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Voting Right: Constitutional or Legal?

Is voting a Constitutional right or a Legal/Statutory right?

Is voting a Constitutional right or a Legal/Statutory right?

The answer to this question is not uninvolved. There is a lot of legal history that needs to be understood before coming to our final settlement on this matter. But first, we must have some basic knowledge about the right to vote. Our Constitution’s essential framework includes democracy. Having democratic rights means that every Indian has the right to participate or vote in government elections with certain conditions applied. The idea of Universal suffrage advocates that subject to a few minor exclusions, all adult residents have the right to vote, regardless of their status, income, gender, social standing, race, ethnicity, political opinion, or any other limitation.

Article 326 of the constitution

Article 326 is within Part XV of the constitution. Part XV reflects upon Article 324 to Article 329 which deals with the electoral system in our country. Article 326, which is popularly known as a universal adult franchise, promises the right to vote for Elections to the Lok Sabha and to the State Legislative Assemblies. To be an eligible voter as per article 326 an individual must only fulfill these three conditions:

  • He/She must be a citizen of India
  • He/She should be above the age of eighteen years
  • He/She is not disqualified under the constitution or any law made by the appropriate Legislature on the ground of non residence, unsoundness of mind, crime or corrupt or illegal practice

Till 1988 article 326 considered the voting age to be a minimum of 21. With the 61st amendment minimum voting age was lowered down to 18 years. While dealing with elections, the constitution very clearly states that the election commission of India (ECI) is responsible for superintendence, direction, control of the electoral process (as advocated by article 324 of the constitution). The scope of these terms is very wide, so to codify the administration process of free, fair, and regular elections the parliament has the power to make legislation. Using this power the parliament has passed legislation such as:

  1. Representation of the People Act, 1950
  2. Representation of the People Act, 1951
  3. Delimitation Commission Act of 1952

The Representation of the People Act, 1951

The Representation of the People Act, 1951 (RPA, 1951) is an act of the Indian Parliament that governs the election of members to the Houses of Parliament and the Legislature of each State, it also has provisions for refinement of contesting participants to attain the eligible members for those Houses as well as to address any difficulties or query that may arise with respect to:

  • notification of general elections
  • registration of parties
  • conduction of election
  • corrupt practices and electoral offences
  • free supply of certain material to candidates of recognized political parties
  • counting of votes
  • publication of election results and nominations
  • by-elections

This bill was introduced by Dr. B.R. Ambedkar. It basically deals with the actual administration of elections in India unlike the Representation of the People Act, 1950 which primarily talks about allocations of seats in the parliament and the state legislature, delimitation of constituencies, qualifications of voters, and preparation of electoral rolls (list of voters). RP Act, 1951 was passed by the provincial parliament on 17 July 1951 (the constituent assembly established for the formation of the Indian constitution was considered to be the provincial parliament after the enforcement of the Indian constitution and until the selection of new members for the parliament by the first general election in 1952).

Now, coming to the topic of this article we are to deal with Section 62 of the Representation of the People Act, 1951 which ​​guarantees that everyone on the electoral register of their particular constituency has the right to vote. Further, the clauses of this section communicate that:

  • Under any circumstances an individual (voter) may vote in a single constituency only; and
  • Just for one time in a given election
  • In the event when an individual is imprisoned, regardless of whether under a sentence of detainment or transportation, he is not entitled to vote; but, in the case of preventive detention, he is eligible to vote.

Prima facie the right to vote is a statutory right because it is presented to you by a statute, but some jurists argue that this right is given under the constitution. Once a Supreme Court judge agreed to this latter view, which is the source of all confusion.

Background of case laws

  • Union of India v. Association of Democratic Reforms and Anr. 2002 case is based on the constitution as well as election law. In this case the 3-judges bench of the supreme court of India upheld a high court decision mandating the election commission to obtain and disclose to the public the background information of the candidates contesting for office, including information on their assets, criminal records, and educational background by using Article 324 of the constitution.

Also, the court ruled that the right to know about public officials is derived from the constitutional right to freedom of expression (the Right to Information (RTI) is implicit in Article 19(1) (a) of the constitution) as the people must have full knowledge before judging/expressing their votes. This ruling brought around the assertion that the right to vote is the fundamental right of the people which was a wrong interpretation because the court only widened the ambit of RTI, it did not declare that the right to vote is a constitutional right.

The effect of this judgment was that the Union of India (UOI) filed an appeal against this ruling of the supreme court and during this time they inserted Section 33A and 33B to RPA, 1951 effectively nullifying the judgment of UOI v. ADR, 2002 (Section 33B aimed to regulate the flow of information on the candidates).

  • People’s Union of Civil Liberties (PUCL) v. Union of India, (UOI), 2003 challenged section 33B of RP act, 1951 calling it ultra vires. The decision for this case came on 13 March 2003 by a 2-judges bench of Justices K.G. Balakrishnan and P. Venkatarama Reddi. Justice PV Reddy presented the opinion of the court and it was concluded that Section 33-B is arbitrary and unconstitutional and voters have a fundamental right under Article 19(1)(a) to know about the contesting candidates. The root of this Article’s question is the Judges’ disagreement regarding the constitutional dimensions of the right to vote, as opposed to the right of voters to information. However, having similar beliefs upon the real question of this case, they held opposing viewpoints on the status of the right to vote under the Indian constitutional framework.

MB Shah, J. observed (for himself and on behalf of DM Dharmadhikari, J.):

“there cannot be any dispute that the right to vote or stand as a candidate for election and decision with regard to violation of election law is not a civil right but is a creature of statute or special law and would be subject to the limitations envisaged therein.”

Opposite to this view, P Venkatarama Reddi, J. remarked:

…The right to vote, if not a fundamental right, is certainly a constitutional right. The right originates from the Constitution and in accordance with the constitutional mandate contained in Article 326…”.

  • Kuldeep Nair v. UOI, 2006 is a landmark case on constitutional law. In 2003, the need of “domicile” in the state concerned for being elected to the council of state was removed by an amendment to the Representation of People Act, 2003. Also, another amendment was there which introduced the Open Ballot System.

Kuldeep Nair challenged these amendments made in the Representation of People Act by presenting a writ petition under Article 32 of the constitution. The contention of the petitioner was that the majority view in the case of People’s Union for civil liberties was that the right to vote is a constitutional right and also it is a component of fundamental right thus these amendments are violative of Fundamental Right under Article 19(1)(a).

According to the decision of the court, the writ petition in this case under Article 32 was not maintainable as : “the right to vote or stand as a candidate for election is not a civil right but is a creature of statute or special law and must be subject to the limitations imposed by it.” Hence, there was no violation of fundamental rights.

The court in this judgment further gave references to previous supreme court cases that presented the same view. The case of 1982, Jyoti Basu v. Debi Ghosal observed, “A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a common law right. It is pure and simple, a statutory right.” (Right to elect is the same as the Right to vote). Yet another case, Rama Kant Pandey vs Union Of India, 1993 observed this same vision of the supreme court. In this case, the petitioner filed a writ petition under Article 32 questioning the constitutional validity of amendments made in section 52 and section 30 of the Representation of People Act, 1951 by The Representation of the People (Amendment) Ordinance, 1992 (Ordinance No.1 of 1992) and The Representation of the People (Second Amendment) Ordinance, 1992 (Ordinance No.2 of  1992) respectively. With respect to section 52, the amendment was made to capsulize the situations under which elections could be countermanded whereas Article 30 amendment subjected to revision of polling dates (it was made not before ‘fourteenth day’ after the last date for the withdrawal of candidatures). The court dismissed this writ petition saying, “The right to vote or to stand as a candidate for election is neither a fundamental right nor a civil right. In England also it has never been recognized as a common-law right.”

  • The last case of our discussion comes, the 2004 case of People’s Union of civil liberty v. Union of India popularly known as the NOTA (none of the above) case. “None of the above” otherwise called “against all”, “negative vote” or a “scratch” vote, is a ballot option in a voting system, created to allow a voter to express discontent with the candidates. It gives freedom to the voter to withhold their votes and express their disapproval of the contesting candidates. The NOTA right to vote is present in numerous countries of the world in one form or another. The case was benched by Justices P Sathasivam, Ranjana Prakash Desai and Ranjan Gogoi and final verdict came in 2013.

The Supreme Court of India declared that the NOTA should be recognized in elections, and the Election Commission was directed to include a “none of the above” button on electronic voting machines (EVMs).

There was an additional question of discussion, on 23 February 2009, a Division Bench after reviewing Union of India vs. Association for Democratic Reforms, 2002 and People’s Union for Civil Liberties vs. Union of India, 2003 expressed that tough Kuldip Nayar & Ors. vs. Union of India, 2006 did not overturn or disregard the ratio established in the preceding judgments, surely created doubt about whether the Right to vote is a constitutional right or a Statutory right.

Regarding an objection to the writ petition’s maintainability based on this doubt, the matter was referred to a larger Bench by Justice G.S. Singhvi.

Mr. P.P. Malhotra (Additional solicitor general of India from 2004 – 2014) appearing for the Union of India contended that neither the RP Act nor the Constitution of India declares the right to vote as anything more than a statutory right and thus, referring the case to a larger bench for the same was unnecessary.

Immediately after the verdict of Justice P Venkatarama Reddi in the case People’s Union of Civil Liberties (PUCL) v. Union of India (UOI), 2003, the media and some jurists spread the word that the Supreme Court has declared the right to vote a constitutional right. The larger bench which was set up to decide on this matter later in People’s Union of civil liberty v. Union of India, 2013 tried to explain the interpretation of Justice Reddy stating, “a fine distinction was drawn between the right to vote and the freedom of voting as a species of freedom of expression” and communicated that the Supreme court never declared the right to vote as a constitutional right rather it described the casting of the vote as a facet of the right of expression (right provided under Article 19(1)(a) of the Constitution of India).

Hence, any person has the right to file a writ petition in case his right to expression is hindered with respect to the right to vote freely. Therefore, the court in the light of all the arguments presented that the writ petition was maintainable in this case and held that Rules 41(2) & (3) and 49-O of the Conduct of Election Rules, 1961 are unconstitutional as per Article 19(1)(a) to the extent they violate the secrecy of voting and thus freedom of expression.

The Supreme Court frequently reiterates itself declaring the right to vote as a pure and clear statutory right but still many people believe that the right to vote is a constitutional right. It is necessary to note that although the right to vote is a statutory right, its value in maintaining democracy, which is a chief principle of our Basic structure, is magnificent thus this right needs to be well-protected.

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Garima Wadhwa
Garima is a budding writer who likes to create awareness against social taboos through her works of passion. She is currently pursuing LL.B. from Panjab University, Chandigarh.

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