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The article is authored by Akash Krishnan, a student from ICFAI Law School, Hyderabad. It discusses in detail whether the Right to Vote is a right that arises out of a statute or is it a right that emanates from the Constitution itself. It further discusses the debate surrounding the inclusion of the Right to Vote as a fundamental duty.

Introduction

The Right to Vote is one of the most important rights in a democratic country and it is imperative for the functioning of the electoral system of the country in a free and fair manner. This Right can be divided into two parts, i.e., active voting rights and passive voting rights. The term active voting rights mean the right of the citizens of the country to elect representatives to the legislative bodies of the country and the term passive voting rights deal with the Right to Vote for those individuals who are standing in the elections.

One of the terms that have been associated with the Right to Vote is free suffrage. In simple words, free suffrage means the right of individuals to make a free choice among the candidates of various political parties so as to elect their representatives.  Free suffrage also includes the right of an individual to cast his vote freely without any external barriers or pressure. Freedom in casting votes is one of the most important principles that is followed in India.

In light of this brief background, let us not try and analyse whether the right to cast a vote in elections is a fundamental right guaranteed under the Constitution or is it merely a statutory right. This question was raised before the Hon’ble Supreme Court in People’s Union for Civil Liberties (PUCL) and Ors. vs. Union of India (2003). The Supreme Court herein had held that the Right to Vote is a constitutional right. Let us now discuss this case in detail.

People’s Union for Civil Liberties vs. Union of India (2003)

Brief facts

The Supreme Court Union of India vs. Association for Democratic Reforms (2002) while deciding the question about the right to information of a voter to know antecedents of a candidate had held that candidates should furnish information regarding their involvement in criminal cases, their educational qualifications, assets, liabilities etc.

Following this decision, the Representation of the People (3rd Amendment) Act, 2002 was passed. Under this amended Act, new provisions, i.e., Section 33A and Section 33B were inserted. These provisions invalidated the judicial decision and the requirement of disclosing the information was set aside. The validity of the non-incorporation of the directions of the Supreme Court in Amending Act was challenged in the present case.

Provisions involved

Right to Information

Section 33A of the Amendment Act provided the information that a candidate should disclose in his nomination paper. The disclosures to be made were as follows:

  1. Details about any offence for which he is accused that is punishable with imprisonment for two years or more in a pending case in which a charge has been framed by the court of competent jurisdiction.
  2. Details about an offence for which he has been convicted and sentenced to imprisonment for one year or more.

The candidate should also submit an affidavit stating that the contents of the nomination paper are true. This affidavit is displayed by the election officer at a conspicuous place in his office so that all the electors of his constituency are aware of the disclosures.

Candidate to furnish information only under the Act and the rules

Section 33B stated that no candidate will be liable to disclose or furnish any such information, in respect of his election which is not required to be disclosed or furnished under this Act or the rules made thereunder irrespective of the fact that a judgment or decree has been passed mandating such disclosure.  

The contentions of the Respondent

The Union contended that the right to vote and the right to be elected in elections are both statutory rights. There is no fundamental right granted to the citizens to cast a vote nor can any citizen claim a fundamental right for contesting in elections. In the absence of such a fundamental right, a citizen cannot claim the fundamental right to antecedents or assets of a candidate who is contesting in the elections.

In light of the same, the Counsel for the Union cited the case of Jyoti Basu and Ors. vs. Debi Ghosal and Ors (1982). Herein, the Supreme Court had observed that the right to cast a vote in elections is neither a fundamental right nor a right under common law. It is only a statutory right. The right to be elected and the right to dispute an election are also statutory rights.

The Union further contended that the Courts cannot strike down a law just because it deems it to be unjustified. In light of the same, the Union cited the case of Dr. P. Nalla Thampy Terah vs. Union of India and Ors (1985), wherein the Supreme Court had held that only if the provisions of the law violate the Constitution it can be struck down by the Court. The Court further observed that it does not have the power to lay down policies in matters pertaining to elections.

Issues

In light of the arguments raised by the Union, the Court concluded that for determining the validity of an Act, it should be checked if the provisions of the Act are infringing any of the provisions of the Constitution. In light of the same, the Court framed the following issue:

  1. Whether the Right to Vote is a Constitutional right?
  2. Whether the citizens have a right to know the antecedents of the candidates standing in the elections?

Observations of the Supreme Court

  1. The contention that as there is no specific fundamental right conferred on a voter by any statutory provision to know the antecedents of a candidate is unsound.
  2. The right to know the antecedents of a candidate standing in an election is an independent right and does not depend on any statute.
  3. A voter is the first citizen of this country and apart from certain statutory rights, he also has multiple fundamental rights guaranteed under the Constitution.
  4. For casting a vote intelligently, it is necessary that the voters make an informed choice. An informed choice can only be made if the voters are completely aware of the candidate they are voting for. The Right to Vote would be meaningless unless the citizens are well informed about the antecedents of a candidate.
  5. The Right to Vote is based on two principles/factors:
  • The voter should be able to form an opinion about the candidate
  • The voter should be allowed to freely cast his vote in favour of a candidate of his choice.
  1. The first principle, i.e., the formation of an opinion about the candidate is not possible if the voter does not have sufficient information about the candidate. Only if essential information like that of criminal antecedents and assets of the candidate is disclosed can the voter’s debate on their merits and demerits. The availability of the necessary information about the candidate will promote the freedom of speech and expression both from the point of view of imparting and receiving the information and would lead to the preservation of the integrity of the electoral process.
  2. Coming to the second principle, the Right to Vote for a candidate of one’s choice is an essential part of democracy.  The Court observed that the idea of including eight to vote as a fundamental right was discussed by the Constituent Assembly but was not adopted. However, the concept of adult suffrage was included under Article 326 of the Constitution.
  3. When an individual goes and casts his vote freely in the polling booth, he exercises his freedom of expression that is guaranteed under Article 19(1)(a) of the Constitution of India.
  4. Freedom of voting is a separate right as compared to the Right to Vote. It is part of the freedom of expression and therefore the complementary right to have adequate information about the candidate is annexed to it.
  5. The Right to Vote, if not a fundamental right, is certainly a constitutional right. The right originates from the Constitution and is in accordance with the constitutional mandate contained in Article 326.
  6. In light of the same, it was held that the Right to Vote is a constitutional right.   
  7. It was also held that the provisions of the Amendment Act were unconstitutional. 
new legal draft

Right to Vote as a fundamental duty

What are fundamental duties

Fundamental duties can be termed as statutory duties that are not enforceable by law. The Constitution of India has listed 11 fundamental duties. Interestingly, at the time the Constitution was enacted, no fundamental duties were provided under it. 10 of these fundamental duties were added by the Constitution 42nd Amendment Act 1976 and the 11th duty was added by the Constitution 86th Amendment Act 2002. It is important to note that even though fundamental duties are not enforceable by law, they may be taken into consideration by the courts while deciding any issue relating to it.

Whether the Right to Vote is a fundamental duty

In 2015, a petition was filed by Satyaprakash in the Supreme Court wherein he contended that every citizen of this country who is capable of casting a vote should be mandatorily made to cast a vote. He cited the examples of Argentina, Brazil and Belgium wherein voting was made compulsory to all the citizens. He also cited the example of the state of Gujarat and contended that the State mandates compulsory voting on part of all the citizens in the state.

In light of these arguments, the Supreme Court had asked the Centre to file a response. A response for the same was filed in 2015 wherein the Union Ministry of Law and Justice stated that if a regime of compulsory voting is introduced, it would result in the creation of an undemocratic environment in the country. The Right to Vote was already recognised by the Supreme Court. The Union contended that the Right to Vote also includes the right not to vote. The Union also cited the Law Commission Report on Electoral reforms wherein the Commission had noted that the Right to Vote cannot be imposed as a fundamental duty because such an action would be expensive, illegitimate and difficult to implement.

Opinion of Justice Reddy

As part of a student procession and gathering that was carried out on 25th January in Hyderabad, Justice Lokayukta B. Subhashan Reddy gave his opinion regarding the inclusion of the Right to Vote as a fundamental duty. While addressing the gathering he stated that the number of fundamental duties should be increased so as to include within its ambit the fundamental duty to cast a vote during elections. He further stated that the democracy in India could be deemed to be complete only if the citizens are made to exercise their voting rights compulsorily.

Opinion of the former Law Minister

Former Law Minister, Mr. Ravi Shankar Prasad while addressing a press conference in 2016 had shared his personal opinion on the matter of inclusion of the Right to Vote as a fundamental duty. He stated that a new fundamental duty must be added to the Constitution under which every citizen is made to vote.

At that time, there was a private member’s bill that was pending in the Lok Sabha. This bill sought to make voting a fundamental duty. However, the Government, the Election Commission and the Law Commission had argued against this proposition.

Conclusion

The Court in PUCL vs. Union of India had ended an age-old debate surrounding the status of the Right to Vote. A right that was recognised as a statutory right by a smaller bench of the Supreme Court itself prior to this case was now recognised as a Constitutional right. In doing so, the Court relied on Article 19(1)(a) and held that the right to choose a candidate and cast a vote is a form of expression and thus protected under Article 19(1)(a).

The question as to whether or not the right to vote should be made a fundamental duty is still being debated. Although a firm negative stand has been taken by the Government and the Election Commission in this regard, one will have to wait and see whether this stand changes in the coming times.

References 

  1. https://www.hindustantimes.com/india-news/voting-not-a-fundamental-duty-can-t-be-made-compulsory-centre-to-sc/story-13xHiGsuiIEqsxaFqh7xBI.html 
  2. https://economictimes.indiatimes.com/news/politics-and-nation/make-voting-fundamental-duty-law-minister-says-in-personal-opinion/articleshow/55604157.cms?from=mdr  
  3. https://humanrights.gov.au/our-work/rights-and-freedoms/right-take-part-public-affairs-voting-rights-and-access-public-service  
  4. https://www.scconline.com/blog/post/2021/01/25/the-fundamentals-of-the-right-to-vote-and-its-constitutional-status/.

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