This Article is Written by Mr. Samsuddoha Khan, a 4th Year Student of B.A. LL.B(Hons.) and the Founder of thelegaltablet.com and Legal Tablet App . This Article has discussed the historical evolution and legal interpretations of the right to vote in India. It discusses the constitutional safeguards, judicial decisions, and the recent case of Anoop Baranwal v. Union of India, 2023. The majority opinion in the case holds that the right to vote is a constitutional right, not a fundamental right, while a concurring opinion by Justice Rastogi emphasizes its integral role in the fundamental right to freedom of expression. The conclusion advocates for elevating the right to vote to the status of a Fundamental Right under Article 19(1)(a) of the Constitution for a more resilient and inclusive democratic framework.
Table of Contents :
I. Introduction
II. Historical Evolution
III. Inherent in Democratic Principles
IV. Constitutional Safeguards
V. Nature of Right to Vote - Judicial Decisions
VI. Analysis of the Anoop Baranwal Case , 2023 Case
VII. Conclusion
I. Introduction
The right to vote serves as a bedrock of democratic societies, allowing citizens to actively participate in shaping their government. The right to vote has become a well-accepted part of international law and Indian constitutional jurisprudence. The right to vote is now not just a privilege , It is widely recognized Fundamental Human Right. [Article 21 of the Universal Declaration of Human Rights , 1948](https://www.un.org/en/about-us/universal-declaration-of-human-rights#:~:text=Article 21&text=The will of the people,by equivalent free voting procedures.) and [Article 25 of the International Covenant on Civil and Political Rights, 1966](https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights#:~:text=prohibited by law.-,Article 21,peaceful assembly shall be recognized.) protected Right to Vote. The question of the nature of the right to vote has been a topic of debate and legal scrutiny in India. As the world's largest democracy, the significance of the right to vote cannot be overstated. Over the years, there has been a nuanced discussion on whether the right to vote is a constitutional right, a statutory right, or a fundamental right. This article delves into the historical context, legal interpretations, and debates surrounding the right to vote in India, drawing on key insights from constitutional debates, court decisions, and legislative developments.
II. Historical Evolution
The evolution of the right to vote in India spans a transformative trajectory from colonial rule to a vibrant democracy. Initially limited under British colonialism, voting rights were gradually expanded through legislative Acts such as the Indian Councils Act of 1861, the principle of representation was initiated through this Act , Government of India Act, 1909 also known as Morley-Minto Reforms, it provided separate electoral System and the Montagu-Chelmsford Reforms of 1919 also known as Government of India Act, 1919, It’s object was the gradual introduction of responsible Government. Later the Government of India Act in 1935 marked a significant step towards representative governance.
Post-independence, the framing of the Indian Constitution in 1950 ushered in universal adult suffrage, a pivotal moment in India's democratic history.The roots of the right to vote in Independent India can be traced back to the Constituent Assembly debates where luminaries like Dr. B.R. Ambedkar, Sardar Patel, and Govind Ballabh Pant deliberated on the inclusion of this right in the constitutional framework. The Advisory Committee recommended that the right to vote should not be included in the fundamental rights chapter due to apprehensions about objections from certain states. Dr. Ambedkar acknowledged the delicate balance between incorporating states into the Union Constitution and adhering to constitutional principles. Consequently, the right to vote was retained but not as a fundamental right. The Constitution's framers sought to strike a balance, recognizing its constitutional significance without formally categorizing it as a fundamental right under Article 326.
Following Article 327, that conferred power on Parliament to make law from time to time relating to or in connection with election to either House of Parliament or the legislature of a state, Representation of People's Act,1950 and 1952 was enacted that granted the right to vote to every citizen of the age. Subsequently 61st Constitutional Amendment,1988 lowered the voting age to 18 from 21 and further enhanced inclusivity. From periodic delimitation exercises to the incorporation of technology in the electoral process, India's journey reflects a continuous commitment to ensuring fair representation and fostering a robust democratic framework.
The history of voting rights is a tapestry of progress, marked by the gradual expansion of suffrage and the continuous struggle for democratic ideals. From early exclusionary practices to the suffragette movements advocating for gender equality in voting, the journey toward inclusive voting rights highlights the ongoing evolution of democratic representation. Examining historical contexts provides insights into the development of the right to vote as a foundational element of democratic governance.
III. Inherent in Democratic Principles
The right to vote, inherent in democratic principles, is a constitutional and statutory right in India, deeply rooted in the democratic ethos. Emerging from the Constituent Assembly's deliberations, it symbolizes citizen empowerment and active participation in the democratic process. Despite concerns about princely states, the framers preserved its essence within the constitutional fabric, emphasizing its paramount importance. Legislative frameworks like Article 326 solidified its constitutional recognition, providing citizens the opportunity to shape their destinies. Judicial perspectives, notably in cases like Mohinder Singh Gill v. Chief Election Commissioner, AIR 1978 SC 851, underscored the intrinsic link between the right to vote and democratic values. This right, beyond legal definitions, is a manifestation of freedom of expression, promoting political equality and social inclusion.
Recognizing it as both a constitutional and statutory right ensures the vibrancy of India's democratic evolution. The ongoing debate should not overshadow its profound connection to democratic principles.The philosophical roots of democracy inherently tie the right to vote to fundamental principles of individual freedom, equality, and representation. Examining the conceptual framework of democracy elucidates why the right to vote is often considered a fundamental right intrinsically linked to the essence of self-governance. As citizens engage in the electoral process, they contribute to forming a government that mirrors their collective will.
IV. Constitutional Safeguards
Article 326 of the Constitution of India deals with Right to Vote that reads “The elections to the House of the People and to the Legislative Assembly of every State shall be on the basis of adult suffrage; that is to say, every person who is a citizen of India and who is not less than eighteen years of age on such date as may be fixed in that behalf by or under any law made by the appropriate Legislature and is not otherwise disqualified under this Constitution or any law made by the appropriate Legislature on the ground of non-residence, unsoundness of mind, crime or corrupt or illegal practice, shall be entitled to be registered as a voter at any such election.”
Mere reading of Article 326 suggests that only the right to be registered as a voter on the basis of Adult suffrage is guaranteed under Constitution not Right to Vote but in numerous judicial Pronouncement Hon’ble Supreme Court interpreting this Article held that Right to Vote is a Constitutional Right.
V. Nature of Right to Vote - Judicial Decisions
****This section delves into the jurisprudential landscape shaped by the Supreme Court and various High Courts concerning the nature of the Right to Vote. In the early judicial pronouncements, the prevailing view held that the right to elect or contest as a candidate in an election finds its origin in statute or special law, subject to the limitations prescribed therein. The justification behind this perspective lies in the perception that the Representation of the People Act, 1951, was deemed a comprehensive legal framework in itself, addressing challenges to elections and establishing a dedicated Tribunal for such matters.
This line of reasoning became the bedrock for the judiciary's stance, circumscribing the ambit of the right by attributing its genesis to statutory provisions.
In N.P Ponnuswami v. Returning Officer, A bench of six judges of the Supreme Court was dealing with the question whether the High Court under Article 31 can have jurisdiction to interfere with the order of the Returning Officer by reason of the provisions of Article 329(b) of the Constitution. While the Court was examining the contours of Article 329(b), it also made the following observation: “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. But the Hon'ble Court was not Concerned as to the question whether Article 326 provided for the Constitutional Right or not.
In Mohinder Sing Gill and Anr. v. Chief Election Commissioner, New Delhi and Ors., five judges bench of the Supreme Court of India was called on to interpret Article 324 and 329B of the Constitution It noted: “The most valuable right in a democratic polity is the 'little man's' little pencil-marking, assenting and dissenting, called his vote.... Likewise, the little man's right, in a representative system of Government, to rise to Prime Ministership or Presidentship by use of the right to be a candidate cannot be wished away by calling it of no civil moment. If civics mean anything to self-governing citizenry, if participatory democracy is not to be scuttled by law.... The straightaway conclusion is that every Indian has a right to elect and be elected and this is constitutional as distinguished from a common law right and is entitled to cognizance by Courts, subject to statutory Regulations.”
Adopting a different view, the Supreme Court held that Right to Vote & Right to Contest Election is a Constitutional Right.
In Jyoti Basu and Others v. Debi Ghosal and Others, the Court was dealing with a challenge to the High court rejecting an application in an Election Petition to strike out the names of certain parties from the array of parties. The Court inter alia held that Article 326 provides for elections to be held on the basis of adult franchise. Thereafter, the Court held as follows:
“The nature of the right to elect, the right to be elected and the right to dispute an election and the scheme of the constitutional and statutory provisions in relation to these rights have been explained by the Court in N.P. Ponnuswami v. Returning Officer, Namakkal Constituency [(1952) 1 SCC 94 : AIR 1952 SC 64 : 1952 SCR 218 : 1952 SCJ 100] and Jagan Nath v. Jaswant Singh [AIR 1954 SC 210 : 1954 SCR 892 : 1954 SCJ 257] . We proceed to state what we have gleaned from what has been said, so much as necessary for this case”
“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. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election.”
Reiterating the N.P Ponnuswami v. Returning Officer and Jagan Nath v. Jaswant Sing view, the Court held the right to elect i.e right to vote and right to be elected are neither a fundamental right nor a common law right but only a statutory right. It also held outside the Representation of Peoples Act, there was no right to elect or to be elected or to dispute an election. Since it was a statutory creation it was subject to statutory limitation.
The aforementioned three decisions (N.P Ponnuswami, Jagan Nath & Jyoti Basu) articulated perspectives on the right to vote; however, they didn't delve into the interpretation of Article 326, which addresses adult franchise. Consequently, these statements lack authority on the specific nuances of this constitutional provision.
In Mohan Lal Tripathi v. District Magistrate, Raibraally and others was a case wherein the appellant who was elected directly under Section 43 of the U.P. Municipalities Act was removed by a no-confidence motion. It was his contention that his removal was undemocratic as it was sought to be done by a smaller and different body than the one that elected him. It is in these facts that the court inter alia held as follows:
“..But electing representatives to govern is neither a ‘fundamental right’
nor a ‘common right’ but a special right created by the statutes or a
‘political right’ or ‘privilege’ and not a ‘natural‘, ' absolute’ or ‘vested right’.”
The Court was not dealing with the impact of Article 326. It followed the judgment in N.P. Ponnuswamy (supra).
In Rama Kant Pandey v. Union of India, a Bench of three learned judges of the Supreme Court was dealing with a petition challenging the validity of the Representation of the People (Amendment Ordinance) Act, 1992 on the ground of violation of Articles 14, 19 and 21. Section 52 providing for countermanding of polls was amended. It was in the context of the said challenge, the Court noted that the right to vote or to stand as a candidate for election was neither a fundamental nor civil right. It purported to follow the views which originated in the Ponnuswamy case .
In Anukul Chandra Pradhan, Advocate Supreme Court v. Union of India and others, a Bench of three learned Judges of the Supreme Court, while dealing with a challenge to Section 62(5) of the 1951 Act, on the ground that it violated Article 14 and 21 of the Constitution, upheld Section 62(5). We may only notice the following views expressed by the Court:
“There are provisions made in the election law which exclude persons with criminal background of the kind specified therein, from the election scene as candidates and voters. The object is to prevent criminalisation of politics and maintain probity in elections. Any provision enacted with a view to promote this object must be welcomed and upheld as subserving the constitutional purpose. The elbow room available to the legislature in classification depends on the context and the object for enactment of the provision. The existing conditions in which the law has to be applied cannot be ignored in adjudging its validity because it is relatable to the object sought to be achieved by the legislation. Criminalisation of politics is the bane of society and negation of democracy. It is subversive of free and fair elections which is a basic feature of the Constitution. Thus, a provision made in the election law to promote the object of free and fair elections and facilitate maintenance of law and order which are the essence of democracy must, therefore, be so viewed. More elbow room to the legislature for classification has to be available to achieve the professed object.”
The Court also found other reasons to justify the provision. It was noted that permitting every person in prison to vote, would lead to a resource crunch in terms of police force required to facilitate the right. The Court also went on to hold that the Right to Vote is also subject to limitations imposed by the Statute. The specific question, as to whether it constituted a Constitutional Right under Article 326, as such, was not presented for adjudication.
In the case of Union of India v. Association for Democratic Reforms and Another, this Court was considering whether there is a right of the voter to know about the candidates contesting election. Holding in affirmative, it was held: “In democracy, periodical elections are conducted for efficient governance for the country and for the benefit of citizens - voters. In a democratic form of government, voters are of utmost importance. They have the right to elect or re- elect on the basis of the antecedents and past performance of the candidate. The voter has the choice of deciding whether holding educational qualification or holding of property is relevant for electing or re-electing a person to be his representative”
After the judgment of Union of India v. Association for Democratic Reforms and Another amendments were made to the Representation of Peoples Act.
In People’s Union for Civil Liberties (PUCL) and Another v. Union of India and Another amendments made to the Representation of Peoples Act were scrutinized by a three-judge bench of the Supreme Court of India. The Court re-examined the issue of whether a voter has any fundamental right to know the antecedents/assets of a candidate contesting the election under Article 19(1)(a). An argument was made before this Court that a voter does not have such a right, as there is no fundamental right to vote from which the right to know the antecedents of a candidate arises. While the three judges (M.B. Shah, Venkatarama Reddi, D.M. Dharmadhikari, JJ.) unanimously agreed that the voters have a right under Article 19(1)(a) to know the antecedents of a candidate, there was a difference on the scope of the right to vote.
Referring to N.P. Ponnuswami and Jyoti Basu judgments, Justice MB Shah held that “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.” He held that, “Merely because a citizen is a voter or has a right to elect his representative as per the Representation of Peoples Act , his fundamental rights could not be abridged, controlled or restricted by statutory provisions except as permissible under the Constitution.” He stated that whether the right to vote is a statutory right or not does not have any implication on the right to know antecedents, which is a part of fundamental right under Article 19(1)(a). He however also held that democracy based on adult franchise is part of the basic structure of the Constitution, and that the right of adults to take part in the election process either as a voter or a candidate could only be restricted by a valid law which does not offend constitutional provisions.
Justice Venkatarama Reddi emphasized on the right to vote, and held: “The right to vote for the candidate of one's choice is of the essence of democratic polity. This right is recognized by our Constitution and it is given effect to in specific form by the Representation of the People Act. The Constituent Assembly debates reveal that the idea to treat the voting right as a fundamental right was dropped; nevertheless, it was decided to provide for it elsewhere in the Constitution. This move found its expression in Article 326…”
He disagreed with the views expressed in N.P. Ponnuswami and Jyoti Basu, and held: “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, the right has been shaped by the statute, namely, R.P. Act. That, in my understanding, is the correct legal position as regards the nature of the right to vote in elections to the House of people and Legislative Assemblies. It is not very accurate to describe it as a statutory right, pure and simple.”
Justice DM Dharmadhikari expressed his agreement with the view taken by Justice Venkatarama Reddi, thus making it a majority decision holding that the right to vote is a constitutional right. Even Justice Shah had held that the right of adults to take part in the election process as a voter could only be restricted by a valid law which does not offend constitutional provisions.
In Kuldip Nayar v. Union of India the Court was concerned about the challenge to amendments made to the Representation of Peoples Act, which introduced changes to the procedure for getting elected to the Council of States by deletion of the requirement of 'domicile' and introduction of the 'Open Ballot System'. The Court after a lengthy consideration dismissed the challenge. Another question raised pertained to the nature of the right to vote - was it a constitutional or a fundamental right? The Court answered this by assessing all the precedents on this issue. While it drew a fine distinction between right to vote and freedom of voting, as species of freedom of expression; it reiterated the view in Jyoti Basu case that right to vote was neither a fundamental right nor a common law right, but Simply a statutory right.The understanding of the ratio on this point is a consistent legal exposition: the majority opinion in Association for Democratic Reforms case reiterates the statutory character of the right. Nevertheless, it must be pointed out that this case involved the right to elect representative of the Upper House by members of the Legislative Assembly which is not the same as right of a citizen to vote, so this leaves the question about the correctness of the finding of the court on this point debatable.
In People's Union for Civil Liberties v. Union of India A Bench of three learned Judges of the Supreme Court recognised the right of the person to express his disapproval of the candidates who stood for election by pressing a button which would indicate ‘none of the above’ (NOTA). In the course of this judgment dealing with the first PUCL judgment (supra), the Court held as follows:
“Thus, there is no contradiction as to the fact that the right to vote is neither a fundamental right nor a constitutional right but a pure and simple statutory right. The same has been settled in a catena of cases and it is clearly not an issue in dispute in the present case.”
In Raj Bala v. State of Haryana & Ors a clarity on the status of the right to vote was given. Justice Chelameswar and Justice Sapre gave separate concurring opinions. After analyzing the previous decisions of this Court, Justice Chelameswar came to the conclusion that “every citizen has a constitutional right to elect and to be elected to either Parliament or the State legislatures.” Justice Sapre reiterated the view taken in PUCL 2003 that the “right to vote” is a constitutional right but not merely a statutory right.
VI. Analysis of the Anoop Baranwal Case , 2023 Case
In this Case of Anoop Baranwal v. Union of India The 5-judge Constitution Bench of K.M. Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and C.T. Ravikumar, JJ has settled the dispute revolving around appointment of members of the Election Commission of India (ECI) and has held that the Chief Election Commissioner and Election Commissioners shall appointed by the President on the advice of a 3-member committee consisting of:
- the Prime Minister of India;
- the leader of opposition in Lok Sabha or in case, there is no such Leader, the Leader of the largest Party in the Opposition in the Lok Sabha having the largest numerical strength; and
- the Chief Justice of India .
While the bench deciding this went on to decide the nature of the right to vote where the Court in 4:1 ratio majority opinion held that Right to vote is a Constitutional Right not a Fundamental Right.
Majority Opinion given by the four judges Consisting of K.M. Joseph, Aniruddha Bose, Hrishikesh Roy and C.T. Ravikumar, JJ has held that right to vote or right to be elected is a Constitutional Right overruling the the opinion in NP Ponnuswami Case and Mohan Lal Tripathi vs. District Magistrate, Raibraally and others giving reasoning that “This Court was not dealing with the impact of Article 326. It followed the judgment in N.P. Ponnuswamy (supra).”
Concur Opinion given by Justice Rastogi observed as follows: “Now that we have held that the right to vote is not merely a constitutional right, but a component of Part III of the Constitution as well, it raises the level of scrutiny on the working of the Election Commission of India, which is responsible for conducting free and fair elections. As it is a question of constitutional as well as fundamental rights, this Court needs to ensure that the working of the Election Commission under Article 324 facilitates the protection of people’s voting rights”.
The concurring opinion of Justice Rastogi also asserts that the right to vote is an integral facet of the fundamental right to freedom of expression under Article 19(1)(a) of the Constitution of India. Viewing the act of voting as a form of expressing individual choice, the judgment underscores the essence of the right to vote in upholding democratic principles. It emphasizes that the right to vote is deeply rooted in the constitutional mandate, particularly Article 326, and has evolved over time in response to societal changes. By recognizing the historical context, the judgment contends that the right to vote was initially considered a fundamental right during the Constituent Assembly Debates. This broad interpretation extends the protection of the right to vote beyond Article 326, aligning it with other fundamental rights such as Article 15, 17, 19, and 21. The dynamic nature of the Constitution and its continuous evolution to meet contemporary challenges further support the assertion that the right to vote is an essential component of the fundamental right to freedom of expression.
VII. Conclusion
The recent landmark decision by the Supreme Court in the Anoop Baranwal v. UOI, 2023 the case is undeniably a milestone step toward recognizing the constitutional significance of the right to vote. The judgment, affirming the constitutional status of the right to vote, marks a pivotal moment in our democratic journey. However, to fortify the democratic foundations of our nation and align with global democratic principles, it is crucial to elevate the right to vote to the status of a Fundamental Right under Article 19(1)(a) of the Constitution.
Granting the right to vote the explicit protection of a Fundamental Right would not only bring it in harmony with internationally accepted norms but would also provide an additional layer of safeguard against potential legislative fluctuations. This move would signify a holistic commitment to democratic values, ensuring that citizens' participation in the electoral process is firmly entrenched in the fabric of fundamental freedoms. As we celebrate this significant stride, advocating for the formal recognition of the right to vote as a Fundamental Right becomes imperative for fostering a more resilient and inclusive democratic framework in our nation.
References :
I. NP Ponnuswami v. Returning Officer , AIR 1952 SC 64
II. Rajbala v. State of Haryana , (2016) 2 SCC 445 , PUCL V. Union of India, (2003) 5 SCC
III. DMDK v. Election Commission of India , (2011) 4 SCC 224
IV. Mohinder Singh Gill v. Chief Election Commissioner, AIR 1978 SC 851
V. Jyoti Basu and Others v. Debi Ghosal & Ors, (1982)1 SCC
VI. Mohan Lal Tripathi v. District Magistrate , Raibraally & Ors, (1992) 4 SCC 80
VII. Rama Kant Pandey v. Union of India, (1993) 2 SCC 438
VIII. Anukul Chandra Pradhan , Advocate Supreme Court v. Union of India and Ors, (1997) 6 SCC 1
IX. Union of India v. Association of Democratic Reforms and another , (2002) 5 SCC 294
X. People’s Union for Civil Liberties(PUCL) and Another v. Union of India and Another , (2003) 4 SCC 399
XI. Kuldip Nayar v. Union of India , (2006) 7 SCC 1
XII. Anoop Baranwal v. Union of India , (2023) 6 SCC 161
XIII. Joshua A. Douglas, ‘The Right to Vote Under State Constitution’ ( Vanderblit Law Review - Volume 67 , issue 1) <https://scholarship.law.vanderbilt.edu/cgi/viewcontent.cgi?article=1211&context=vlr > accessed on 28th January 2024
