Why in the News?
The Union Government has submitted before the Supreme Court that the ‘right to vote’ is distinct from the ‘freedom of voting’.
About the Case and Centre’s Affidavit:
- Petition: Filed by Vidhi Centre for Legal Policy and the Association for Democratic Reforms (ADR).
- Context: Concerns Section 53(2) of the Representation of the People Act (RPA), 1951, which allows uncontested candidates to be declared elected without polling.
- Core Challenge: Argues that uncontested elections deny voters the right to dissent through NOTA, violating Article 19(1)(a) of the Constitution.
- Centre’s Argument: Draws a distinction between the “Right to Vote” (statutory) and “Freedom of Voting” (fundamental right).
- Legal Basis:
- Right to Vote – Granted by Section 62 of RPA, 1951, subject to statutory limits.
- Freedom of Voting – A form of free expression under Article 19(1)(a), as held in PUCL v. Union of India (2003).
- Government’s Position: The freedom of voting exists only when a poll occurs; in uncontested elections, no poll means no expressive act under Article 19.
Legal Reasoning by the Government:
- Poll Dependency: Freedom of voting arises only during active polling; without a poll, no expressive right is engaged.
- Statutory Framework:
- Section 53(1) – Poll required when candidates exceed seats.
- Sections 53(2) & 53(3) – If candidates ≤ seats, no poll needed; candidate declared elected.
- NOTA’s Legal Status: NOTA is not a “candidate” under Section 79(b); it is merely an expression option, not an electoral participant.
- Administrative Rationale: Holding polls solely to include NOTA would waste resources and delay electoral outcomes.
- EC’s View: The Election Commission concurred, treating NOTA as a candidate would need legislative amendment.
- Empirical Data: Only 9 uncontested elections since 1951, making such instances rare exceptions in Indian democracy.
About Right to Vote in India:
- Overview: It is also known as suffrage, allows citizens to elect their representatives in democratic institutions.
- Constitutional Basis: Guaranteed under Article 326 of the Constitution of India, which provides for universal adult franchise.
- Eligibility: Every citizen of India aged 18 and above is entitled to vote, unless disqualified by law.
- Supervision: Organised and overseen by the Election Commission of India.
- Supporting Laws:
- Representation of the People Act, 1950: Defines voter eligibility and grounds for disqualification.
- Representation of the People Act, 1951: Governs the procedures for conducting elections.
- Current Legal Status: : It is legally a statutory right.
- Constitutional Context: It is shaped by constitutional provisions but does not hold the status of a fundamental right.
Judicial Interpretation:
- N.P. Ponnuswami v. Returning Officer (1952): Declared the Right to Vote as a statutory right.
- Jyoti Basu v. Debi Ghosal (1982): Reiterated that the Right to Vote is neither a fundamental right nor a common law right.
- People’s Union for Civil Liberties v. Union of India (2003): Recognised the Right to Vote as at least a constitutional right.
- Kuldip Nayar v. Union of India (2006): Held that the Right to Vote continues to be a statutory right.
- Raj Bala v. State of Haryana (2015): Recognised the Right to Vote as a constitutional right.
- Anoop Baranwal v. Union of India (2023):
- Majority View: Right to Vote is a statutory right.
- Dissenting Opinion by Justice Ajay Rastogi:
- Linked the Right to Vote with the freedom of speech and expression under Article 19(1)(a).
- Considered it essential to free and fair elections and thus part of the basic structure of the Constitution.
Back2Basics: Other Types of Rights in India
| Description | Enforceability | |
| Natural Rights | Inherent and inalienable rights (e.g., life, liberty); not directly enforceable unless linked to fundamental rights. | Indirectly through Fundamental Rights |
| Fundamental Rights | Guaranteed under Part III of the Constitution (e.g., right to equality, speech, life). | Enforceable in Supreme Court under Article 32 |
| Constitutional Rights | Rights given in the Constitution but outside Part III (e.g., property, trade). | Enforceable under Article 226 via High Courts |
| Statutory Rights | Granted by ordinary laws (e.g., MGNREGA, Forest Rights Act, Food Security Act). | Enforceable as per respective legislations |
| [UPSC 2017] Right to vote and to be elected in India is a:
Options: (a) Fundamental Right (b) Natural Right (c) Constitutional Right* (d) Legal Right |
