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Right To Vote: A Statutory Right Or Constitutional Right

The Constitution of India provides different rights under it to the citizens of India. The rights are classified into three types Constitutional Rights, Fundamental Rights, and Statutory Rights.

The Fundamental Rights are certain inviolable rights that are guaranteed to every citizen under the Constitution of India and that cannot be deprived or seized by the state but these rights can be curtailed with some reasonable restrictions provided under Article 19(2) of the Indian Constitution; these rights include the Right to Freedom of Speech, the Right to Life, the Right to Freedom of Movement, the Freedom of Trade and Profession and the Right to equality and etc.

Constitutional Rights are the rights that are provided to the citizens of India apart from Fundamental Rights. These are the rights that are provided to the citizens and are mentioned in the Constitution of India, but they are not mentioned under Part III of the Constitution. These rights include the Right to Property, the Right to enter into government contracts, etc.

Under the provisions of the Constitution of India, the Parliament is authorized to enact legislation that regulates the residents of India. Moreover, numerous enactments impose responsibilities on individuals and grant them specific entitlements. These entitlements that arise from a statute are referred to as statutory rights. These rights include the Right to Enter into contracts, the right to vote, the right to deductions under the Income Tax Act, etc.

What is the right to vote in India

Under Article 326 of the Constitution, the Right to Vote is provided. Article 326 of the Constitution provides that the Legislative Assembly Elections and Lok Sabha Elections of every state are held based on adult option. It further implies that for any candidate to be eligible for the election process of the Lower House of Parliament or the Legislative Assembly, they should be at least 21 years old. Via the 61st Amendment to the Constitution of India, the age limit was further amended and reduced to 18 years.

The privilege of the right to vote is not only a fundamental right but a significant constitutional right bestowed upon the citizens of our nation. During the time when India was under the control of the East India Company or the British Empire, the indigenous people were deprived of any rights or privileges. The East India Company held supreme authority and dominion over decision-making and governance. However, the Indian Councils Act of 1909, brought about by the rigorous efforts of Morley Minto, marked the initial stage of transformation in the legislative process of the country.

Under the reforms made, a select few individuals who met specific eligibility criteria such as property ownership, income, and municipal tax obligations were granted the right to vote. Subsequently, a significant change in voting rights occurred following the passage of the Government of India Act of 1919. This legislation introduced the concept of dyarchy and expanded the number of members in provincial legislative assemblies.

This legislation also created communal and class electorates, allowing people to exercise their right to vote with some limitations. Until 1919, women were deprived of voting rights. It was during this time that a limited number of women were granted the privilege of voting.

The Simon Commission of 1927 recommended various changes in the voting scheme, such as changing the voting age to 21 years, which was initially 35 years, providing special representation for women voters, and also including their eligibility to contest elections. However, due to the absence of Indian representatives on the commission, these recommendations faced boycott. Furthermore, in 1935, these recommendations were implemented, introducing direct elections in the country.

Following India's independence, the Constituent Assembly was elected in 1947 with only 15% female representation. Shortly thereafter, in 1947, the principle of universal adult franchise was adopted by the parliament. This principle ensures that every individual, regardless of their sex, caste, creed, race, or religion, has the right to vote, with each vote carrying equal value. This principle of Universal Adult Franchise serves as the backbone of our democracy and remains in effect to this date.

Who can vote:

Any person who is registered on the voter's list of India can vote.
The eligibility criteria to be registered in the voter list are as follows:
  • He must be a citizen of India
  • Must be a major, i.e., have attained 18 years of age
  • Must not be of unsound mind
  • Must not be prohibited under any law or any court in the country

According to the voting rules of the country:

  • A person can only cast one vote at a time
  • A person can only cast a vote in the constituency where he resides
  • Must have a voter ID card

Documents to own, to get registered in the voting list:

  • Voter ID Card or EPIC Card
  • Aadhar card is mandatory to vote
  • Right to vote for NRIs
Section 2(v)(A) of India's Foreign Exchange Management Act of 1999 defines who is a NRI.

After the filing of several writ petitions by the NRIs in the Supreme Court and several requests from the Members of Parliament in the years 2013 and 2014, the Election Commission started looking for possibilities for the right to vote for NRIs.

After the Lok Sabha election of 2014, a committee of 12 people was set up to study the three options, that were:
  • Vote by post
  • Online Voting
  • Voting at an Indian Mission Abroad
The committee turned down the proposal by stating that online voting could be a compromise to the secrecy of the voting and the Indian missions abroad do not have adequate resources to conduct full-fledged elections with maintaining the secrecy of the elections.

A year after turning down the proposal, in 2015 the committee recommended that NRIs be given the right to vote in person, and apart from that, additional alternate voting options were provided, including e-ballot postal, and proxy voting.
  • Under proxy voting, a person registered in the voting list can assign his voting power to a representative
  • At present, there are postal ballots that are allowed only to a certain category of voters, i.e. Service Sectors living in India, which include:
    1. The members of the Armed Forces
    2. The members of the Armed Police Force who are serving outside of India
    3. The members of the Government of India assigned to posts outside India

Further, in 2017, a proposal on proxy rights was passed by the Union Cabinet for the NRIs, and a bill was brought amending the Representation of People Act 1950.

But the bill soon lapsed in the Rajya Sabha due to the dissolution in 2019 of the 16th Lok Sabha, and since then the proposal has not been taken into consideration yet again.

The Election Commission of India supported postal voting rights only instead of proxy voting for NRIs.
In order to extend the facility of postal voting to overseas voters, the government only needs to bring an amendment in the Conduct of Election Rules, 1961.
This amendment does not require the approval of the parliament.

Right to vote of prisoners
According to a report by the Economics Times in 2019, when there were approximately 90 crore citizens who were to vote in the 2019 Lok Sabha elections, at that time almost 4 lakh citizens were denied the right to vote, and those citizens were prisoners.

Section 6(25) of the Representation of People Act, 1951 states that:
No person shall vote at any election if he's confined in a prison, whether under a sentence or is within the lawful custody of the police.
The world's "largest democracy," India, has been denying an important constitutional right to vote to its four lakh eligible voters. India is one of the few countries to have a total ban on all prisoners. Such a ban affects detainees, accused under trials, and convicts of the offense. Only those who are out on bail can vote was further stated by the Election Commission of India 2019.

This issue has not been properly taken into consideration since the voting system was in India. The Supreme Court, while rejecting a petition that sought the right to vote for prisoners in 1997, gave various reasons why such a right was being denied to the citizens who were under detention.

Resources come short as permitting everyone in prison to vote would require the deployment of much larger police and greater security arrangements.
Any individual who is in prison as a consequence of his own conduct cannot claim equal rights.
To keep people with criminal backgrounds far away from the election scene.
But the irony in the world's largest democracy is that many of its legislators have criminal cases filed against them, which have been going on for years, and they have the right to cast a vote, while the people who are prisoners�not everyone in prison is under detention for criminal cases�are still denied the right to vote.

In 2019, a Public Interest Litigation (PIL) was filed by Aditya Prasanna Bhattacharya, a former student of the National Law University, challenging the constitutional validity of a provision, Section 62(5), in the Act and seeking to grant voting rights to prisoners.

The Supreme Court took notice of the petition and issued a notification to both the Central Government and the Election Commission (EC) to address the concerns raised in the PIL. The Bench, headed by Chief Justice U.U. Lalit and comprising Justices S. Ravindra Bhat and Bela M. Trivedi, carefully examined the arguments presented by advocate Zoheb Hossain and requested a response from the Ministry of Home Affairs (MHA) and the Election Commission.

The plea contended that the provision, due to its overly broad language, indiscriminately denies prisoners, including those detained in civil prisons, their right to vote. It was argued that there is no reasonable classification based on the purpose of imprisonment, thereby violating the principle of equality. The plea sought a directive to declare Section 62(5) of the Representation of the People Act, 1951, as unconstitutional and in violation of the right to equality under Article 14, as well as the right to vote under Article 326.

Additionally, it requested that the provision be modified to align with the provisions of the Constitution. The plea further urged the Election Commission of India to take all necessary measures to ensure that prisoners are granted the right to vote.

Election Commission of India
The Election Commission of India is a constitutional body that was established on January 25, 1950, to regulate and conduct free and fair elections in the country. The Election Commission is a permanent, independent, and self-governing body. The Election Commission is the one and only body that is responsible for the elections in India.

Composition of the Election Commission of India
  • The Chief Election Commissioner and other election commissioners of the commission are appointed by the President.
  • When any other Election Commission is to be appointed, the Chief Election Commission acts as the Election Commission's Chairman.
  • The President can also appoint regional commissioners to assist the Commission if necessary after consulting with the Election Commission of the country.
  • The tenure of office of all the commissioners shall be determined by the President of the Country.

Functions of the Election Commission of India
Some of the functions that are to be fulfilled by the commission are as follows:
  1. Conduct Municipal Corporation and Municipal Panchayat Elections in the State.
  2. Giving advice in matters related to post-election disqualification of sitting members of Parliament and State Legislatures.
  3. To issue a model code of conduct for implementation in elections for local bodies.
  4. Updating Electoral rolls with new additions and removals.
  5. Directing and controlling the process of conducting elections for the Parliament and Legislature of every State and the offices of President and Vice-President of India.

Powers of the Commission:
  1. Appointing officers to investigate disputes related to electoral arrangements.
  2. The Commission decides the code of conduct to be followed by the political parties and candidates during elections.
  3. Arrangements for the program for publicizing the policies of all the political parties on various media like TV and radio during elections.
  4. To give suggestions to the President on matters related to the disqualification of MPs.
  5. To give advice to the Governor on matters related to the disqualification of MLAs.
  6. To give advice to the President on whether elections can be held in a state that is under the President's rule, in order to extend the period of emergency after 1 year.

How is the Right to Vote Implemented in India
Article 326 provides for the right to vote for every citizen of India. Elections are held every five years; at that time, the right to vote is guaranteed to the citizens of India who are eligible to vote.

Firstly, a list of voters for every eligible citizen to vote is prepared by the BLO (Booth Level Officer). Secondly, based on those lists, election slips are made and distributed by the BLO itself, and he/she ensures that they are delivered to the right person by giving the slip after taking the signature of the person on the list.

If a person has received the election slip, then on the day of the election, the person has to show the slip along with his identity proof (e.g., Pan card, Aadhar card, or any identification proof issued by the government of India), and after some regular procedure at the polling booth, he will be allowed to cast a vote through the EVM or through postal ballot (whichever is available at the polling booth). By following all this procedure, right to vote of a citizen is implemented.

If a person, by chance, is eligible to vote but has not received the election slip that allows him cast a vote, then he shall, on the day of the election, approach the polling booth of that area and contact the party agent (the agent of the responsible party/group of that particular booth) and get the number for his election slip. By following all these procedures, a person ensures his right to vote.

This procedure to ensure a right to vote is followed at three levels, that are, Gram Panchayat (at village level) and Nagar Nigam (at city level), Lok Sabha, and Vidhan Sabha and by following all the process the person is ensured with the right to vote.

Primarily, the right to vote was considered a statutory right, but after the filing of a PIL in 2019, Justice DY Chandrachud expressed his view on the right to vote being a constitutional right and not only being a statutory right. The right was said to be a statutory right as Section 33(7) of the Representation of People Act, 1951, allows a candidate to contest elections from two seats.

The Election Commission of India's counsel had said that there were judgments which stated that the right to vote was only a statutory right but Justice Joseph had remarked�

"It may not be correct to say that the (Right to vote) is only a statutory right".

Taking Article 326 of the Constitution into consideration, which says that every person who has attained the age of majority "shall be entitled to be registered as a voter at any such election", Justice Joseph opined that the right to vote is a constitutional right. Justice Joseph also suggested that the right to vote should be considered a Constitutional Right and not just a Statutory Right.

Frequently Asked Questions (FAQs):
  1. Who can cast a vote in India?

  2. Any person who is a citizen of India and above 21 years can cast a vote.
  3. Can NRIs cast a vote?

  4. Yes, NRIs can cast a vote through proxy voting.
  5. When is National Voter's Day celebrated in India?

  6. India celebrates National Voters Day on January 25 every year.
  7. Which Article guarantees the Right to Vote?

  8. The right to vote is guaranteed under Article 326 of the Constitution of India.
  9. Can a foreign national residing in India, cast a vote in India?

  10. A foreign national can cast a vote in India only if he is registered as a citizen of India, otherwise, he does not have the right to cast a vote in India.

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