Delhi, where Chief Minister Arvind Kejriwal and his former ministers are currently in jail, is scheduled to vote in the sixth phase of Lok Sabha Elections on May 25, 2024. However, if they remain incarcerated on that day, they cannot exercise their voting rights. This is due to the absence of a provision for voting by prisoners in India, regardless of their conviction status.
“It will also depend on what the Supreme Court says on April 29. The top court will hear on April 29 the petitions filed by former Jharkhand Chief Minister Hemant Soren and Delhi Chief Minister Arvind Kejriwal against their arrests by the Enforcement Directorate (ED). These petitions are listed before the bench of Justices Sanjiv Khanna and Dipankar Datta,” reported by Hindustan Times.
In 2019 Lok Sabha Elections, Kejriwal cast his vote at a polling booth in civil lines area of Delhi.
Article 326 of the Constitution of India provides that voting right in elections to the Parliament or the assembly is based on adult suffrage.
“That is to say, every person who is a citizen of India and who is not less that eighteen years of age on such date as may be fixed in the behalf by or under any law made by the appropriate Legislature and is not otherwise disqualified under the Constitution or any law made by the appropriate Legislature on the ground of non-residence, unsoundness of mind, crime or corrupt or illegal practice, shall be entitled to be registered as a voter at any such election,” reads Article 326.
The Representation of the People Act, 1951 mentions who cannot vote. According to Section 62(5) of this law, no person is eligible to vote if he/she is confined in a prison or is in the lawful custody of the police.
“No person shall vote at any election if he is confined in a prison, whether under a sentence of imprisonment or transportation or otherwise, or is in the lawful custody of the police,” reads the section.
There are over five lakh undertrials, including Arvind Kejriwal, who cannot exercise their franchise. The law, however, doesn’t prohibit prisoners in preventive detention from voting.
The constitutionality of Section 62(5) of Representation of the People Act, 1951 has been challenged in the courts. In 2019, for example, the Delhi High Court reaffirmed that prisoners do not have a right to vote in the Praveen Kumar Chaudhary vs Election Commission of India case.
On May 4, 2024, the Supreme Court 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 said that the Supreme Court had already upheld Section 62(5) twice.
“The constitutional validity of the provision under Section 62(5) of the Representation of People Act, 1951 has been upheld by a two judge bench of this Court and later by a three judge bench of this Court. In view of these decisions we are not inclined to entertain the petition”, said the bench led by Chief Justice of India DY Chandrachud.
While those behind the bars cannot vote, they can, however, contest elections as per the law. There is no provision in the law that bars undertrials from contesting elections unless convicted. Even for convicted politicians, the disqualification is not more than 6 years post the expiry of the jail term.
As per the existing laws, if a person is convicted and sentenced to a jail term not less than two years, he/she stands disqualified automatically from contesting elections for six years from the date of release.
This rule is mentioned in Section 8 of the Representation of the People Act-1951, which deals with disqualification of politicians from assembly and Parliament, after being convicted.
“A person convicted of any offence and sentenced to imprisonment for not less than two years other than any offence referred to in sub-section (1) or sub-section (2) shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release,” reads the Section 8(3) in the Representation of the People Act, 1951.
There have been examples of people contesting, and winning elections from behind the bars. Recently, jailed pro-Khalistan leader Amritpal Singh, who is currently lodged in a jail in Assam, has expressed willingness to contest the Lok Sabha polls from Punjab’s Khadoor Sahib seat as an independent candidate.
Singh, chief of the ‘Waris Punjab De’ outfit, was arrested in April last year after being booked under the National Security Act (NSA).
There is a long list of jailed politicians winning elections in India. In the post-Emergency 1977 elections, socialist leader George Fernandes contested elections from Muzaffarpur in Bihar while he was still behind bars. Fernandes defeated the Congress candidate by around 3 lakh votes.
In 1996, don-turned-politician Mukhtar Ansari, who died last month, contested the Mau Assembly seat in Uttar Pradesh on a BSP ticket while he was in prison. Ansari won.