Should Voting be a Fundamental Right?

Source: The Hindu 

Introduction 

Recently, an Indian Express investigation revealed an unprecedented rift within the three-member Election Commission of India (EC). Election Commissioners Sukhbir Singh Sandhu and Vivek Joshi reportedly recorded 14 objections over 10 months against Chief Election Commissioner Gyanesh Kumar, over alleged unilateral changes to rules, voter additions and deletions, and centralised data access without the Commission's full approval. 

• The report also found that 97 eligible voters from Goa were excluded from the electoral roll because the centralised ECINet software prevented ground-level Electoral Registration Officers (EROs) from reversing the deletions.  
• The consequences go beyond the loss of voting rights, since several State schemes, including the Goa Mediclaim Scheme covering treatments such as dialysis, transplants and chemotherapy, use electoral rolls to establish eligibility. 
• The episode has cast fresh light on the legal status of the right to vote and the working of India's electoral machinery.

What Shaped Adult Suffrage in India? 

• Many Western democracies extended the franchise gradually. Influenced by the belief that voting should be reserved for the "enlightened", the U.K. initially restricted voting to male property owners. Universal male suffrage came only in 1918, and women gained the vote in 1928. 
• In the U.S., the 15th and 19th Amendments extended voting rights to African Americans (1870) and women (1920), yet poll taxes and literacy tests continued to disenfranchise many for decades. 
• India, in contrast, adopted immediate universal adult suffrage. Article 326 of the Constitution granted every adult citizen the right to vote regardless of gender, caste, religion, education or property. 
• This commitment was reinforced by the Supreme Court, notably in Kesavananda Bharati v. State of Kerala (1973), which recognised democracy as part of the basic structure of the Constitution. 
• The vision was operationalised through two key laws:  
  • The Representation of the People Act, 1950 (RPA, 1950), which governs the preparation and revision of electoral rolls. 
  • The Representation of the People Act, 1951 (RPA, 1951), which regulates the conduct of elections, candidature and electoral offences. 
• The first Chief Election Commissioner, Sukumar Sen, faced with enrolling 173 million largely illiterate voters, introduced election symbols to make universal adult suffrage practically accessible.

What is the Legal Status of the Right to Vote? 

• Whether the right to vote is a statutory, constitutional or fundamental right determines how easily it can be altered, how it is enforced, and the level of legal protection it receives. 
• Although Dr. B.R. Ambedkar and K.T. Shah proposed including it among the fundamental rights, the Constituent Assembly's Advisory Committee rejected the idea. 
• Kuldip Nayar v. Union of India (2006): A Constitution Bench held that the right to elect is a statutory right under Section 62 of the RPA, 1951, and is neither a fundamental nor a constitutional right. 
• Rajbala v. State of Haryana (2015): A two-judge Bench described the right to vote as a constitutional right. However, the view of the larger Bench in Kuldip Nayar prevails. 
• Anoop Baranwal v. Union of India (2023): The Supreme Court declined to pronounce on the issue, treating it as settled by Kuldip Nayar. In his dissent, Justice Ajay Rastogi held that the right to vote is an expression of Article 19(1)(a) and reflects the essence of Article 21. This remains a minority view. 
• Even so, courts have regarded the right to vote as an inseparable part of democracy, since it enables citizens to shape governance, and have described it as a "democratic imperative".

Why Do We Need Accurate Electoral Rolls? 

• Free and fair elections depend on accurate electoral rolls. Mass omissions, ineligible inclusions, duplicates or incorrect entries undermine the "one person, one vote" principle by enabling impersonation, disenfranchisement or vote dilution. 
• Statutory and constitutional framework:  
  • Article 324 makes the EC the constitutional guardian of elections, with powers of superintendence, direction and control. 
  • Section 21 of the RPA, 1950 empowers the EC to prepare and revise electoral rolls. 
  • Section 19 of the RPA, 1950 entitles every citizen aged 18 or above, who is "ordinarily resident" in a constituency and not disqualified, to be registered. Ordinary residence implies genuine, continuous presence, not a temporary stay. 
  • The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 governs how the EC transacts business. Section 17 requires business to be conducted in accordance with the Act, and Section 18 allows procedure and allocation of business to be regulated by unanimous decision. Business is to be transacted unanimously as far as possible, and by majority where the Commissioners differ. 
• Judicial approach: Courts have held that only substantial, systemic errors that "materially affected" the election outcome compromise the sanctity of the electoral roll. Minor mistakes or isolated disenfranchisement are insufficient. 
• Lakshmi Charan Sen v. A.K.M. Hassan Uzzaman (1985): The Court held that the right to seek inclusion or raise objections is conferred on individuals, not political parties, but observed that parties should help ensure eligible voters are included and ineligible ones removed. 
• The Goa episode: The deletions complicate the "substantial versus isolated" binary relied on by courts. The 97 voters were dropped not through fraud but because the ECINet software denied EROs the power to reverse erroneous deletions. Although EROs flagged the anomalies to the Commission by email, the entries were not restored. This reflects a systemic failure built into the software's design and compounded by administrative inertia, rather than an isolated clerical error.

What Lies Ahead? 

• If the body constitutionally tasked with safeguarding the franchise is itself divided over unilateral action, leaving citizens to rely only on the EC's internal correction mechanisms or on a statutory right that Parliament can dilute, the right to vote remains precarious. 
• Many scholars argue that the right to vote cannot be merely statutory, as it flows from Article 326, and any regulating legislation must conform to Articles 325 and 326. Since "free and fair elections" and "democracy" are basic features of the Constitution, the legislature cannot impose irrational or unreasonable restrictions on it. 
• Justice Rastogi's dissent in Anoop Baranwal offers doctrinal ground for a larger Bench to revisit the question considered settled in Kuldip Nayar. 
• Elevating the right to vote to fundamental status would not dilute the EC's authority to purify rolls. It would instead subject that authority to the heightened standard of judicial review applicable to fundamental rights, ensuring that centralisation of electoral administration is weighed against the citizen's claim to be counted.

Conclusion 

The reported rift within the Election Commission and the wrongful exclusion of eligible voters in Goa expose the vulnerability of a right that, despite being central to Indian democracy, remains only statutory in law. While Kuldip Nayar continues to hold the field, the growing role of centralised software in electoral administration and the minority view in Anoop Baranwal strengthen the case for reconsideration. In a democracy where technology increasingly mediates the relationship between the voter and the ballot, the constitutional status of the right to vote can no longer rest on legislative grace alone.