Should Voting Be a Fundamental Right in India?

Syllabus: GS2/ Polity and Governance

Context

• Recently an old constitutional debate has been revived by demanding that voting should be recognised as a fundamental right.

Right to Vote in India

• Article 326 of the Indian Constitution provides that every citizen of India, not less than 18 years of age is entitled to be registered as a voter for Elections to the House of the People and Legislative Assembly of every State on the basis of adult suffrage.
• Originally, the minimum voting age under Article 326 was 21 years. The 61st Constitutional Amendment Act, 1988 reduced it to 18 years.
• Status of the Right to Vote in India:
  • In the N.P.Ponnuswami case (1952), a Constitution Bench of the Supreme Court held that the right to vote is a statutory right.
  • The Supreme Court in Kuldip Nayar v. Union of India (2006) held that the ‘right to elect’ is a statutory right under Section 62 of the RPA, 1951, and not a fundamental or constitutional right.
  • In the Jyoti Basu case (1982), the court reiterated that the right to vote is neither a fundamental right nor a common law right but a statutory right.

Gradual Constitutionalisation of Voting Rights

• The Supreme Court has progressively expanded constitutional protection to different aspects of voting through various judgements.
• Right to Know (2002): In Union of India vs Association for Democratic Reforms, the Court recognised that voters have a fundamental right under Article 19(1)(a) to know the criminal background, educational qualifications, and financial assets of candidates.
  • The Court held that an informed voter is essential for meaningful democratic participation.
• Freedom to Make an Informed Choice (2003): In People’s Union for Civil Liberties vs Union of India, the Court distinguished between:
  • The right to vote, which remains statutory.
  • The freedom of voting, which includes making an informed choice and is protected under Article 19(1)(a).

Why Should Voting Receive Constitutional Protection?

• Basic Structure Doctrine: In Kesavananda Bharati vs State of Kerala, the Supreme Court held that democracy is part of the Constitution’s Basic Structure.
  • Since democracy cannot function without citizens participating in elections, voting represents the practical exercise of popular sovereignty.
• Article 326 Provides Constitutional Recognition: The Constitution guarantees universal adult suffrage under Article 326 and the Parliament only prescribes procedural aspects through electoral laws.
  • Therefore, the citizen’s entitlement to participate in elections originates from the Constitution rather than ordinary legislation.

Concerns Over Recognising Voting as a Fundamental Right

• Reduced Legislative Flexibility: Parliament’s ability to prescribe qualifications, disqualifications, and electoral procedures will face greater constitutional constraints and judicial scrutiny.
• Excessive Judicialisation: Routine electoral matters, such as voter registration, electoral rolls, and polling procedures, could increasingly become subjects of constitutional litigation.
• Adequate Constitutional Safeguards: Universal adult suffrage under Article 326, along with the basic structure doctrine protecting democracy and free and fair elections, already provides substantial constitutional protection to voting rights.

Concluding remarks

• The Supreme Court has progressively constitutionalised the electoral process by protecting voters’ right to know, freedom of electoral choice, ballot secrecy, and the right to reject candidates through NOTA. 
• Given that democracy and free and fair elections form part of the Constitution’s Basic Structure, there is a compelling constitutional argument that the core right of every eligible citizen to vote deserves explicit constitutional protection, while allowing Parliament to regulate the procedural aspects of elections.

Source: TH