Constitutional status of the Right to Vote in India

Abstract

The right to vote precedes all other rights when it comes to governance. It is a process that enables the citizens the right to choose their own government which is an essential pre requisite for operation of a democracy.

In the Indian context, the right to vote has been granted to all Indian citizens who are of sound mind & above the age of 18, irrespective of any social, economic and cultural diversities. The paper seeks to analyze the constitutional status of the Right to vote and other rights concerned therewith. The precise status of the right to vote has a serious upshot in determining the future of a polity.

Further, as reaffirmed by the Supreme Court in UOI v. Association for Democratic Reforms, The right to vote is not a civil right but is a creature of a statue, subject to the limitations envisaged therein.

The Supreme Court in Peoples Union for Civil Liberties v. UOI also put forth the status of right to vote in India as a Statutory right. Hence, such differential nature of the Right to vote as a Constitutional right rather than a fundamental one has led to many active controversies, conflicts such as a petition dating back to 2015 in the Supreme Court wherein some contentions were made regarding the nature of right to vote as a fundamental duty.

Apart from that, many hindrances break out in the actual execution of the Right to vote including the conflict prone area of free and fair elections. In such circumstances, the role of a supervising authority becomes essential to prevent the misuse of such a valuable right while at the same time guarding its constitutional status.

Key words: suffrage, elections, constitutional right, fundamental right, disenfranchisement, Election commission, rudimentary, cosmopolitan

Introduction

The right to vote is one of the limited means through which citizens draw their power. The democratic underpinnings of a country are always based on the nature and treatment of voting rights and their implementation.

The right to vote is the fundamental basis of democracy’s ‘Of the people, for the people, and by the people’ slogan. The nucleus of this right is the process of elections. The exercise of the right to vote is what ensures the ebb and flow of change according to the needs of citizens. Thus, it is a catalyst through which citizens express their consent and participate in the actual formation of the governing authority.

Globally, the right to vote enjoys the status of a universal human right. Article 25 of the International covenant on civil and political rights (ICCPR) is cosmopolitan providing guarantee of voting rights and describes its nature as a Universal right. Further, Article 21 of the Universal Declaration of Human Rights, 1948 provides that, the will of the people shall be expressed by universal and equal suffrage through genuine, periodic elections. Hence, this right to vote is a well accepted part of International law.

Objectives of study

• To discuss the global status enjoyed by the right to vote.
• To study and analyze the Indian provisions related to it in the Constitution.
• To examine the status of right to vote in India on basis of case laws.
• To discuss several limitations on same.
• To differentiate right to vote as a constitutional right and not a fundamental one.

Indian context

The right to vote and to be voted likewise doesn’t have a statutory status all over the world. But in the Indian context it is heartening to know that it is a well accepted part of its Constitutional jurisprudence.

In British India, voting rights were conferred to certain people surpassing the eligibility criteria. Eventually, the Indian Councils Act, 1901 popularly called as the Morley-Minto reforms paved the way for electoral reforms and growth of voting rights. Yet, females who formed a substantial fraction of the society were still left out. It was in the year 1929 that women got their dues. And hence, the first general elections of 1951 brought India to world map and thereafter, India became the flag bearer of this democratic value.

Part XV of the Constitution of India entitled as ‘Elections’ constitutes a code in itself which provides the groundwork for conduct of elections, exercise of right to vote and other rights concerned therewith. Some of them are-

• A mention of Article 326 becomes vital as it provides that elections shall be on basis of adult suffrage which implies that every person who is a citizen of India, not less than 18 years of age and not disqualified by law has the right to vote.
• Article 324 provides for genesis of an Election Commission which will be vested with
  power of superintendence, direction and control of elections.
• Article 327 empowers the parliament to make provisions with respect to elections to
  Legislature thus acknowledging a certain degree of legislative control.
• Article 329 sets a bar to interference by courts and thus limiting the scope & extent of judicial scrutiny in electoral matters.

Constraints on right to vote

The right to vote and to be voted is creature of a statue and hence subject to limitations imposed by it. These rights are not absolute in nature. Section 16 of Representation of the People Act, 1950 provides for grounds for disqualification for registration in the electoral roll also known as disenfranchisement. Accordingly, a person shall be barred from voting if he-

• Is not a citizen of India or
• Is of unsound mind and stands so declared by a competent court, or
• Is for time being disqualified from voting under provisions of any law relating to corrupt practices and other offences in connection with elections, or
• Stands in conviction of certain offences

However, there is no differentiation on basis of religious, cultural, economic disparities. Thus, while the right to vote is comprehensively recognized as universal human right but still it isn’t fully enforced for millions of individuals. Ordinarily, consistently disenfranchised groups include non citizens, minorities, offenders, disabled, lunatics and many other who lack access to voting rights for a variety of reasons including poverty, illiteracy, intimidation or unfair election process etc.

Status & nature of the right to vote

Despite the presence of a plethora of provisions securing the voting rights of citizens yet, that doesn’t necessarily, translates the status of right to vote to the status of a fundamental right.

Though of supreme importance to dynamics of a democracy, the right to elect and to be elected is neither a fundamental right nor a common law right but rather a Constitutional one.

In Rajbala v. State of Haryana AIR 2016 SC33, the Apex court referring to provisions of Article 80, 171, 325 & 326 of the Indian Constitution held that the right to vote and right to contest elections are Constitutional rights of a citizen and not merely statutory ones. The right to vote if not a fundamental right is certainly a constitutional one and it’s not very accurate to describe it as a statutory right pure and simple. The court held that the question whether right to vote is constitutional or statutory right is no more res Integra.

However, several controversies and conflicts surround the area as in the case of People’s Union for Civil Liberties v. Union of India where there was a difference of opinion regarding the constitutional contour of the right to vote as distinct from the right to information of the voters.

According to some researches, the possible reasons as to why right to vote is not classified as a fundamental right are constructed. Some of them are-

• When the Constitution was adopted and enforced, the mechanisms and other provisions regarding conduct of elections and exercise of voting rights hadn’t been worked out. It was after the Representation of People Act, 1950 that it came into being.
• The tenor of all fundamental rights shows that they emphasize on equality and freedom but Right to vote is a political right which might not fit in properly in the compass of social rights.
• Further, based on the ground realities relating to refutation of right to vote due to several reasons, it might lead to a frivolous increase in petitions for their enforcement.
• Article 14 covers the right to vote if denied on basis of caste, religion and gender. Hence, it has been suggested that there is no need of its explicit inclusion.

Based on such reasons and practicalities the classification of right to vote as a constitutional right and not a fundamental, statutory one is just, equitable and correct.

Conclusion

It is the right to vote which transforms subjects to citizens. Formally beginning in 1840 in the Kingdom of Hawaii, now almost every nation has this rudimentary element embedded in their provisions.

In light of various positions taken by the Indian judiciary in various case laws, it is recognized as a constitutional and a legal right. Further, it forms the basic structure of the Indian constitution.

In this respect an authority has been delegated by the Indian Constitution named as the Election commission which supervises all the processes and tasks concerned therein while maintaining an atmosphere of free and fair elections and guarding the constitutional status of the right vote by preventing its misuse and embezzlement. Yet, a concern is often reflected contending to grant right to vote the status of a fundamental right, thereby elevating its prestige.

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About Author

Avneet Kaur is a student of St. Soldier law college, Punjab and a budding researcher always curious to learn new things.