The “Fundamentals” of the Right to Vote and its Constitutional Status

Abstract

The will of the people shall he the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.

—Article 21, Universal Declaration of Human Rights, 1948

The right to vote has become a well-accepted part of international law¹ and Indian constitutional jurisprudence. The historical and the jurisprudential foundations of this right have been largely ignored by public discourse. As demonstrated by the controversies over the Presidential elections in the United States of America in 2000 and the subsequent judgment of the Supreme Court of United States in Bush v. Gore², the citizenry can ill-afford a sense of complacency over this valuable right. The precise status of the right to vote has serious ramifications in determining the future of a polity.

The verdict of the Supreme Court of India in Peoples Union for Civil Liberties v. Union of India³ puts into perspective the status of the right to vote in India. The Apex Court struck down The Representation of the People (3^rd Amendment) Act, 2002⁴ on the ground of the violation of the fundamental right of the voters to know the antecedents of candidates contesting elections to legislatures under Article 19(1)(a) of the Constitution of India. The Court reaffirmed its earlier ruling in Union of India v. Association for Democratic Reforms⁵.

 A less highlighted facet of the judgment was the difference of opinion between the Judges over the constitutional contour of the right to vote, as distinct from the right to information of the voters. Though concurring on the operational part of the judgment, they had separate views on the status accorded to the right to vote in the Indian constitutional framework.

 MB Shah, J. observed (for himself and on behalf of DM Dharmadhikari, J.):

“there cannot be any dispute that the right to vote or stand as a candidate for election and decision with regard to violation of election law is not a civil right but is a creature of statute or special law and would be subject to the limitations envisaged therein.”⁶

 In contrast, P Venkatarama Reddi, J., concurring with the invalidation of the impugned amendments, differed about the status of the right to vote in our constitutional structure. He remarked:

“..The right to vote, if not a fundamental right, is certainly a constitutional right. The right originates from the Constitution and in accordance with the constitutional mandate contained in Article 326…”⁷

This research paper seeks to examine the status enjoyed by this right under international instruments and in various jurisdictions. It also explores the constitutional treatment of the right to vote in India, in light of the various positions taken by the Indian judiciary.

The full article can be read on SCC Online through this link.

Endnotes:

*The abstract of this article has been published with kind permission of SCC Online.

¹ Alexander Kirshner, “The International Status of the Right to Vote”, at <http://www.fairvote.org/private/Kirshner.doc>, last visited 18^th July 2004.

² 531 U.S. 9, 104 (2000).

³ (2003) 4 SCC 399 : AIR 2003 SC 2363.

⁴ This amendment was introduced in the aftermath of the judgment in Union of India v. Association for Democratic Reforms, (2002) 5 SCC 294, where the Election Commission was directed by the Supreme Court to ask for information on affidavit from each candidate seeking election to parliament or a State Legislature as a necessary part of his nomination paper on:

(a) Whether the candidate is convicted, acquitted or discharged of any criminal offence in the past – if any, whether he is punished with imprisonment or fine.

(b) Prior to six months of filing of nomination, whether the candidate is accused in any pending case, of any offence punishable with imprisonment for two years or more, and in which charge is framed or cognizance is taken by the Court of law. If so, the details thereof.

(c) The assets (immovable, movable, bank balance, etc.) of a candidate and of his/her spouse and that of the dependants.

(d) Liabilities, if any, particularly whether there are any over dues of any public financial institution or Government dues.

(e) The educational qualifications of the candidate.

Though the amendment was purported to implement the aforesaid judgment, it significantly differed in its substance. The candidate was not required to disclose the cases in which he has been acquitted or discharged of criminal offence, his assets and liabilities and his educational qualifications. Section 33-B of The Representation of the People (3^rd Amendment) Act, 2002 provided that: “Notwithstanding anything contained in any judgment, decree or order of any Court or any direction, order or any instruction issued by the Election Commission, no candidate shall be liable to disclose or furnish any such information, in respect of his election, which is not required to be disclosed or furnished under the Act or the Rules made thereunder.”

⁵ (2002) 5 SCC 294.

⁶ supra n. 3, at 2390, para 59.

⁷ ibid at 2401, para 101. He further stated that though “…the right has been shaped by the statute…it is not very accurate to describe it as a statutory right”.