Is Voting a Statutory Right or a Fundamental Right? Revisiting the Debate in Indian Democracy

In a country like India, where democracy is deeply embedded in the roots of its constitutional and societal framework, “Right to vote” is more than just a formal exercise. It is the bedrock of participatory governance. As controversies emerge around the integrity of elections, use of Electronic Voting Machines (EVMs) and alleged electoral malpractices in recent times, the conversation around the legal nature of the right to vote has once again taken centre stage. This has led to a critical reevaluation of whether the right to vote should continue to be classified as merely a statutory right or elevated to the status of a fundamental right under the Constitution.

Traditionally, Indian jurisprudence has treated voting as a statutory right. This position was firmly established in the landmark case of N.P. Ponnuswami vs. Returning Officer (1952), where the Supreme Court held that the right to vote is not a fundamental or constitutional right but a right granted by legislation specifically under Section 62 of the Representation of the People Act, 1951.

This interpretation was reaffirmed by several later rulings, including the Jyoti Basu case (1982) where the Court stated that “the right to vote is neither a fundamental right nor a common law right but is purely a statutory right.” The Kuldip Nayar case (2006) also echoed this stance as did the more recent Anoop Baranwal case (2023), which primarily dealt with electoral reforms but touched upon the statutory framework of electoral rights.

However, an alternative and more progressive interpretation emerged in People’s Union for Civil Liberties (PUCL) vs. Union of India (2003). In this landmark judgment, the Supreme Court recognised the right to know the background of electoral candidates as part of the voter’s freedom of expression under Article 19(1)(a). This brought in the idea that while casting a vote may be statutory, the freedom to make an informed choice is constitutional.

This view was further explored in Rajbala vs. State of Haryana (2015), where the Court again acknowledged the close nexus between democratic participation and constitutional rights. Very recently, Justice Ajay Rastogi, in a significant dissenting opinion, argued that the right to vote must be seen as not only a statutory or constitutional right but also a Fundamental Right. According to him, the expression of political opinion through voting is inherently linked to freedom of expression under Article 19(1)(a).

Why Voting Should Be a Fundamental Right?

Recognising voting as a Fundamental Right would be a transformative move for Indian democracy and would offer several long-term benefits in the following ways:

1. Strengthening Democratic Foundations: Elevating the right to vote to fundamental status underscores its centrality in democratic governance. It would affirm that democracy is not merely procedural but participatory and that citizen engagement is not optional but essential.
2. Enhanced Judicial Review and Accountability: If voting becomes a fundamental right, any restrictions, manipulations or disenfranchisement could be directly challenged under Article 32 or Article 226. This would provide a stronger legal recourse to citizens and enhance judicial oversight over electoral processes.
3. Safeguarding Free and Fair Elections: Given the rising concerns about electoral fraud, voter suppression and manipulation of EVMs, recognising the right to vote as fundamental would compel stricter scrutiny and higher standards of electoral integrity. It would also push for reforms like transparency in campaign financing and better voter education.
4. Empowering the Marginalised: Communities that are socially or economically marginalised often face hurdles in exercising their vote, be it due to lack of access, coercion or procedural barriers. A fundamental right status would place a constitutional obligation on the state to ensure universal and equitable access to the ballot.
5. In Sync with Global Democratic Norms: In many democracies, voting is considered a constitutional or fundamental right. For instance, it is considered a fundamental right in Germany, South Africa & Nepal and constitutional in the US, Kenya, Philippines, Canada, France, Brazil, Argentina, Mexico & Australia. It is compulsory to vote in Australia. Aligning with these global standards would elevate India’s standing as a mature democracy that places its citizens at the centre of the political process.
6. Protecting Political Expression
   Voting is not just a mechanical act; it is an expression of political beliefs, hopes, and dissent. As such, it naturally falls within the ambit of freedom of speech and expression, making a strong case for its inclusion under Article 19 protections.

Conclusion: A Call for Constitutional Recognition

In conclusion, while statutory provisions under the Representation of the People Act provide the procedural framework for elections, the essence of voting goes far beyond legislation. It touches the core of democratic participation and political expression. In a democracy that aspires to be inclusive, transparent and accountable. It is only fitting that the right to vote be recognised as a Fundamental Right. Such a move would not only empower Indian citizens but also act as a bulwark against the erosion of democratic values. It would ensure that every voice counts, every vote matters, and that the Indian democracy continues to flourish with the strength of its people.