The right to vote is an expression of the choice of the citizen which is a fundamental right under Article 19(1)(a)
By Dr Madabhushi Sridhar Acharyulu
Hyderabad: Does a citizen have the right to vote? Is it not part of the right to expression? This question has something to do with the process of making appointments to the Election Commission, which was discussed while the Supreme Court was considering the judgement in the case Anoop Baranwal v Union of India, on March 2. Article 324(5) of the Constitution is intended to ensure the independence of the Election Commission, free from all external political interference and, which also expressly provides that the removal of the Chief Election Commission from office shall be in like manner as of a Supreme Court judge. While arguing about this point, the four judges advanced to “demystify” Article 326. The majority in the Constitutional Bench held that the right to vote was not a fundamental right, and they were not really concerned with this as a primary issue.
Justices KM Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and CT Ravikumar did not make any declaration about ‘Constitutional Right’ while citing the 2006 judgment in Kuldip Nayar vs Union of India. The four judges in majority, however, refrained from making a final judicial declaration in this regard in Kuldip Nayar…
“What is important is that the Court noted in Anukul (SC Judgement) that holding of free and fair elections constitutes a basic feature of the Constitution and approved of the view apparently that the Right to Elect is fundamental to democracy. Even if it is treated as a statutory right…the right is of the greatest importance and forms the foundation for a free and fair election, which, in turn, constitutes the right of the people to elect their representatives. We would for the purpose of the list in question rest content to proceed on the said basis,” Justice Joseph, writing for the majority, said.
Not merely a constitutional right
While agreeing with the other judges, Justice Rastogi observed that the right to vote is not merely a constitutional right but a component of Part III of the Constitution. He goes on to state that the right to vote is not limited only to Article 326 but flows through Articles 15, 17, 19 and 21 of the Constitution.
“In history, the right to vote was denied to women and those were socially oppressed. Our Constitution took a visionary step by extending franchise to everyone. In that way, the right to vote enshrines the protection guaranteed under Article 15 and 17…The right to take part in the conduct of public affairs as a voter is the core of the democratic form of government, which is a basic feature of the Constitution. The right to vote is an expression of the choice of the citizen, which is a fundamental right under Article 19(1)(a). The right to vote is a part of a citizen’s life as it is their indispensable tool to shape their own destinies by choosing the government they want. In that sense, it is a reflection of Article 21.”
Taking the strength from the Constituent Assembly Debates, Justice Rastogi said the right to vote was initially considered a fundamental right. However, it was shifted to another constitutional provision as the founders did not want to “offend” the princely States with whom they were negotiating to be a part of India. He said: “Otherwise, they had stressed the importance of the right to vote and universal adult franchise. Seventy-five years after Independence, we have the opportunity to realise their absolute vision by recognising what they could not due to socio-political circumstances of their time.”
Other Cases
A Bench of six judges in NP Ponnuswami v Returning Officer, Namakkal, in the context of Article 329(b), held that the right to vote was a creature of a statute…The court really was not concerned with the question as to whether Article 326 provided for a constitutional right to vote.
In Rama Kant Pandey v Union of India, a three-judge Bench was dealing with a petition challenging the validity of the Representation of the People (Amendment Ordinance) Act, 1992…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.”
In Kuldip Nayar too, the majority noted that the question which actually fell for consideration was the validity of a certain amendment regarding domicile in the state concerned for being elected to the Council of States. They found that if a person is a citizen of India and not below 18 years of age, and if s/he does not incur the disqualifications (prescribed in Article 326), s/he becomes entitled to be entered into the electoral roll.
“Such person, as is indicated in Article 326, indeed, has a right, which can be said to be a Constitutional Right, which may be right subject to the restriction. Section 62(1) of the 1951 Act, as we have noticed, gives also the Right to Vote to such a person. Any other interpretation would whittle down the grand object of conferring adult suffrage on citizens.”
Fundamental Freedoms
The majority proceeded to add that merely because citizens are bound by certain restrictions under Article 326, it does not “detract” from the existence of a Right.
“Article 19 confers fundamental freedoms, which are understood as Fundamental Rights. The Fundamental Rights can be regulated by law made under Article 19(2) to Article 19(6). Could it be said that, in view of the power to regulate the Fundamental Right, no right exists?”
In that sense, the majority opined it could be said that Article 326 provides a constitutional right, subject to restrictions which the law provides for, which must finally be traced to its shores. It held that the restrictions under Article 326 are only meant to provide against the misuse of the right. However, the majority said that it cannot (in deference to judicial propriety) and it need not finally pronounce on this aspect, in view of the Kuldip Nayar case.
Recently, Chief Justice of India DY Chandrachud, while hearing a PIL challenging the constitutionality of Section 33(7) of the Representation of Peoples Act, 1951, expressed his reservations on the view that the right to vote was a statutory right, and said “of course, there are some judgements that say that the right to vote is only a statutory right and not a constitutional right. But no, it is a constitutional right because it’s a part of Article 19(1)(a).”