Should voting be a fundamental right?

Why in the News

A rift inside the Election Commission of India (EC) has surfaced, and 97 eligible voters in Goa stayed off the rolls because ECINet (the EC’s centralised software for managing electoral rolls) blocked corrections. The right to vote is only a statutory right, granted by ordinary law rather than the Constitution, so an excluded voter has weak protection. This has revived the case for making it a fundamental right.

What is the right to vote, and how did India secure it?

1. What it is: Article 326 gives every adult citizen the vote regardless of gender, caste, religion, education or property, which is universal adult suffrage.
2. Contrast with the West: The United Kingdom and United States widened the vote over decades. Eg. British women voted from 1928.
3. Making it work: The first Chief Election Commissioner, Sukumar Sen, enrolled 173 million largely illiterate voters, using election symbols they could recognise.
4. Two laws: The Representation of the People Act, 1950 (RPA) governs electoral rolls; the 1951 Act governs elections and candidature.
5. The takeaway: India gave everyone the vote at once, but the legal status of that vote was left open.

How have the framers and courts classified it?

1. Constituent Assembly choice: B.R. Ambedkar and K.T. Shah proposed placing it among fundamental rights; the Advisory Committee rejected the idea.
2. Statutory right: In Kuldip Nayar v. Union of India (2006), a five judge Constitution Bench held the right to elect a statutory right. It rests on Section 62 of the RPA, 1951.
3. Conflicting smaller Bench: A two judge Bench in Rajbala v. State of Haryana (2015) called it a constitutional right, but the larger Kuldip Nayar Bench prevails.
4. Question not reopened: Anoop Baranwal v. Union of India (2023) declined to reopen it. Justice Ajay Rastogi’s dissent placed the vote in free expression (Article 19(1)(a)) and life and liberty (Article 21).
5. Democratic imperative: Courts treat voting as inseparable from democracy. Kesavananda Bharati v. State of Kerala (1973) made democracy part of the basic structure, the core Parliament cannot amend away.

What did the Goa episode expose?

1. A split Commission: Two Election Commissioners recorded 14 objections over 10 months against the Chief Election Commissioner over unilateral rule changes, voter deletions and centralised data access.
2. Decision rules: The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 seeks unanimity. Where members differ, the majority decides.
3. Software over officers: ECINet stopped Electoral Registration Officers (EROs), the local officials who maintain rolls, from reversing wrong deletions. Their emails flagged this, but entries stayed deleted.
4. Loss beyond the ballot: The Goa Mediclaim Scheme uses the rolls for eligibility, so deletion costs that benefit too.

Why do accurate rolls matter, and where does the law fall short?

1. Constitutional guardian: Article 324 gives the EC superintendence, direction and control of elections. Section 21 of the RPA, 1950 empowers it to revise rolls.
2. Who may register: Section 19 entitles any citizen aged 18 or above, “ordinarily resident” (normally living) in a constituency and not disqualified, to be enrolled.
3. High bar for courts: Courts intervene only where roll errors “materially affected” the result, so a few excluded voters are not enough.
4. Role of parties: Lakshmi Charan Sen v. A.K.M. Hassan Uzzaman (1985) urged parties to help keep rolls accurate.
5. A design failure: The Goa exclusion came from software design, not a clerical slip, so this “substantial versus isolated” test misses it.

What would fundamental right status change?

1. Rooted in the Constitution: Scholars argue the vote flows from the Constitution itself, so any law regulating it must conform to Articles 325 and 326.
2. Stricter review: Fundamental status keeps the EC’s power to clean rolls but invites heightened judicial review, meaning stricter court scrutiny of deletions.

Challenges

1. Settled precedent: Only a larger Bench can overturn Kuldip Nayar.
2. Dilution by Parliament: A statutory right can be narrowed by an ordinary amendment to the RPA, 1951, with no constitutional bar.
3. Weak remedies: An excluded voter has only the EC’s internal correction process to rely on.

Way Forward

1. Larger Bench reference: The Supreme Court should refer the vote’s legal status to a seven judge Bench.
2. Officer override: Let EROs overrule automated deletions, with an audit trail.
3. Time bound correction: Fix a deadline for restoring wrongly deleted voters, with appeal to a named officer.

Conclusion

A vote that exists only by statute leaves voters exposed, as the Goa exclusion showed. Whether a larger Bench reopens the question will decide if the vote becomes a fundamental right.

Matching Previous Year Question

“[2026, GS2, 10 marks] Is the right to vote a fundamental right? Discuss the position of the Election Commission of India while undertaking the revision of electoral rolls. Can it also examine the question of citizenship of voters?”