The text of Article 326 provides that “the elections to the House of the People and to the Legislative Assembly of every State shall be on the basis of adult suffrage.”
Article 326 further lays down the qualifications for being a voter, subject to statutory limitations concerning disqualification, corrupt practices, detention, etc. These Articles were encapsulated within the Constitution to provide the right to vote to large swathes of people, irrespective of their literacy or ownership of property.
The right to vote has been the subject of considerable deliberation and judicial interpretation. Supreme Court has evolved the notion of the right to vote, per constitutional and statutory principles, to empower voters further.
Judicial Decision
One of the very first cases to discuss the issue pertaining to the nature of the right to vote was N.P. Ponnuswami v. Returning Officer, Namakkal Constituency, where Supreme Court categorically held that “the right to vote or stand as a candidate for election is not a civil right but is a creature of statute or special law and must be subject to limitation imposed by it.”
This view was upheld in the case of Jyoti Basu v. Debi Ghosal, holding that the right to elect is neither a fundamental nor a common law right but a statutory right. This was, thereafter, the consistent view that was laid down in a plethora of decisions.
There were diverging views expressed in the case of the People’s Union for Civil Liberties v. Union of India, wherein Supreme Court held that though the right to vote may not be construed as a fundamental right, it is nonetheless a constitutional right.
The debate on this issue was finally laid to rest by Supreme Court in Rajbala v. State of Haryana in the course of adjudicating the constitutionality of the Haryana Panchayati Raj (Amendment) Act, 1935. The Court therein held that the right to vote under Article 326 was not merely a statutory right but was a constitutional right that conferred upon citizens the right to vote, subject to certain limitations.
It may thus be seen that with the aid of judicial construction in the context of the nature of the right to vote, it has been upgraded from being a mere statutory right to a constitutional right. More recently, this view was once again affirmed by Supreme Court in Anoop Baranwal v. Union of India. It is also crucial to take into consideration that Articles 325 and 326 contained in Part XV of the Constitution, deal with rights and duties in the context of elections. These provisions broadly encompass the powers and duties conferred upon various bodies, with the objective of ensuring that elections are conducted in a free and fair manner.
For instance, Article 324 vests the Election Commission with powers to supervise elections, thereby ensuring free and fair elections. Similarly, Article 329 limits the Supreme Court’s jurisdiction in election matters. Any challenge to an election can be made after the election has been completed through an election petition under the Representation of People Act, 1951.
These provisions have been included with the intent of strengthening the political rights of the citizens of the country. It is trite law that provisions which pertain to the same subject matter must be read as a whole and in their entirety, each throwing light and illuminating the meaning of the other. The objective of these provisions, and more specifically Article 326, is, therefore, to enfranchise people as opposed to disenfranchising them.
As illuminated by the historical trajectory of adult suffrage in India and the meticulous deliberations of the framers in instating Article 326, the evident purpose of its inclusion was to bestow upon every individual citizen the right to exercise their vote and choose their elected representatives. Hence, in contemplating the contentions put forth by the Petitioners, the question which arises is whether the right under Article 326 can be invoked to exclude certain individuals.
Right of exclusion and Article 326
Article 326, while conferring the right to vote, also broadly provides that this right would be subject to certain statutory limitations. A brief perusal of the Constituent Assembly Debates, along with contemporary jurisprudence, clearly indicates that Article 326 confers the right to vote upon individuals and does not elaborate on the procedure of exclusion of persons from this entitlement.
In order to ascertain where the power of exclusion has been enumerated, we will analyse the following:
(i) Constituent Assembly Debates;
(ii) the practice in comparative jurisdictions;
(iii) relevant statute; and
(iv) contemporary jurisprudence.
Primarily, the considerations of the Constituent Assembly during the discourse on the right to vote emphasized that determinations regarding disqualifications and exclusions from the right to vote should be outlined by the legislature through suitable statutes. In this context, focused deliberations were conducted, particularly addressing the prescription of qualifications for the right to vote, with Dr. B.R. Ambedkar asserting that the establishment of such qualifications ought to be entrusted to the legislature.
Similar observations were articulated by other members of the Assembly during discussions on the qualifications and disqualifications to the right to vote and inclusion of individuals in the electoral rolls.
Furthermore, an examination of practices in comparable jurisdictions underscores that the authority to exclude individuals from voting is usually entrusted to the legislature. For instance, in the United Kingdom, the rationale and procedure for the exclusion of any individual from voting are delineated in the Representation of the People Act, 1918. Similarly, in the USA, the power and discretion to enforce the right to vote of citizens are bestowed upon Congress.
In India, too, the Representation of People Acts, 1950 and 1951 delineate provisions relating to the disqualification from voting, removal of disqualification, the right to vote, and prohibitions against seeking votes by appealing to divisive factors. In fact, the 1951 Act also elucidates the right to vote under Section 62 and establishes limitations and disqualifications surrounding it.
The Representation of People Act, 1950 has in place a scheme and procedure for effectuating changes onto the electoral roll if it is considered erroneous under Section 22. This provision states that if the electoral registration officer for a constituency, upon an application made to him or on his own motion, is satisfied that an entry in the electoral roll of a constituency is defective or erroneous, should be transposed to another place on account of the concerned person having changed his place of ordinary residence, or if the person is dead or is not entitled to be registered on that roll, then the officer may amend, transpose or delete such an entry.
By virtue of the aforementioned sections, the Act thus clearly envisages mechanisms and procedures for disqualifying individuals from voting and removing the names of people from the electoral roll. These deliberations and instances further strengthen the assertion that the aspect of exclusion from the right to vote cannot be invoked merely by alleging the violation of Article 326. In absence of any such right guaranteed under Article 326, and in light of there being such provision under the Representation of People Acts of 1950 and 1951, the question of exclusion of individuals from the right to vote needs to be viewed from the lens of the aforementioned two statutes.
To summarise our foregoing analysis, Article 326 bestows upon individuals the right to vote and the right to be included in electoral rolls unless disqualified by the legislature or other constitutional provisions.
Reference
In Re: Section 6(a) of the Citizenship Act, 1955 (2024)