The Kerala High Court, in a short order in November, had dismissed a public interest litigation seeking to segregate votes of residents from a mental health rehabilitation centre. The single-judge bench of Justice P.V. Kunhikrishnan held that a person cannot be excluded from the electoral roll even if he/she is a resident of a mental health facility. The court rightly pointed out that exclusion can only occur if the person is declared of “unsound mind” by a court, and not otherwise as specified under the state electoral law.

While the judgment rightly protected the electoral rights of individuals with mental disabilities, it was limited in its jurisprudence assessment of the political rights of persons with disabilities. Three interconnected failures of our constitutional and legal system are underlined in this context.

Articles 102(1)(c), 191(1)(c), and 326 of the Constitution reference ‘unsoundness of mind’ as grounds for disqualification from holding office or voting, yet provide no definition whatsoever. This is not an oversight but a deliberate constitutional silence that has persisted since the founding debates. This constitutional ambiguity becomes particularly stark when compared to how other legal domains handle mental capacity. Section 12 of the Indian Contract Act provides that a person is of sound mind for contracting if he/she can understand the agreement and form rational judgment about its effects, while the Hindu Marriage Act, 1955 distinguishes between incapacity to consent and mental disorders rendering one unfit for marriage. Such clarity is absent in electoral laws.

The second failure emerges from the courts themselves. Despite decades of electoral litigation, Indian courts have consistently declined to provide a substantive definition of ‘unsound mind’ in the context of voting. The Kerala High Court’s judgment, while protecting the immediate rights at stake, perpetuated this pattern by focusing on procedural requirements rather than addressing the definitional void. This judicial restraint stands in stark contrast to the courts’ willingness to define capacity in other contexts.

The third dimension of failure involves well-intentioned but incomplete legislative reforms. The Mental Healthcare Act, 2017 represents a progressive step forward, defining mental illness as substantial impairment of thinking, mood, perception, orientation or memory that grossly limits judgment and behaviour. The Rights of Persons with Disabilities Act, 2016 expanded recognition from seven to twenty-one disability categories and adopted a biopsychosocial model aligned with the UN Convention on the Rights of Persons with Disabilities. The National Trust Act, 1999 provides mechanisms for legal guardianship for persons with autism, cerebral palsy, intellectual disability and multiple disabilities through Local Level Committees. However, these three legislative efforts share a common limitation: they attempt to address capacity and disability rights but fail to resolve the question of electoral capacity specifically. The result is a patchwork where progressive principles coexist with undefined constitutional exceptions.

Addressing this multifaceted failure requires coordinated action across three fronts.

First, Parliament must amend Article 326 or enact comprehensive electoral legislation that provides a clear, functional definition of electoral incapacity. This definition must be narrow, evidence-based, and directly related to the cognitive abilities required for voting.

Second, any assessment of electoral incapacity should ensure independent legal representation, high evidentiary standards, the right to present and challenge evidence, periodic reassessment, and the right to appeal.

Third, courts should develop a jurisprudence that harmonises voting rights with disability rights, draws upon international human rights standards, and provides clear tests for lower courts to apply.

Shashank Pandey is a lawyer and the founder of Politics and Disability Forum