Punishment, Citizenship, and the Right to Vote: A Democratic Contradiction
Introduction
Article 326 of the Indian Constitution guarantees the right to vote to every citizen above the age of eighteen years who is otherwise not disqualified by unsoundness, non-residence, or crime or illegal practice. The latter is codified within Section 62(5) of the Representation of People Act (the ‘Act’), which holds that any individual within the confines of a prison will be disentitled from their right to vote.
However, recent data indicates that a majority of persons within the confines of prison are yet to be convicted of a crime, and moreover, are often from less privileged or minority backgrounds. This begs the question of whether Section 62(5) should still be used as a hallmark of disqualification today, when all it would result in is a coup de grâce to an egalitarian democratic ideal.
Through this article, the authors attempt to use the praxis of democracy to rethink the continued validity of Section 62(5). Firstly, the paper analyses the structural shortcomings of the current disenfranchisement regime, focusing on its disproportionate impact on undertrials and minority communities, and the colonial logic embedded in its design. Secondly, it examines the reasoning adopted by the Supreme Court in Anukul Chandra Pradhan v. Union of India, where the Court upheld the provision on grounds of logistical constraint, self-inflicted disqualification, and electoral purity, each of which will be critiqued and refuted in a piecemeal manner. Revisiting this case is timely today given the rising conversations about criminal reform and the necessity of democratic participation. Lastly, the paper undertakes a theoretical reconstruction of the forfeiture model and demonstrates its incompatibility with contemporary democratic and penal philosophy, drawing from comparative jurisprudence and international human rights law.
Problems with the Present System
Section 62(5), albeit necessary to an extent to prevent corrupt practices such as misuse, voter fraud or coercion in the electoral process as embodied in the preamble of the act, suffers from a major structural fallacy. The provision presupposes that an individual within the confines of a prison is guilty. The section does not take into consideration the nature of one’s presence in prison, but instead bases disqualification solely on physical proximity to a prison.
Now, the problem that arises herein is that 70% of prison occupants are undertrials who are yet to be convicted of a crime. That is, these individuals are still legally innocent. By disenfranchising them, the provision allows incarceration alone to override the constitutional presumption of innocence under Article 21, a principle central to the democratic legitimacy of any exclusion from the franchise. The undertrials arrive at this circumstance because of their inability to pay for bail or court fines. Taking away their rights based on a flawed perception of protecting the electoral process (as elaborated below) overrides the cardinal tenet of finding one guilty only post-conviction. Further, the legislative intent behind not allowing an undertrial prisoner to vote, but allowing him to contest in the election, seems to selectively apply the presumption of innocence and the protective prong of the act. This thereby becomes antithetical to the supposed intent of the act.
Further, NCRB data indicates that two-thirds of the prisoners (undertrials and convicts) comprise the weaker sections of society. This situation is aggravated for certain religious minorities. For example, Muslims are disproportionately represented in prison records. That is, while Muslims constitute only 14% of the Indian populace, almost 20% of prisoners are Muslim. Further, 75% of Muslim prisoners are non-convicts or undertrials. In states such as Bihar, UP & Delhi, this rises to more than 80% of Muslim prisoners. A study conducted in 2013 found that a majority of these communities stated that the system was laden with discrimination, and that the executive would engulf them in malicious cases when they got out of their previous charge. On studying the over-representation of minorities, Irfan Ahmed in his article ‘Democracy in Jail,’ found (p.102) that while Hindus are not represented in proportion to their majority on a national level, ironically, in states where they are a minority, their proportion in jail is higher than their percentage of the population in those states. Similarly, in regions housing scheduled tribes and castes, their proportion was lower than in states where they constituted a negligible minority (p.101).
The paradox of Hindus being disproportionately represented in prisons in states where they constitute a minority reveals a framework of criminalisation by identity (p.13). In this method, while the legal system remains ‘neutral,’ the justice system is biased to socio-cultural perceptions. This reflects Foucault’s contingent nature of state power, which disciplines not based solely on inherent guilt but on a person’s failure to reach certain standards. Here, when the hegemonic identity shifts in a local context, those previously considered normative become deviant in the eyes of state machinery, as shown in the context of Hindus.
This reinforces the relative ‘hierarchy’ of classes in each region as certain groups are deliberately more harshly persecuted, and thus restricted from having the same starting point as other classes and inadvertently reinforcing the established hierarchy. Thus, the overrepresentation of minorities within prisons contributes to their continued socio-economic marginalisation and reinforces a cycle of exclusion, wherein state institutions themselves become agents of disenfranchisement.
Additionally, it is pertinent to note that this section was postulated on the Forfeiture Act of 1859, i.e., an Act brought forth by the British. As noted by Radhika Singh, criminal sections in British India were unfairly encapsulated with an excessive amount of discretion, allowing for harsh criminalisation based on social antecedents alone, rather than being based on achieving an equitable democratic ideal. While India may have somewhat progressed in this regard, Section 62(5) still encapsulates this colonial presupposition of guilt that was aimed at insulating the colonial state from democratic participation.
The present system reflects a retributive model of punishment, imposing penalties on prisoners through representatives they did not elect, and subjecting them to laws in whose making they had no role. As argued by Cormac Behan, these facets would disincentivise a prisoner to further obey the law. Further, as stated in Home Affairs v Nicro, the right to vote is used as a means of suppressing the marginalised and entrenching white supremacy. While this was found in the context of African history, it becomes pertinent for India to look at its own laws, considering its history. India houses a history of disenfranchisement laws being weaponized against dissenters and marginalised communities to suppress their collective political agency and empirical data indicating the significant suppression of minorities within its prisons.
As accurately stated by the Chief Justice of South Africa, the government is not entitled to disenfranchise prisoners in order to enhance its image and if a government uses the right to vote to enhance its public image, this is when the sanctity of ballot box is violated and insulted. Applying this to the Indian context, Ujjwal Singh has extensively written about how the post-colonial government maliciously uses ordinary criminal sanctions and harsh penal provisions such as the Unlawful Atrocities Prevention Act to assert its legitimacy and suppress dissent. Additionally, India often denies them the status of ‘political prisoners,’ thereby further delegitimising their causes and entrenching the majoritarian superiority by oppressing their voices. By disenfranchising populations that are more likely to challenge the status quo or support alternative political narratives, Section 62(5) thus creates an electoral landscape biased in favour of dominant power structures. As these arrests are made on arbitrary criminal sanctions, including harsh laws, it manufactures consent among the majoritarian and often not fully informed state. The prison, therefore, becomes a stage on which the state embellishes its image of power and sovereignty, orchestrated by external anxieties of power.
Should Prisoners be Given the Right to Vote?
The legislative logic of Section 62(5) is rooted in a particular construction of criminality; that incarceration marks a civic boundary beyond which democratic rights can no longer travel. The model sustaining this is one of forfeiture: a rights framework which rests on the doctrinal assumption that certain civic rights, including suffrage, are contingent upon lawful conduct and may be legitimately withdrawn as part of the penal response to criminal misconduct. However, the act of voting is not contingent upon moral standing or social conduct. It is tied to the status of citizenship and the normative expectation of equal inclusion in the political community. This was made evident in Hirst v. the United Kingdom, where the European Court of Human Rights held that blanket bans on prisoner voting failed to demonstrate any rational link between disenfranchisement and democratic integrity, and that participation in governance could not be forfeited on the basis of moral condemnation alone. Therefore, a framework that treats this right as forfeitable on custodial grounds misconstrues both the purpose of punishment and the architecture of democratic legitimacy.
In the Anukul Chandra Pradhan case, the Supreme Court endorsed the disenfranchisement of prisoners on three grounds: (i) loss of rights following incarceration, (ii) logistical complexity, and (iii) the need to protect electoral integrity from criminal influence. Yet each of these rationales is doctrinally incoherent and institutionally evasive. At the centre of this misalignment is a basic confusion between the regulation of liberty and the suspension of political membership. Penal theorists such as Antony Duff have argued that punishment, properly understood, assumes inclusion rather than exclusion. The criminal is not placed outside the community, but addressed by it; subject to its norms precisely because he remains part of its moral and political order. To punish, under this conception, is to communicate a violation and invite normative reintegration. Disenfranchisement, by contrast, communicates exile. It breaks the communicative contract of punishment and substitutes accountability with banishment. This has direct consequences for the theory of democratic legitimacy, as voting is not simply a mechanism for preference aggregation; it is the site at which the governed are rendered co-authors and members of the constitutional process. Exclusion from the franchise alters the structure of obligation. The individual continues to be bound by legal norms, taxation, penal regulation, and carceral discipline, but is denied the ability to participate in their formation.
The symmetry between obligation and authorship that defines democratic legitimacy is thus disrupted, and what remains is a class of persons regulated by law but denied voice within it. The South African Constitutional Court, in Minister of Home Affairs v NICRO, captured this disjuncture; the Court held that the State cannot suppress the political agency of prisoners merely to signal toughness on crime, and that the franchise is not a concession but an affirmation of membership in the constitutional order.
The disqualification becomes more problematic when applied indiscriminately to undertrials and convicts alike. Section 62(5) does not differentiate between legal statuses. It treats custody, rather than conviction, as the operative criterion. This vitiates the presumption of innocence. Legally innocent individuals are subjected to a form of disenfranchisement that assumes guilt, purely based on physical confinement. The logic of rights forfeiture is thereby extended to those who have not forfeited anything under law, a structural contradiction. Sauvé v Canada reiterates this very position, with the Canadian Supreme Court rejecting disenfranchisement as a permissible tool of moral condemnation, especially where its application lacked nuance or any demonstrable connection to civic rehabilitation or deterrence.
The damage is compounded by the demographic realities of incarceration. The Indian prison population is not a neutral subset of the citizenry. It is disproportionately composed of individuals from Scheduled Castes, Scheduled Tribes, religious minorities, and economically marginalised groups. Loïc Wacquant analyses how carceral institutions function as tools of socioeconomic sorting rather than neutral instruments of justice. Where incarceration correlates with structural disadvantage, disenfranchisement ceases to be a question of individual sanction and becomes a mechanism for political erasure. Entire communities, already underrepresented in formal politics, risk being rendered electorally invisible.
This renders the justification of administrative convenience or electoral purity institutionally hollow. The logistical argument collapses when placed against the Election Commission’s demonstrated capacity to enfranchise electorally dispersed or mobility-constrained populations. Service voters, including members of the armed forces, central paramilitary forces, and election duty staff, are accommodated via postal ballots under Rule 23 of the Conduct of Elections Rules, 1961. Persons with disabilities and electors above the age of eighty are permitted to vote from home under Rule 27A, operationalised through mobile polling teams. In the 2019 Lok Sabha elections, over 18 lakh service voters cast their ballots through such alternative mechanisms, according to official figures published by the Election Commission of India in its Status Paper on Service Voters. The Commission’s Accessible Elections initiative further institutionalised the use of assistive infrastructure, including transport to polling stations, Braille-enabled voting materials, and targeted outreach. Logistical burden, when selectively cited, ceases to operate as a principle and begins to function as a justification ex post facto for exclusion.
The third basis, grounded in a presumed moral threat posed by the incarcerated, bypasses the fact that the Indian electoral framework makes no categorical exclusion for individuals on appeal, compoundable offences, or regulatory violations. Political rights do not operate as rewards; they are the procedural expression of citizenship. The assumption that criminality contaminates democracy ignores the fact that the democratic ideal is tested by its inclusiveness, not preserved by its exclusions. What emerges from this architecture is a regime of exclusion that fails every test of proportionality, necessity, and coherence. The franchise is suspended without adjudicatory process, on the basis of status rather than conduct, and applied in ways that deepen existing structural inequalities. In a polity where universal adult franchise constitutes the very premise of democratic legitimacy, such exclusions raise structural concerns about whose citizenship the Constitution meaningfully recognises and protects.
Towards Reform
A constitutionally anchored reform of Section 62(5) of the Representation of the People Act is imperative to align India’s electoral framework with both democratic ideals and contemporary penal jurisprudence. First, a clear statutory distinction must be drawn between undertrials and convicts. In various jurisdictions, undertrials are granted the right to vote as compared to their convicted counterparts. Considering that India possesses a disproportionate number of undertrials, yet to be convicted, the reaffirmation of their right to vote, and their status as innocent, would be a good place to start.
The second and immediate practical step forward for convicted prisoners seems to be a graded disqualification mechanism replacing the current absolute bar. Drawing from models in France, Germany, and the UK post-Hirst, courts may be given discretionary powers to suspend voting rights, contingent upon the gravity of the offence and demonstrable threats to democratic integrity. This would shift the logic from punitive exclusion to proportionate assessment, allowing for judicially reviewable disenfranchisement orders based on specific conduct rather than mere custodial status. As argued earlier, incarceration patterns in the Indian context disproportionately reflect caste, class, and religious marginalisation; a blanket restriction renders the electoral process structurally exclusionary. Judicial disenfranchisement, while not a resolution to this embedded asymmetry, would at least reduce its breadth. It would permit exclusion only based on adjudicated conduct, rather than operating as a collateral consequence of incarceration itself. Though framed here as a transitional practical remedy and not a normative terminus, the eventual objective still remains the reinstatement of suffrage as a non-derogable incident of citizenship.
Conclusion
The Constituent Assembly Debates, while sparse on the issue of prisoner voting, are nevertheless clear on the penal philosophy that animates the constitutional text. Across interventions, especially those surrounding Articles 20 to 22, there was a tacit consensus that the carceral project was not to be one of civic erasure. The underlying structure of Indian criminal law was understood to be rehabilitative, not exclusionary. The State, having assumed a monopoly on punishment, was to exercise it within a framework that did not collapse citizenship into guilt. That structure has remained doctrinally stable. Prisoners are to retain all rights save those necessarily restricted by confinement. The denial of franchise, however, is not one of those and it appears not because it must, but because it can. That distinction matters because it reveals that the exclusion is not flowing from the internal logic of the Constitution, but from the external anxieties of power.
The continued enforcement of Section 62(5) in its current form is antithetical to India’s democratic commitments and the evolving global consensus on penal reform. The right to vote is not a reward for virtue but a fundamental expression of political membership. To exclude prisoners, particularly undertrials and those from historically marginalised groups, from electoral participation is to deepen their civic erasure and hollow out the egalitarian promise of universal adult franchise. A reimagined legal framework must restore the franchise not only as a legal entitlement but as a symbol of democratic inclusion and constitutional fidelity. Such an approach aligns with the constitutional promise of universal adult franchise as envisaged in India’s democratic project.
