The Election Commission of India has filed its reply in Delhi High Court in Praveen K Chaudhary & ors v Election Commision of India & ors., challenging the constitutionality of Section 62(5) of Representation of the People Act 1951 which deprives prisoners their Right to Vote. In the affidavit, the EC has said that it is settled law that the statutory right to vote does not extend to prisoners and the same does not merit consideration of the court.

Three law students – the petitioners in this case – seek voting rights for prisoners lodged in Tihar Jail, Mandolin Jail and Rohini jail as well as those who may be in the custody of the police or any other kind of custody or preventive detention be allowed to vote.

Australia, Canada, Ireland, New Zealand, and South Africa are among the few countries, according to the petitioners, which have granted the right to vote to their prisoners.

These student-petitioners of Galgotias University, Greater Noida, have invoked Article 51 of the Constitution which requires the State to endeavour to foster respect for international law and treaty obligations. Thus, they point out that Article 21 of the Universal Declaration of Human Rights (UDHR) provides for the equivalent free voting procedures and which shall be by universal and equal suffrage. Further, Article 3 of the UDHR provides an equal right of men and women to the enjoyment of all civil and political rights.

On an earlier occasion, former chief election commissioner T.S. Krishnamurthy was quoted saying, “One view is that if people with a criminal record can contest elections, then why can’t prisoners vote? It might be better to have a uniform policy towards both.”

As it was not supposed to be an adversarial litigation, the respondents including the EC, Law Ministry, Home Ministry, and the Director General of Prisons were largely expected to support the striking down of Section 62(5), to ensure justice to prisoners.

While courts can exercise inherent powers to enforce a fundamental right, a statutory right, like the right to vote, is subject to the statute wherein it arises. EC has based its conclusion on this principle. However, the contention of the petitioning students that, voting right is a species of freedom of expression, is yet to be adjudicated upon.

— India Legal Bureau