Legal Status of Right to Vote in India:

Upsc Relevance– prelims-Article 326, RPA 1950/1951, statutory vs. constitutional rights Mains-GS Paper 2-Electoral reforms, democratic institutions, SC judgments. GS Paper 4-Citizen’s duties, ethical governance

Why in News?

The Supreme Court of India is currently examining petitions related to the Special Intensive Revision (SIR) of electoral rolls in Bihar. During the hearings, the legal status of the right to vote has come under scrutiny once again, reigniting the debate on whether it is a fundamental, constitutional, or merely a statutory right.

Background

The right to vote in India, available to every citizen above 18 years under Article 326 of the Constitution, is often described as the cornerstone of Indian democracy. However, legal ambiguity and socio-economic exclusion reveal that while the right exists on paper, it often fails in practice for many.

Understanding the Various Types of Rights in India

Before delving into the legal status of the Right to Vote, it is essential to understand the different categories of rights recognized in Indian jurisprudence. These rights vary based on their origin, enforceability, and scope.

1. Natural Rights: These are inherent and inalienable rights that are considered to be granted by nature or reason, not by any government or law.
Examples:

• Right to life
  • Right to liberty

Legal Status in India:

• Indian courts may interpret a natural right as being part of a fundamental right, thereby giving it constitutional protection.
  • However, natural rights are not directly enforceable by courts unless they are recognized within the legal or constitutional framework.

2. Fundamental Rights

• Constitutional Basis: Enshrined in Part III of the Indian Constitution.
• Purpose:
  
  
  • To uphold equality, liberty, and dignity of individuals.
  • To restrict the arbitrary powers of the State.
    
    
• Examples:
  
  
  • Right to Equality (Article 14)
  • Right to Freedom of Speech (Article 19)
  • Right to Life and Personal Liberty (Article 21)
    
    
• Enforceability:
  • Directly enforceable in the Supreme Court under Article 32.
  • Also enforceable in High Courts under Article 226.

3. Constitutional Rights

Rights that are enshrined in the Constitution but outside Part III (i.e., not classified as Fundamental Rights).

• Examples:
  
  
  • Right to Property (Article 300A)
  • Right to Free Trade and Commerce (Article 301)
  • No taxation without authority of law (Article 265)
• Nature:
  • These rights are derivative rights, operationalized through Union or State legislations.
    
    
• Enforceability:
  • Can be enforced through High Courts under Article 226 or by following procedures laid out in the enabling law.

4. Statutory (Legal) Rights

Rights that arise from laws passed by Parliament or State Legislatures.

• Examples:
  • Right to Work – under the MGNREG Act
  • Forest Rights – under the Forest Rights Act
  • Right to Food Security – under the National Food Security Act
• Nature:
  
  
  • These are not constitutionally guaranteed, and can be amended or repealed by the legislature.
• Enforceability:
  
  
  • Enforceable in the relevant courts as per the procedures mentioned in the respective laws.

Legal Framework Governing Right to Vote

1. Constitutional Provision: Article 326

Article 326 provides for universal adult suffrage, mandating that every citizen above 18 years of age who is not otherwise disqualified has the right to be registered as a voter.

2. Statutory Backing: Representation of the People Acts

• Representation of the People Act, 1950: Deals with the preparation and revision of electoral rolls.Section 16disqualifies non-citizens, while Section 19 mandates age and ordinary residence.
  
  
• Representation of the People Act, 1951: Section 62 grants the actual right to vote to those whose names appear on electoral rolls but restricts voting for those disqualified or in prison.

Judicial Interpretations: A Tug-of-War on the Right to Vote

India’s legal understanding of the right to vote has evolved significantly. While early Supreme Court rulings treated it as merely a statutory right, later judgments hinted at its elevation to a constitutional, and possibly even fundamental, right.

Let’s understand this evolution through key judicial decisions:

1.Voting as a Statutory Right

Key Position: The right to vote comes from legislation — not directly from the Constitution.

N.P. Ponnuswami v. Returning Officer (1952)

• The Supreme Court held that voting is not a fundamental right, but a right granted by statute (specifically, the Representation of the People Act, 1951).
• It clarified that Article 329 bars judicial interference in electoral matters before the election process concludes.

Jyoti Basu v. Debi Ghosal (1982)

• Reiterated that voting and contesting elections are purely statutory rights, not constitutional or fundamental.
• The Court said: “A right to vote or stand as a candidate is not a civil right but a right created by a statute.”

Kuldip Nayar v. Union of India (2006)

• The SC upheld the amendment allowing open voting in Rajya Sabha elections, reinforcing that the act of voting is governed by statutory rules.
• Again confirmed the non-fundamental nature of voting rights.

2.Voting as a Constitutional Right

Emerging View: While voting may not be fundamental, it is rooted in the Constitution via Article 326, which mandates elections based on universal adult suffrage.

PUCL v. Union of India (2003)

• Introduced the concept of “NOTA (None of the Above)” to strengthen electoral freedom.
• Justice P.V. Reddy opined that although voting is statutory, the freedom of voting is protected under the Constitution.
• Suggested that voting is at least a constitutional right, ensuring free and fair elections.

Raj Bala v. State of Haryana (2015)

• The Court supported the PUCL view, stating that Article 326, which ensures adult suffrage, gives constitutional status to voting.
• Held that free and fair elections are essential for democracy, thereby linking voting to constitutional principles.

3.Voting as a Fundamental Right? — The Contention

Controversial View: Some argue that voting should be recognized as a fundamental right, especially as an extension of freedom of expression.

Anoop Baranwal v. Union of India (2023)

• The case focused on appointment of Election Commissioners but reignited the debate on voting rights.
• Majority Opinion: Maintained the traditional stance — right to vote is a statutory right under the Representation of the People Act, 1951.

Justice Ajay Rastogi’s Dissenting Opinion:

• Took a bold stand: Argued that voting is a form of free speech, protected under Article 19(1)(a).
• Emphasized that electoral participation is central to democracy, part of the basic structure doctrine.
• If accepted, this view could elevate voting to the status of a fundamental right.

Challenges in Elevating Voting to a Constitutional or Fundamental Right

1. Conflict with Parliamentary Supremacy: Fundamental rights restrict legislative powers; making voting fundamental may limit Parliament’s flexibility.
2. Judicial Enforcement Complexity: Election matters often require speedy remedies. Making voting a fundamental right may clog courts with election-related PILs.
3. Operational Practicality: Making it enforceable under Article 32 requires defining remedies and liabilities in case of wrongful disenfranchisement.

Way Forward

1. Constitutional Clarity: Parliament or the Supreme Court should clearly define the legal status of the right to vote to avoid ambiguity.
2. Strengthening Electoral Institutions: Empower the Election Commission of India (ECI) with autonomy and resources.
3. Voter Awareness Campaigns: Especially targeting rural and marginalized communities.
4. Technology and Transparency: Using AI and blockchain in electoral roll verification and electronic voting for enhanced reliability.
5. Consider Fundamental Status: Given its link with Article 19(1)(a) and democratic participation, voting may eventually merit fundamental right status.

Conclusion

The right to vote is not merely a legal privilege but a democratic tool for citizen empowerment. While it is currently a statutory right, its philosophical and functional importance aligns it closer to constitutional and even fundamental values. As India evolves as a mature democracy, the legal framework must keep pace with democratic expectations to ensure every citizen’s vote truly counts.

Upsc prelims pyq Q. With reference to the provisions made under the Representation of the People Act, 1951, consider the following statements: (UPSC Prelims 2017) A person convicted of a criminal offence and sentenced to imprisonment for five years is permanently disqualified from contesting elections. There is no provision for appeal against the decision of the Returning Officer rejecting the nomination paper of a candidate. Which of the statements given above is/are correct?  (A) 1 only  (B) 2 only  (C) Both 1 and 2  (D) Neither 1 nor 2 Ans-(D) Mains practice question. UPSC Mains Practice Questions Q1..Right to vote in India is a statutory right derived from constitutional principles. Critically examine in the context of recent judicial debates. Q2.Discuss the implications of treating the right to vote as a statutory right rather than a fundamental or constitutional right in a democracy.

SOURCE- THE HINDU

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