The Supreme Court of India is hearing cases challenging Bihar’s Special Intensive Revision (SIR) of electoral rolls. This process aims to remove non-citizens and individuals illegally enrolled from the voter list, raising questions about the legal status of the right to vote.

Historical Context and Constitutional Provision

• Universal Adult Suffrage: During the formation of the Constitution, the principle of Universal Adult Suffrage was adopted with minimal debate, initially setting the voting age at 21, which is now 18 (by 61st Constitutional Amendment in 1988).
• Right to Vote: Article 326 of the Constitution grants the right to vote to every citizen who is 18 years or older, without discrimination, unless they are disqualified by law (e.g., due to criminal proceedings).

Classification of Rights

• Natural Rights: These are inherent and inalienable rights, such as the Right to Life and Liberty, which often require legal enforcement to be upheld.
• Fundamental Rights (Part III): These rights protect citizens against constitutional violations and are enforceable directly under Article 32.
• Constitutional Rights (Outside Part III): Rights enshrined in the Constitution but outside Part III, such as the Right to Property, are enforceable through High Courts under Article 226.
• Statutory/Legal Rights: These rights are provided by Parliamentary or State legislation, such as the Representation of People Acts, MGNREG Act, or the National Food Security Act, and are enforceable under the laws that grant them.

Voting Laws in India- Representation of the People Acts

• Representation of the People Act, 1950 (RP Act, 1950):
  • Section 16: Only citizens can be enrolled in the electoral roll; non-citizens are disqualified.
  • Section 19: A voter must be at least 18 years old on the qualifying date and ordinarily resident in the constituency.
• Representation of the People Act, 1951 (RP Act, 1951):
  • Section 62: Grants the right to vote to every person whose name is in the electoral roll.
  • Exclusions: The right cannot be exercised by those disqualified under RP Act, 1950 or incarcerated persons.

Evolution of the Right to Vote’s Status (Judicial Stance)

• N.P. Ponnuswami Case (1952): A Constitution Bench of the Supreme Court held that the right to vote is a statutory right and subject to limitations imposed by it
• 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.
• PUCL Case (2003) and Rajbala Case (2015): Observed that the Right to Vote, if not a fundamental right, is certainly a ‘constitutional right.’
• Kuldeep Nayar Case (2006): Right to vote is only a statutory right.
• 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.
• Anup Baranwal Case (2023): The majority opinion reiterated the judgment in the Kuldip 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.
• Dissenting Opinion (Anup Baranwal Case, 2023): Justice Ajay Rastogi partially dissented, asserting that the right to vote reflects citizens’ choice under Article 19(1)(a), is vital for free and fair elections, and, even if statutory, may merit recognition as a constitutional right.

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Conclusion

The right to vote is vital for democracy and free elections. Elevating it to a constitutional right would strengthen electoral integrity, protect citizens’ choice, and clarify its legal status, while retaining statutory safeguards under the Representation of the People Acts.

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