New Delhi: It is “paradoxical” that the right to vote is not assigned the status of a fundamental right, while democracy has been recognised as a basic feature of the Indian Constitution, the Supreme Court observed in a judgment Monday.
A bench comprising justices S. Ravindra Bhat and Aravind Kumar was hearing a petition filed by Bhim Rao Baswanth Rao Patil, a Bharat Rashtra Samithi (BRS) MP from Telangana. Patil had challenged an order passed by the Telangana High Court in March this year, which had rejected his application to quash an election petition against him without a trial.
Patil’s election to the Zaheerabad parliamentary constituency in April 2019 was challenged by Congress leader K. Madan Mohan Rao, who Patil had defeated in the election.
In his petition, Rao claimed that Patil in his election affidavit did not disclose two of his past convictions in cases concerning violation of Minimum Wages Act 1948 and the Payment of Wages Act 1936, as well as a pending case against him.
Patil, in his defence, asserted that the law mandates disclosure only for pending cases in which the accused can face a jail term of two years or more, and for convictions in which the accused has been sentenced to a jail term of one year or more. He claimed that the cases against him didn’t fall in these categories.
In the judgment Monday, the apex court upheld the Telangana HC’s order and also emphasised the voter’s right to know about the antecedents of the candidates. It asserted that the right to vote, based on an informed choice, is a crucial component of the essence of democracy.
“This right is precious and was the result of a long and arduous fight for freedom, for Swaraj, where the citizen has an inalienable right to exercise her or his right to franchise,” the court said.
However, it added that, “Democracy has been held to be a part of one of the essential features of the Constitution. Yet, somewhat paradoxically, the right to vote has not been recognised as a fundamental right yet; it was termed as a ‘mere’ statutory right.”
Over the years, the status of the right to vote has been highly contested. While some judgments have categorised it as a statutory right, a more recent judgment held that it ought to be a constitutional right instead.
Also Read: Is 18 old enough to vote but too young to contest polls? Election Commission thinks so
What does the Constitution say?
Article 326 of the Constitution unequivocally declares that elections to legislatures are to be based on universal adult suffrage.
It adds that “every person who is a citizen of India and who is not less than 18 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.”
Article 326 had originally set the legal age of voting at 21 years, which the Constitution (61 Amendment) Act 1989, introduced by the Rajiv Gandhi government, reduced to 18. The statement of objects and reasons for the amendment asserted that the “present-day youth are very much politically conscious”, and proposed lowering the voting age.
“The present-day youth are literate and enlightened and the lowering of the voting age would provide to the unrepresented youth of the country an opportunity to give vent to their feelings and help them become a part of the political process,” the bill added.
Meanwhile, several Supreme Court judgments have taken contradictory stands on whether the right to vote is a statutory right or a constitutional right.
Fundamental rights form a part of the Part III of the Constitution, which are guaranteed to every citizen of the country, and cannot be taken away by the state, except for the reasonable restrictions imposed on these by the Constitution itself.
Anybody can approach the high courts or the Supreme Court for enforcement of these rights, which are placed on the highest pedestal. They include the right to life and personal liberty, the right to freedom of speech and expression, and the right against discrimination, among others.
Apart from fundamental rights, the Constitution also provides for certain rights in other chapters. The right to property is an example of a constitutional right. These can be altered through constitutional amendments. Anybody can approach the high courts or other specified forums for enforcement of these rights as well.
Statutory rights, meanwhile, are those provided for by any laws passed by Parliament. These rights can be enforced in courts provided for in the law itself, and can also be curtailed or completely removed by bringing in amendments to the law. Examples of these include the statutory rights of tenants, and the right to enter into contracts.
Contradictory stands
In a 1982 judgment, the Supreme Court took the view that the right to vote is a statutory right. “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.”
But two decades later, in a 2003 judgment, two judges in a three-judge bench held it to be a constitutional right.
One of the judges had also drawn a distinction between the constitutional right to vote and the act of casting one’s vote or the freedom of voting. The judge explained that the freedom of voting is a part of the right to freedom of expression under Article 19(1)(a) of the Constitution.
He asserted that the moment a voter goes to the polling booth and casts his vote, his freedom of expression under Article 19(1)(a) arises. Therefore, the judge concluded that, while the right to vote is a constitutional right, the freedom of voting is a facet of the fundamental right under Article 19 of the Constitution.
This judgment also held that the “the right of the voter to know the bio data of the candidate was the foundation of democracy”.
However, a five-judge bench of the Supreme Court in the Kuldip Nayar case in 2006 held that the right to vote is not a constitutional right. In another 2013 judgment, a three-judge bench again asserted that the “right to vote is neither a fundamental right nor a Constitutional right but a pure and simple statutory right”.
Also Read: Electoral bonds put over Rs 1,200 cr into parties’ kitties this poll season, govt data reveals
From statutory right to fundamental right
In March this year, a five-judge bench of the Supreme Court noticed the “conflicting view on the status of the right to vote”. This was in the case related to revamping the selection mechanism for the chief election commissioner (CEC) and election commissioners.
The majority judgment — authored by Justice K.M. Joseph on behalf of himself and justices Aniruddha Bose, Hrishikesh Roy and C.T. Ravikumar — said that the right to vote should be a constitutional right. However, it did not give a final opinion on this issue, because another five-judge bench of the Supreme Court had already decided on this matter in the Kuldip Nayar case.
In a separate concurring judgment, Justice Ajay Rastogi took it a notch further and said that the right to vote is not merely a constitutional right, but “a component of Part III (fundamental rights chapter) of the Constitution as well”.
He observed that 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.
Justice Rastogi then observed that 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 freedom of speech and expression).
He added that the right to vote is also a reflection of Article 21 (right to life and personal liberty) of the Constitution, because it 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”.
Lastly, he also centered the right to vote around articles 15 (prohibition of discrimination on grounds of religion, race, caste, sex or place of birth) and 17 (abolition of untouchability) of the Constitution, observing that historically, “the right to vote was denied to women and those who were socially oppressed”, and that our Constitution took the “visionary step” of extending the franchise to everyone.
Therefore, he said, the right to vote is a fundamental right. He went on to observe, “In that way, the right to vote enshrines the protection guaranteed under Article 15 and 17. Therefore, the right to vote is not limited only to Article 326, but flows through Article 15, 17, 19, 21. Article 326 has to be read along with these provisions. We, therefore, declare the right to vote in direct elections as a fundamental right, subject to limitations laid down in Article 326.”
SC cited 1982 judgments
The Supreme Court’s judgment Monday cited the 1982 judgment, which viewed the right to vote as a statutory right.
It asserted that, “The elector or voter’s right to know about the full background of a candidate — evolved through court decisions — is an added dimension to the rich tapestry of our constitutional jurisprudence.”
Relying on this, the Supreme Court felt that if Patil’s contentions were accepted, it would lead to a denial of a full-fledged trial, based on the acknowledgement that Patil did not suppress material facts.
(Edited by Richa Mishra)
Also Read: Should children be allowed to vote? Why arguments against it don’t hold much ground