but they are not able to exercise this right in practice as there are no voting facilities in prison[6].
Countries such as Australia, Germany, France, Norway and Portugal have recognized the need for progressive criminal justice reforms and have paved the way for a more flexible approach. For instance, in Australia, prisoners who are serving sentences of three years or less can vote by mail.[7] In Germany, a prohibition is placed on inmates voting only if they are found to be guilty of committing a crime targeting the State or democratic order.
Although prisoners in Canada are allowed to vote by mail or within the prison, three provinces in Canada have elected a complete ban on inmate voting[8]. However, in Sauvé v. Canada, the Supreme Court of Canada held that “Denying inmates the right to vote […] removes a route to social development and undermines correctional law and policy directed towards rehabilitation and integration”[9]. Thus, the recurring stance in countries worldwide, is the lack of infrastructure to enable inmate voting although the judiciary shows constant support to uphold principles of democracy.
PRESUMED INNOCENT, TREATED GUILTY
Under-trials in India are stuck at the crossroads of freedom and imprisonment for crimes they may not have even committed. The devastating fact is that most of these under-trials end up languishing in jail for longer than their sentences would have been if convicted. The delay in the justice system causes serious injuries to such persons, be it psychological, social or in some cases economical. The marginalized sections of society suffer the most at the hands of such delay, as they lack the financial resources and access to proper legal representation to pay their way out of imprisonment and are left to spend years waiting for never-ending trials to conclude. When this serious violation of fundamental rights is paired with the violation of the constitutional right to vote, the harm caused is greater than the harm meant to be avoided by such restrictions.
SILENT DISENFRANCHISEMENT OF UNDER-TRIALS: THE LEGAL VOID
The lack of clarity and gaps give rise to certain concerns posed when allowing under-trials to vote. These were clearly laid out in the case of Anukul Chandra Pradhan v. Union of India[10] , where the apex court held that a resource crunch would arise during elections due to the requirement for adequate infrastructure and police deployment for security, as also witnessed in other countries in the world. It also noted that individuals in prison due to their conduct cannot claim equal freedom of movement, speech, and expression. This prohibition is necessary to keep the election scene free of criminal activities such as voter frauds and questions of integrity. Thus, the purity and orderly conduct of elections is safeguarded by excluding prisoners altogether.
Courts also assume that allowing inmates to vote would disrupt the electoral process or lead to misuse of political elements, thus aiming for disenfranchisement without a strong legal basis. The legislative inaction surrounding Section 62(5) of the RPA despite criticism and evolving human rights norms, has caused continued exclusion. There is a lack of clear distinctions between under-trials and convicts, rooted in the principle “innocent until proven guilty.” These factors have created a persisting legal void which needs to be addressed and modified.
REPAIRING THE VACUUM: SUGGESTIONS AND RECOMMENDATIONS
As we move towards a more forward-thinking criminal system, with the enactment of Bharatiya Nyaya Sanhita in 2023, a call for recognition of the long neglected yet majority population of prisoners, the under trials, must be taken into serious consideration. With under-trials being allowed to contest in elections, under Section 8(3) of Representation of the People Act, 1951[11], there seems to be no reasonable reason for withholding them from voting.
The enfranchisement of under-trial prisoners in India can be done in the following ways:
- Under-trial prisoners must be allowed to vote through postal or special facilities within the prison. This would greatly reduce the burden of insufficient resources by ensuring security and avoiding transportation costs.
- The Election Commission must take up a more active role rather than staying a passive player, by making special registers for prison voters.
- The principle of “innocent until proven guilty” must be upheld strongly by spreading awareness and reducing stigma surrounding inmates and by educating people about under-trials and their rights.
- The accessibility to bail and the surety for the same must not be kept out of reach from those who lack the required financial resources.
With various modern democracies allowing their under-trial inmates to vote, it would be a fatal fault for the largest democracy in the world to be left behind. It is important to ensure a fair election procedure which leaves no innocent citizen behind.
“The universality of the franchise is important not only for nationhood and democracy. The vote of each and every citizen is a badge of dignity and personhood.”[12]
[1] National Crime Records Bureau (Ministry of Home Affairs, Govt of India), Prison Statistics India 2022 (Dec. 2023).
[2] Supreme Court of India, Centre for Research & Planning, Prisons in India: Mapping Prison Manuals and Measures for Reformation and Decongestion 4 (Oct. 2024).
[3] Representation of the People Act, No. 43 of 1951, § 62(5).
[4] Kuldip Nayar v. Union of India, (2006) 7 S.C.C. 1 (India).
[5] G.A. Res. 217 (III) A, Universal Declaration of Human Rights (Dec. 10, 1948), https://www.un.org/en/universal-declaration-human-rights/.
[6] Allen & Overy LLP et al., The Right of Prisoners to Vote: A Global Overview, for Penal Reform Int’l (Mar. 2016), https://www.penalreform.org.
[7] Voting Rights Behind Bars: Addressing the Disenfranchisement of Undertrial Prisoners in India, Juris Centre (July 20, 2024), https://juriscentre.com/2024/07/20/voting-rights-behind-bars-addressing-the-disenfranchisement-of-undertrial-prisoners-in-india/.
[8] John Howard Soc’y of Alberta, Inmate Voting Rights (2000), https://johnhoward.ab.ca.
[9] Sauvé v. Canada (Chief Electoral Officer), [2002] 3 S.C.R. 519 (Can.).
[10] Anukul Chandra Pradhan v. Union of India, (1997) 6 S.C.C. 1 (India).
[11] Representation of the People Act, No. 43 of 1951, § 8(3).
[12] August v. Electoral Commission, 1999 (3) SA 1 (CC) at ¶17 (S. Afr.).
