[Part I] Fundamental? Constitutional? Statutory? Understanding the nature of the Right to Vote in India

[In this two part post series, I shall be discussing the nature of the Right to Vote in India. In this part I shall provide an overview of the nature of rights in India and where does the Right to Vote fit.]

Elections are extremely important for any democracy as they allow the voters an opportunity to re-elect their leaders or give new ones a chance. These elections hold a special place in a Constitutional Democracy like ours as democracy is considered a part of our basic structure i.e. a facet that cannot be altered or taken away by the Parliament. India shall be witnessing the general elections next year and therefore a discussion on the laws that govern elections becomes crucial.

In this post I shall be discussing the cardinal ‘Right to Vote’ [“R2V”] and its nature i.e. whether the right is a Fundamental Right, Constitutional Right or a Statutory Right. One might logically argue that the right is an inalienable right given its recognition as a basic human right internationally,[1] however the position of law is unclear, requiring some clarity.

Understanding the nature of Rights in India:

Before the author attempts to answer the aforesaid questions, a discussion on the different types of rights becomes essential. The laws in India allow for three types of rights i.e. Fundamental Rights, Constitutional Rights and Statutory Rights/Legal Rights.

Fundamental Rights-
The Constitution of India (the supreme legal document of the country) guarantees to every citizen of the country* certain inviolable rights which cannot be taken away by the state. These rights find place in Part III of the Constitution and an individual is empowered to approach the High Court or the Supreme Court for enforcement of these rights via the route of Article 32 or Article 226. These rights inter alia include Right to Life, Right to Freedom of Speech, Right to Freedom of Movement, Freedom of trade and profession Right against untouchability etc. These rights are at the highest pedestal and cannot be taken away but can merely be restricted.

Constitutional Rights:
Apart from Fundamental Rights, the Constitution also contains several other rights in it, which find a place in the document excluding Part III. Citizens can enforce these rights by approaching the High Court or any special forum provided for in a statute [example Central Administrative Tribunal which is the forum for disputes concerning Public Servants, which are governed by Article 311]. A direct petition to the Supreme Court is not allowed for enforcement of these rights. These rights inter alia include the Right to Property, Right to enter into government contracts etc.

Statutory Rights:
The Constitution allows the Parliament to pass laws governing the citizens of India. In furtherance, there exist several statutes which impose duties on individuals and also vest them with certain rights. These rights emanating from a statute are called statutory rights. These rights can be enforced in Courts provided for in their establishing statute. Examples of these rights are the right to enter into contracts, the right to deductions under the Income Tax Act etc.

 Detailed differences between the three rights are tabulated below:

Grounds

Fundamental

Rights

Constitutional Rights

Statutory

Rights

Source

Part III of the Constitution of India

Any part of the Constitution (except Part III)

Any statute in India

Enforced Against

State as defined in Article 12

State as defined under Article 12

Against both state and private individual

Forum for Enforcement

Supreme Court or the High Court

High Court and other special forums (Example- Central Administrative Tribunals for Civil servants)

Forum provided for in the enabling Statute.

Example- Civil Court under the Code of Civil Procedure; Criminal Courts under the Code of Criminal Procedure

Possibility of Removal

The rights cannot be removed altogether but can be reasonably restricted

The rights can be removed by passing of a constitutional amendment i.e. passed in both houses with 2/3 members present and voting

The rights can be taken away by repealing the statute or passing a new law by a simple majority in the Parliament

Examples

Right to Life, Right to Freedom of Speech and Expression, Right to Freedom of Worship etc.

Right to Property, Right to enter into government contracts etc., Right to sue the government, Parliamentary Privileges etc.

Right to enter into a contract, right to form a company etc.

[In other words, the importance of these rights is in the following order i.e. Fundamental Rights>Constitutional Rights>Statutory Rights]

Nature of the R2V:
Under the laws in India, there are three provisions which deal with the right of an individual to vote.

First, Article 19(1)(a) of the Constitution which guarantees every citizen the fundamental right to freedom of speech and expression. A school of thought believes that by voting, a person expresses his decision i.e. whether he agrees with a political party or not, and hence the R2V should be treated as a facet of this fundamental right.

Second, Article 326 of the Constitution. The article reads:
“326. The elections to the House of the People and to the Legislative Assembly of every State shall be on the basis of adult suffrage; that is to say, every person who is a citizen of India and who is not less than eighteen 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.”

The article provides that a citizen of India, aged above 18 years and not disqualified under any law, shall be entitled to get registered as a voter. The article although does not in clear terms say that a citizen has a right to vote,  it does provide so indirectly by using the term ‘adult suffrage’ and listing down the conditions of who may be a voter.

Third, section 62 of the Representation of the People’s Act, 1951. The section reads:

62. Right to vote.—(1) No person who is not, and except as expressly provided by this Act, every person who is, for the time being entered in the electoral roll of any constituency shall be entitled to vote in that constituency.

The article categorically provides for the Right to Vote to a person on fulfillment of certain conditions given in the section.

Given that the R2V can be traced to three possible sources, an air of uncertainty has prevailed regarding its actual source as the nature of its source would change the relevance of the right (as discussed previously in this post).

Recently, the Law Commission of India circulated a Draft Report on the possibility of simultaneous elections. The Report briefly discussed the nature of the right as well. It stated,

“The Apex Court had consistently held that Right to Vote, though fundamental to a democracy, is, anomalously enough, not a Fundamental Right but a Constitutional Right, a Common Law right or a civil right.” (par.6.33)

In the opinion of the author, such an observation by the Law Commission is incorrect and against the judicial decisions on this point. The judgment which holds the position of law on this pertinent question is Kuldip Nayar v. Union of India [AIR 2006 SC 3127] [hereinafter ‘Kuldip Nayar’] wherein a Constitution bench (five judges) of the Supreme Court set the issue to rest.

The Court in the said case held that the R2V is neither a fundamental right nor a constitutional right but instead a simple statutory right. The reasoning of the Court was that the RP Act, provides for a specially carved out right, something which Articles 19(1)(a) and 326 fail to do.

However, despite the Court clarifying the position of law, there have been decisions by smaller benches, holding to the contrary. The leading judgment in this regard is Rajbala v. State of Haryana [AIR 2016 SC 33] [hereinafter ‘Rajbala’].

The Court in this case relied on the decision of PUCL v. Union of India [AIR 2003 SC 2363], wherein Justice Reddi in a concurring opinion [concurring opinions in a judgment are mere obiter dicta and not binding law] termed the R2V as a constitutional right. Interestingly, the Court mistook this concurring opinion as the majority verdict and reached a different conclusion than the one in Kuldip Nayar. The Court in Rajbala even failed to discuss the judgment of Kuldip Nayar. Given that Kuldip Nayar was a five judge bench decision and Rajbala a division bench decision, the latter becomes per incuriam i.e. bad in law for not following the judgment of a larger bench.

Therefore, the current position of law remains to be Kuldip Nayar.

[In the next part of the post, I shall be analyzing the reasoning of terming R2V as a statutory right and the repercussions it carries.]

[1] The Right to vote is recognized as basic human rights under International Conventions like the Universal Declaration of Human Rights [Article 21] and the International Convention on Civil and Political Rights [Article 25].

* The Constitution also guarantees certain Fundamental Rights to foreigners in India as well, namely the Right to Equality and the Right to Life.