Right to Vote – Understanding Its Legal Status and Constitutional Evolution in India

Right to Vote Latest News

• The Supreme Court is hearing cases filed against the Special Intensive Revision (SIR) of electoral rolls in Bihar.

Introduction

• The Supreme Court of India is presently examining petitions related to the Special Intensive Revision (SIR) of electoral rolls in Bihar. 
• This has reignited an important legal question: What is the true legal status of the right to vote in India?
• Although the right to vote is fundamental to the functioning of a democracy, Indian jurisprudence has oscillated between categorising it as a constitutional right and a statutory one. 
• The debate has implications not just for electoral integrity but also for how citizen rights are interpreted and enforced.

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Classifying Rights in the Indian Legal Framework

• India recognises different classes of rights under its constitutional and legal regime:
  • Natural Rights: Inherent and inalienable, such as the right to life and liberty. While not directly enforceable, courts may interpret these through fundamental rights.
  • Fundamental Rights: Enshrined in Part III of the Constitution, they include rights such as freedom of speech, equality before the law, and protection from discrimination. These are enforceable under Article 32.
  • Constitutional Rights: Located outside Part III but within the Constitution, such as the right to property and trade. These are enforceable through Article 226 or relevant legal processes.
  • Statutory Rights: Derived from ordinary laws passed by Parliament or State legislatures, such as the right to work under MGNREGA or the right to food under the National Food Security Act.
• The status of the right to vote, though derived from the Constitution, has largely been interpreted as a statutory right, setting the stage for the ongoing debate.

Constitutional and Legal Provisions on Voting

• The Constitution of India, under Article 326, guarantees universal adult franchise, stating that every citizen aged 18 or above is entitled to vote, provided they are not disqualified under law. This mandate is operationalised through two key legislations:
• Representation of the People Act, 1950 (RP Act, 1950):
  • Section 16 disqualifies non-citizens from being enrolled in electoral rolls.
  • Section 19 requires voters to be ordinarily resident and aged 18 or more on the qualifying date.
• Representation of the People Act, 1951 (RP Act, 1951):
  • Section 62 allows voting for all enrolled individuals unless disqualified by law or imprisoned.
• These laws form the statutory framework for voting, leading to the view that the right to vote is not absolute but subject to legislative qualifications.

Judicial Interpretation Over the Years

• The status of the right to vote has been clarified, and contested, across several landmark judgments:
  • N.P. Ponnuswami (1952): The Supreme Court held that the right to vote is purely statutory.
  • Jyoti Basu (1982): Reaffirmed that voting is neither a fundamental nor a common law right, but a statutory one.
  • PUCL Case (2003): Justice P.V. Reddy observed that even if not fundamental, the right to vote could be considered a constitutional right.
  • Kuldip Nayar (2006): The Supreme Court reverted to viewing voting as a statutory right.
  • Raj Bala (2015): Recognised it as a constitutional right based on earlier PUCL interpretation.
  • Anoop Baranwal (2023): Majority opinion once again concluded that the right to vote is statutory.
• These oscillations reflect the court’s balancing act between textual interpretation and evolving democratic principles.

The Dissenting View and Future Possibility

• In the Anoop Baranwal case, one of the judges, in his dissent, presented a nuanced position. He argued that:
  • Voting is an expression of choice protected under Article 19(1)(a), freedom of speech and expression.
  • Free and fair elections are intrinsic to the basic structure of the Constitution.
  • Although shaped by statutory law, the origin of this right lies in Article 326 of the Constitution.
• His reasoning could lay the foundation for a future judicial reconsideration that may elevate voting to the status of a constitutional right, particularly as jurisprudence around electoral rights and democratic accountability deepens.

Implications of the Current Legal Status

• Statutory Nature: Being a statutory right means Parliament can impose reasonable restrictions, such as disqualifications or procedural changes.
• Limited Enforcement: The right cannot be enforced through Article 32 like fundamental rights; redressal is through regular legal channels.
• Need for Clarity: In an era of increasing voter suppression concerns, digital disenfranchisement, and electoral roll errors, the legal status of voting may impact how robustly the right is protected.

Source: TH