Should Voting Be a Fundamental Right?

Syllabus: GS2/Polity & Governance

Context

• Disputes over the administration of electoral rolls, notably the charge that 97 qualified voters were left off the rolls in Goa, have revived the debate over whether the right to vote should be a Fundamental Right.

About Voting & Universal Adult Suffrage in India

• India adopted Universal Adult Suffrage at the very beginning of the Republic, unlike many Western democracies, where the right to vote was progressively won via fights over property, gender and race.
• Universal Adult Suffrage means that every adult citizen, subject to constitutionally authorised disqualifications, has the right to participate in elections without discrimination on grounds of caste, religion, gender, education or property.
• Article 326 of Indian Constitution provides for elections to the Lok Sabha and State Legislative Assemblies on the basis of adult suffrage.
  • And, the voting age, originally 21 years, was reduced to 18 years by the 61st Constitutional Amendment Act, 1988.
• The Representation of the People Act, 1950 (RPA 1950) mainly provides for the compilation of electoral registers and other associated issues, whilst the RPA 1951 deals with the conduct of elections, qualification and disqualification, corrupt practices and electoral offences.

Legal Status of the Right to Vote

• In Kuldip Nayar v. Union of India (2006), a Constitution Bench found the right to elect is a statute right not a Fundamental Right which is controlled mainly by Section 62 of the RPA, 1951.
• The Anoop Baranwal v. Union of India (2023) considered the link between voting and constitutional liberties such as Article 19(1)(a) and the democratic principles underpinning Article 21.
• Therefore, while the right to vote is presently treated as statutory, democracy and free and fair elections enjoy much stronger constitutional protection, including through the basic-structure doctrine.

Arguments for Giving Fundamental-Right Status

• Democracy is the basic structure: Free and fair elections were held to be part of the basic structure in Indira Nehru Gandhi v. Raj Narain (1975). A right so central arguably deserves Part III protection.
• Protection from ordinary legislation: As a statutory right, it can be curtailed by a simple parliamentary majority. Greater protection where electoral-roll errors indirectly affect welfare benefits.
• Direct remedy under Article 32: Fundamental rights can be enforced directly in the Supreme Court. Now, election disputes are largely channelled into election petitions (Article 329(b)).
• International norms: UDHR Article 21 and ICCPR Article 25 (India is a party) treat political participation as a human right.

Arguments against

• Could lead to greater judicial intervention in routine electoral disputes.
• Constitutional protection must still allow legitimate deletion of deceased, permanently relocated or otherwise ineligible voters.
• Any expanded judicial remedy would need to be reconciled with Article 329(b), which restricts court intervention in ongoing elections.

Why Accurate Electoral Rolls Matter?

• An election is meaningful only when eligible citizens are correctly included and ineligible entries are removed.
• A person needs to be at least 18 years old and ordinarily resident in a constituency to be registered, subject to the statutory framework under Section 19 of the RPA, 1950.
  • Section 21 provides for the preparation and revision of electoral rolls.
• Errors can lead to:
  • wrongful exclusion and disenfranchisement;
  • duplicate or ineligible entries;
  • impersonation and electoral malpractice; and
  • dilution of the principle of ‘one person, one vote’.
• The reported Goa episode is significant because it allegedly involved a technological and administrative problem that restricted the ability of local officials to rectify erroneous deletions.

Institutional Accountability

• Article 324 gives the ECI the constitutional responsibility of superintendence, direction and control of elections.
• Accountability needs to accompany centralisation with increasing digitisation of electoral administration. 
• Important safeguards include:
  • transparent and auditable digital records;
  • independent technology and cybersecurity audits;
  • time-bound correction of wrongful deletions;
  • adequate powers for Electoral Registration Officers (EROs) to rectify genuine errors;
  • accessible voter grievance mechanisms; and
  • clear responsibility for decisions taken through automated or centralised systems.

Way Forward

• India’s electoral philosophy needs to follow a principle that no ineligible person should manipulate the electoral process, but no eligible citizen should be denied participation because of an administrative or technological failure.
• The Supreme Court may have an opportunity to revisit the constitutional status of the right to vote. Until then, strengthening electoral-roll accuracy, institutional transparency and grievance redressal is essential.

Source: TH