Right to vote in India is a Special Right not Fundamental right

A thriving and vibrant electoral democracy has been India’s distinct and durable identity, long before it asserted itself as an economic, nuclear or IT major.   Founded by a great Constitution,  it has been nurtured by parliament, judiciary, political parties, media and above all by the people of India, with some distinct contribution from the Election Commission of India.

Despite doubts and fears from many quarters, founders of modern India adopted universal adult suffrage thus reposing faith in the wisdom of the common Indian to elect his/her representative to the seat of power. Choice of electoral democracy was variously termed: a giant leap forward, a bold enterprise, an unparalleled adventure. When the independence came directly to the hands of ordinary people in the form of a vote,  it was a period when 84% of Indians were illiterate, an equal number in poverty living in an unequal society fractured by a caste-based hierarchical system. India has proved Nobel laureate Amartya Sen’s famous statement that a country does not become fit for democracy, it becomes fit through democracy.  The Constitution created a fiercely independent Election Commission of India to carry the democracy forward.

Right to Vote under international law

There is no gainsaying the fact that the right to vote encourages civic consciousness through political participation; as such, the right to vote is anchored on the tenets of democracy; and democracy is regarded as one of the universal core values and principles of the United Nations. It is trite that respect for human rights and fundamental freedoms and the principle of holding periodic and genuine elections by universal suffrage are essential elements of democracy. As such, the right to vote is an indispensable right and the fulcrum upon which democracy rests.

In fact, the Universal Declaration of Human Rights, adopted unanimously by the United Nations General Assembly in 1948, recognizes the integral role that transparent and open elections play in ensuring the fundamental right to the participatory government.

The Universal Declaration of Human Rights in Article 21 essentially states that “the will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret ballot or by equivalent free voting procedures.”

The role that periodic, free elections play in ensuring respect for political rights also is enshrined in the International Covenant on Civil and Political Rights; particularly, Article 25, which recognises that every citizen has the right “…to vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors…”, is regarded as the key international guarantee of voting rights and free elections.

Right to vote in India

Constitution of India Article 325 No person to be ineligible for inclusion in, or to claim to be included in a special, electoral roll on grounds of religion, race, caste or sex for right vote India.

There shall be one general electoral roll for every territorial constituency for election to either House of Parliament or to the House or either House of the Legislature of a State and no person shall be ineligible for inclusion in any such roll or claim to be included in any special electoral roll for any such constituency on grounds only of religion, race, caste, sex or any of them.

Constitution of India Article 326 Elections to the House of the People and to the Legislative Assemblies of States to be on the basis of adult suffrage. 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.

Representation of People Act, 1951 Section 62. & Right vote India

(1) No person who is not, and except as expressly provided by this Act, every person who is, for the time being, entered in the electoral roll of by any constituency shall be entitled to vote in that constituency.

(2) No person shall vote at an election in any constituency if he is subject to any of the

disqualifications referred to in section 16 of the Representation of the People Act, 1950 (43 of 1950).

(3) No person shall vote at a general election in more than one constituency of the same class, and if a person votes in more than one such constituency, his votes in all such constituencies shall be void.

(4) No person shall at any election vote in the same constituency more than once, notwithstanding that his name may have been registered in the electoral roll for that constituency more than once, and if he does so vote, all his votes in that constituency shall be void.

(5) No person shall vote at any election if he is confined in a prison, whether under a sentence of imprisonment or transportation or otherwise, or is in the lawful custody of the police:

Provided that nothing in this sub-section shall apply to a person subjected to preventive detention under any law for the time being in force.

[(6) Nothing contained in sub-sections (3) and (4) shall apply to a person who has been authorized to vote as proxy for an elector under this Act in so far as he votes as a proxy for such elector.].

—So with reference to the aforementioned:-

Article 326 of the Constitution only permits the disqualification of a voter under the Constitution or a law on the grounds of “non-residence, unsoundness of mind, crime or corrupt or illegal practice”. And confers that the Election to House and Assembly shall be on the basis of Adult Suffrage; which in itself doesn’t entitle citizens the right to vote; but entitles the class of citizens to be enrolled as a voter.

It is 62 (1) of RPA, 1951 which confers the citizens the Right to Vote; and when one is not eligible to vote.

Hence “The Right to Vote” is neither Fundamental Right nor Constitutional Right but a mere Statutory Right or Legal 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, RPA, 1951.

Right to vote Special Right not Fundamental right:

Unfortunate as it is, there is still no clear line of judicial thinking on the question of what is the meaning of this right to vote and right to contest. We still are hazy on whether they are symmetrical or not, whether they ought to be included as an implicit part of Part III of the Constitution, whether they occupy a separate place in the Constitution as “constitutional” but not fundamental rights, or are they mere statutory rights.

While reviewing the Supreme Court’s slightly awkward and sometimes awfully contrary determinations of the right to vote and contest, there came up a need to find the source of the dispute, the origin of the controversy. And this took us back to 1952-to the Supreme Court’s decision in N. P. Ponnuswami v. Returning Officer, Namakkal Constituency and Ors. (1952 SCR 218), where the rights in question were first discussed. Now this decision becomes important for two reasons: (i) that it was the first time that the right to contest was debated upon, and (ii) the contention of the State of Haryana, that the rights to vote and contest were mere statutory rights and not fundamental or constitutional in nature was derived from a line of cases decided by the Supreme Court, the first of which was Ponnuswami.

In paragraph 19 of Ponnuswami, the Court relied upon the decision of the Privy Council rendered in the case of Joseph Théberge and Anr. v. Phillipe Laudry (1876) 2 AC 108 and observed (as obiter) that the following position of law emerges:

“(1) The right to vote or stand as a candidate for election is not a civil right but a creature of statute or special law and must be subject to the limitations imposed by it.

(2) Strictly speaking, it is the sole right of the legislature to examine and determine all matters relating to the election of its own members, and if the legislature takes it out of its own hands and vests in a Special Tribunal an entirely new and unknown jurisdiction, that special jurisdiction should be exercised in accordance with the law which creates it.”

One should note here that the context in which these observations were made was that of the powers of the High Court to hear an election dispute and the effect of the constitutional bar found in Article 329(b) on such powers.

The abovementioned observations have formed the foundations of an election jurisprudence in India that has identified at certain points, the rights to vote and contest as merely statutory, and at other points as constitutional or even fundamental. Given this, we contended that the observations made in Ponnuswami’s Case (and later followed in several other decisions of Supreme Court) were arrived by relying upon the ratio of Theberge v. Laudry, which was decided in a very specific context, i.e., that of colonial England, and as such the same could not be applied to the context of an independent and democratic India.

Article 326 of the Constitution provides for the universal adult franchise, therefore unlike in Colonial England, the right to elect does not find its origins in the supremacy of the legislature, but in the Constitution. Additionally, while parliamentary privileges are matters outside the jurisdiction of Courts even in India, no legislature in India has ever assumed the powers to adjudicate disputes relating to election petitions. The Constitution does not grant either the Parliament or the State Legislatures such a power, and Article 329 which deals with election petitions, specifies the manner in which such a dispute is to be heard, and by what authority.