ECI Case| Right To Vote A Part Of Fundamental Rights, Says Justice Rastogi; Majority Judgment Opines It's A Constitutional Right

The Supreme Court’s decision to reform the process of making appointments to the Election Commission has once again sparked the debate surrounding the status of citizens’ right to vote.

The Constitution bench comprising Justices KM Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and CT Ravikumar was of the view that right to vote is a Constitutional right.

The four judges in majority however refrained from making a final judicial declaration in this regard, citing the 2006 judgment in Kuldip Nayar vs Union Of India, where a bench of coordinate strength had held that “there is no Constitutional Right”.

“What is important is that the Court noted in Anukul (supra) that holding of free and fair elections constitute a basic feature of the Constitution and approved of the view apparently that the Right to Elect is fundamental to democracy. Even if it is treated as a statutory right...the right is of the greatest importance and forms the foundation for a free and fair election, which, in turn, constitutes the right of the people to elect their representatives. We would for the purpose of the lis in question rest content to proceed on the said basis,” Justice Joseph, writing for the majority said.

In his concurring opinion however, Justice Rastogi observed that right to vote is not merely a constitutional right, but a component of Part III of the Constitution. He goes on to state that right to vote is not limited only to Article 326, but flows through Article 15, 17, 19, 21 of the Constitution.

“In history, the right to vote was denied to women and those were socially oppressed. Our Constitution took a visionary step by extending franchise to everyone. In that way, the right to vote enshrines the protection guaranteed under Article 15 and 17...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. 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 vote 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. In that sense, it is a reflection of Article 21.”

Justice Rastogi attempted to draw strength from the Constituent Assembly Debates which shows that right to vote was initially considered as a fundamental right. However, it was shifted to another constitutional provision as the founders did not want to “offend” the Princely States, with whom they were negotiating to be a part of India.

“Otherwise, they had stressed the importance of the right to vote and universal adult franchise.Seventy-five years after Independence, we have the opportunity to realize their absolute vision by recognizing what they could not due to socio-political circumstances of their time", Justice Rastogi opined.

Significantly, the majority took note of the fact that the precedents which held that right to vote is not a fundamental right were not really concerned with this as a primary issue.

"A Bench of six learned Judges in N.P. Ponnuswami v. Returning Officer, Namakkal, in the context of Article 329(b) held that the right to vote was a creature of a statute...The Court really was not concerned with the question as to whether Article 326 provided for a Constitutional right to vote.

Thus, the four judges advanced to "demystify" Article 326 of the Constitution. They found that if a person is a citizen of India and not below eighteen years of age, and if he does not incur the disqualifications (prescribed in Article 326), he becomes entitled to be entered in the electoral roll.

"Such person, as is indicated in Article 326, indeed, has a right, which can be said to be a Constitutional Right, which may be right subject to the restriction. Section 62(1) of the 1951 Act, as we have noticed, gives also the Right to Vote to such a person. Any other interpretation would whittle down the grand object of conferring adult suffrage on citizens."