SIR Disqualifications: Congress Makes Strong Pitch for Declaring “Right to Vote” a Fundamental Right

Rohit Kumar

NEW DELHI, June 21: In view of the large scale arbitrary disqualification of voters ordered by the Election Commission of India under the “Special Intensive Revision” of the voters list in different states, highest being in West Bengal so far where the disqualification had reached an “astronomical number,” the Congress on Sunday made a strong pitch for making the right to vote a fundamental right.

The party was of the view that making the right to vote a fundamental right would be a powerful step in putting in place safeguards against voter suppression or arbitrary disqualifications.

Congress leader Jairam Ramesh said the ECI’s “blatantly partisan functioning” which was working only at the “behest” of the Prime Minister Narendra Modi and the Union Home Minister Amit Shah have been brutally exposed and now it was time to elevate the right to vote as a fundamental right that would offer it the highest level of judicial review and protection.

The Constituent Assembly had set up an Advisory Committee on Fundamental Rights, Minorities and Tribal and Excluded Areas under the Chairmanship of Sardar Patel. In its meeting held on April 21-22 1947, there was an animated discussion on making the right to vote a fundamental right with Dr Ambedkar and Babu Jagjivan Ram arguing strongly in its favour, Mr Ramesh recalled.

Sardar Patel, C. Rajagopalachari, and some others took the position that if the right to vote were made a fundamental right, the princely states may be reluctant to join the Indian Union and that it is enough to provide for a universal adult franchise in the Constitution, Mr Ramesh said.

“Sardar Patel himself took the position that universal adult franchise was, in itself, an implicitly fundamental right. This is the background to Article 326 which provides for elections based on universal adult suffrage,” he said. Over the past seven decades there has been a continuing debate on whether the right to vote is a statutory right provided by the Representation of People Act, 1951 or is an explicit fundamental right, he said.

“Different views have been expressed. Most recently, Justice Ajay Rastogi, in a dissenting opinion in the Anoop Baranwal vs Union of India judgment of March 2023 held that the right to vote is a fundamental right,” Mr Ramesh pointed out. The Supreme Court has itself recognized that voters have a Constitutional and fundamental right to know the criminal antecedents of candidates, their financial interests, and sources of political funding, he said.

“It has protected ballot secrecy and recognized the right to reject all candidates through NOTA. It is, therefore, all the more anomalous that the right to vote remains only a statutory right. All surrounding rights have been declared fundamental but the core without which the former cannot exist still remains statutory,” Mr Ramesh argued.

“With the blatantly partisan functioning of the Election Commission of India working at the behest of the Prime Minister and the Union Home Minister having been brutally exposed, it is now time to elevate the right to vote as a fundamental right that would offer it the highest level of judicial review and protection,” he said.

“It would be a powerful step in putting in place safeguards against voter suppressions or arbitrary disqualifications that have taken place in different states in astronomical numbers under the SIR (special intensive revision) process. It would also mean greater Supreme Court vigilance over the functioning of the Election Commission,” Mr Ramesh said.

Mr Ramesh pointed out that on Friday a two-judge bench of the Supreme Court declared the right to walk on a footpath was a fundamental right of the citizens under the Constitution. “The Supreme Court ruled that the right to walk on a demarcated footpath is a fundamental right. How about declaring the Right to Vote also a fundamental right, as it is of paramount importance in order to save Indian democracy from its present “death spiral,” he said.

In a significant verdict, the top court held that this right shall have priority over motorized vehicles on demarcated paths and it forms part of the right to movement guaranteed under Article 19 (1) (d) and other fundamental rights, including Article 21 (right to life and liberty). A Bench of justices PS Narasimha and AS Chandurkar held that a citizen’s fundamental right to walk on a demarcated footpath was primary and shall have priority over movement by motorized vehicles.

The debate over declaring right to vote a fundamental right had arisen even during the hearing on the petitions against SIR exercise of electoral rolls in Bihar. One of the questions that has arisen during this debate has been the legal status of the ‘right to vote.’

Natural rights are inherent and inalienable rights that are bestowed by nature on individuals. Right to life and liberty are considered to be natural rights. Indian courts may decide that a natural right is embodied in a fundamental right, but they do not directly enforce any natural right. Fundamental rights enumerated and guaranteed in Part III of the Constitution secure equality and liberty which are enshrined in the Preamble. The state is prohibited from making laws that violate these rights. They are directly enforceable in the Supreme Court under Article 32 of the Constitution.

Constitutional rights are contained in the Constitution but outside of Part III. These rights include right to property, free trade, and no taxation without the authority of law. These rights are operationalized through Union and State legislations aligning with the constitutional mandate. They are enforceable in a High Court under Article 226 or as per the legal process in the laws that operationalise them.

Statutory or legal rights are provided and amended by ordinary laws of Parliament or State legislation. Examples include right to work under the MGNREG Act; rights of scheduled tribes under the Forest Rights Act; right to subsidized food grains under the National Food Security Act etc. These are enforceable as per the legal process in the laws that provide these rights.

Article 326 of the Constitution grants every citizen the right to vote, without any discrimination. It provides that every citizen, who is not less than 18 years of age on such date as may be fixed by law and is not otherwise disqualified under the Constitution or any law on certain grounds, shall be entitled to be registered as a voter.

The laws enacted by Parliament in this regard are the Representation of the People Act, 1950 (RP Act, 1950) and the Representation of the People Act, 1951 (RP Act, 1951). Section 16 of the RP Act, 1950 disqualifies a non-citizen from being enrolled in the electoral roll. Section 19 of the same law requires that the person is not less than 18 years of age on the qualifying date and is ‘ordinarily resident’ in a constituency.

Section 62 of the RP Act, 1951 provides the right to vote to every person whose name is entered in the electoral roll of a constituency. It further specifies that this right shall not be exercisable by a person who is disqualified under the RP Act, 1950 or is in prison.

The legal status of the right to vote has been a subject matter of debate in various cases in the country. In the N.P.Ponnuswami case (1952), a Constitution Bench of the Supreme Court held that the right to vote was a statutory right and subject to limitations imposed by it. 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 simple statutory right. Subsequently in many cases, the same ratio was followed and upheld by the court. In the PUCL case (2003), Justice PV Reddy observed that the right to vote, if not a fundamental right, is certainly a ‘constitutional right.’

However, a Constitution Bench of the Supreme Court in the Kuldeep Nayar case (2006), again held that right to vote is only a statutory right. In the Raj Bala case (2015), a division bench of the Supreme Court, based on the ratio in the PUCL case, held that the right to vote is a constitutional right. However, in the Anoop Baranwal case (2023), the majority opinion, reiterated the judgment in the Kuldeep Nayar case, that the right to vote is only a statutory right. Hence, the current legal status of the right to vote is that it is a statutory right.

Justice Ajay Rastogi, in his partial dissent in Anoop Baranwal, noted that the right to vote is an expression of the choice of the citizen, which is a fundamental right under Article 19(1)(a). Right to vote is intrinsic to free and fair elections that is part of the basic structure of the Constitution. Even if not considered a fundamental right, this right originates from Article 326 of the Constitution and is shaped by statutes made by Parliament. Considering these factors, the Supreme Court may consider elevating the status of right to vote into a constitutional right.