Part XV (Art. 324-329) of the Constitution of India, provides the provisions related to Election procedure in India. Article 326 of the constitution, which comes under this part, provides the qualification to be voter in India.
Article 326
Article 326 reads as follows:
The elections to the House of the People and to the Legislative Assembly of every State shall be,
- on the basis of adult suffrage; that is to say,
- every person who is a citizen of India and
- who is not less than eighteen years of age on such date as may be fixed in that behalf by or under any law made by the appropriate Legislature and
- is not otherwise disqualified under this Constitution or any law made by the appropriate Legislature
- on the ground of non- residence, unsoundness of mind, crime or corrupt or illegal practice,
shall be entitled to be registered as a voter at any such election.
Decoding Article 326
In the first part of Article, the Constitution provides that election to the House of the People and to the Legislative Assembly of every State, shall be on the basis of adult suffrage. This is followed by the words, which is intended to expound what ‘adult suffrage’ means. The Founding Fathers have, in unmistakable terms, declared that elections to the two Legislative Bodies in question, shall be thrown open to participation to every person, who is:
I. a) A citizen of India;
b) Is not less than eighteen years of age.
The condition must be fulfilled as regards the qualification with reference to ‘such date’;
II. ‘Such date’ is to be as specified in or under a law made by the appropriate Legislature. The appropriate Legislature would mean, Parliament in the case of elections to the House of People and the Legislative Assembly of the concerned State, in the case of the Legislative Assembly;
III. The person, who is a citizen and not less than eighteen years as on the date as indicated in the law, as aforesaid, Article 326 continues to declare must not be disqualified under the Constitution or any law made by the appropriate Legislature.
IV. The appropriate Legislature can make a law providing for a disqualification, however, only as provided in Article 326 itself.
Disqualifications
In other words, Article 326 has limited the power of the Legislature concerned in the matter of stipulating disqualifications. What are those disqualifications, which can be stipulated by a law?
V. The disqualifications, which can be provided by a law are as follows:
a. Non-residence; b. Unsoundness of mind; c. Crime; d. Corrupt practice; e. Illegal practice;
VI. Moving forward, and proceeding on the basis that a person is a citizen and is not less than eighteen years on the relevant date and is not disqualified in terms of what we have indicated just herein before, viz., under any of the grounds indicated as ‘a’ to ‘e’, then Article 326 declares that such person shall be entitled to be registered as a voter at any such election.
The words ‘any such election’ would mean elections either to the House of the People or the House of the Legislative Assembly.
Thus, all conditions being present, with reference to Article 326, the person becomes entitled to be registered as a voter.
Article 327 and 328
Further, Article 327 and 328 empower parliament and state legislatures respectively to make provisions related to elections.
327. Power of Parliament to make provision with respect to elections to Legislatures. —
Subject to the provisions of this Constitution, Parliament may from time to time by law make provision with respect to all matters relating to, or in connection with, elections to either House of Parliament or to the House or either House of the Legislature of a State including the preparation of electoral rolls, the delimitation of constituencies and all other matters necessary for securing the due constitution of such House or Houses.”
328. Power of Legislature of a State to make provision with respect to elections to such Legislature. —
Subject to the provisions of this Constitution and in so far as provision in that behalf is not made by Parliament, the Legislature of a State may from time to time by law make provision with respect to all matters relating to, or in connection with, the elections to the House or either House of the Legislature of the State including the preparation of electoral rolls and all other matters necessary for securing the due constitution of such House or Houses.
The Representation of Peoples Act, 1950
Accordingly, Parliament enacted in 1950, The Representation of Peoples Act, 1950. Part III provides for electoral rolls for Assembly Constituencies. Section 14(b), as substituted w.e.f. 01.03.1956, defines ‘qualifying date’:
“Qualifying date”, in relation to the preparation or revision of every electoral roll under this Part, means the 1st day of January of the year in which it is so prepared or revised:”
Section 15 of the 1950 Act declares that for every constituency, there must be an electoral roll prepared under the said Act under the supervision, direction and control of the Election.
Section 16 provides as follows:
“16. Disqualifications for registration in an electoral roll. —
(1) A person shall be disqualified for registration in an electoral roll if he—
(a) is not a citizen of India; or
(b) is of unsound mind and stands so declared by a competent court; or
(c) is for the time being disqualified from voting under the provisions of any law relating to corrupt practices and other offences in connection with elections.
(2) The name of any person who becomes so disqualified after registration shall forthwith be struck off the electoral roll in which it is included:
Provided that the name of any person struck off the electoral roll of a constituency by reason of a disqualification under clause (c) of subsection (1) shall forthwith be re-instated in that roll if such disqualification is, during the period such roll is in force, removed under any law authorising such removal.”
With effect from 30.12.1958, Section 19 of the 1950 Act reads as follows:
“19. Conditions of registration. — Subject to the foregoing provisions of this Part, every person who —
(a) is not less than eighteen years of age on the qualifying date, and
(b) is ordinarily resident in a constituency, shall be entitled to be registered in the electoral roll for that constituency.”
It will be clear, therefore, that the requirement of minimum age of eighteen years, as provided in Article 326, is to be determined with reference to such date, as may be fixed by or under any law, is to be understood as the qualifying date and it is to be understood as the 1st day of January of the year, in which the electoral roll is prepared or revised.
Section 20 deals with the meaning of ‘ordinarily resident’. It provides for various circumstances in which a person shall not be deemed to be ordinarily resident as also circumstances in which he is deemed to be ordinarily resident.
Article 326 read with the provisions in the 1950 Act, which we have indicated, together provide the disqualifications for a person to be not included in an electoral roll. Before the deletion of the words ‘and illegal’ in Section 16(c), it provided for corrupt and illegal practices, which were relatable to the last part of Article 326.
However, the words ‘illegal practices’ have been omitted by Act 58 of 1960 w.e.f. 26.12.1960. Apparently, being relatable to ‘crime’, to be found in Article 326, Section 16(c) declares that a person may be disqualified for registration in the electoral roll on the basis of other offences in connection with elections. This means that a person would be disqualified for registration in the electoral roll, if he is disqualified under any law relating to corrupt practices or any other offence in connection with elections.
The Representation of the People Act, 1951
In 1951, Parliament enacted The Representation of the People Act, 1951. Thereunder, the word ‘election’ has been defined in Section 2(d) to mean ‘an election to fill a seat or seats in either House of Parliament or in the House or either House of the Legislature of a State. Section 2(e) defines the word ‘elector’ to mean ‘in relation to a constituency means a person whose name is entered in the electoral roll of that constituency for the time being in force and who is not subject to any of the disqualifications mentioned in section 16 of the Representation of the People Act, 1950’.
- Under Part II, Chapter I deals with qualifications for membership of Parliament.
- Chapter II deals with qualifications for membership of State Legislatures.
- Chapter III of the 1951 Act provides for disqualifications for membership of Parliament and State Legislatures.
- Section 8, falling in Chapter III, deals with disqualification upon conviction for certain offences. Various offences are enumerated with the conditions attached therein.
- Section 8A deals with disqualification for membership, for both Parliament and State Legislatures, on the ground of corrupt practices.
Right to Vote
In the 1951 Act, Chapter IV deals with ‘The poll’. Section 62 deals with the Right to Vote. It reads as follows:
“62. Right to vote. —
(1) No person who is not, and except as expressly provided by this Act, every person who is, for the time being entered in the electoral roll of any constituency shall be entitled to vote in that constituency.
(2) No person shall vote at an election in any constituency if he is subject to any of the disqualifications referred to in section 16 of the Representation of the People Act, 1950.
(3) No person shall vote at a general election in more than one constituency of the same class, and if a person votes in more than one such constituency, his votes in all such constituencies shall be void.
(4) No person shall at any election vote in the same constituency more than once, notwithstanding that his name may have been registered in the electoral roll for the constituency more than once, and if he does so vote, all his votes in that constituency shall be void.
(5) No person shall vote at any election if he is confined in a prison, whether under a sentence of imprisonment or transportation or otherwise, or is in the lawful custody of the police:
Provided that nothing in this sub-section shall apply to a person subjected to preventive detention under any law for the time being in force.
(6) Nothing contained in sub-sections (3) and (4) shall apply to a person who has been authorised to vote as proxy for an elector under this Act in so far as he votes as a proxy for such elector.”
The meaning of the Section 62(1) read with Section 62(2) is the following:
To cast the vote, a person must be included in the electoral roll of the constituency. However, even if it be that he is so included, if at the time of the election, when he casts the vote, he has incurred any of the disqualifications referred to in Section 16 of the 1950 Act, then his Right to Vote will stand eclipsed.
Section 62(3) forbids a person, who may find his name in the electoral roll of more than one constituency of the same class, from casting his vote in more than one constituency. In such an eventuality, notwithstanding the fact that his name is so included, if he votes in more than one constituency, his ballot will be void in regard to all the constituencies in which he casts his vote.
Equally, under Section 62(4), if his name is included more than once in the electoral roll of the same constituency and should he cast his vote more than once, all the votes in regard to the said constituency are declared void.
Section 62(5) enacts a prohibition against the person casting his vote, if he is confined to a prison. This would mean that while a person’s name may be included in an electoral roll, which would entitle him, ordinarily, to cast his vote, however, Section 62(5) deprives him of his right to cast his vote, when he is so confined.
Court Ruling on Section 62(5)
In Anukul Chandra Pradhan, Advocate Supreme Court v. Union of India and others[1], a Bench of three learned Judges, while dealing with a challenge to Section 62(5) of the 1951 Act, on the ground that it violated Article 14 and 21 of the Constitution, upheld Section 62(5). We may only notice the following views expressed by the Court:
“5. There are provisions made in the election law which exclude persons with criminal background of the kind specified therein, from the election scene as candidates and voters. The object is to prevent criminalisation of politics and maintain probity in elections. Any provision enacted with a view to promote this object must be welcomed and upheld as subserving the constitutional purpose.”
Also, we find the same view taken in Chief Election Commissioner and Others v. Jan Chaukidar (Peoples Watch) and Others[2], wherein Supreme Court has upheld the validity of Section 62(5). A person may be so confined, if he is under a sentence of imprisonment or transportation or otherwise or if he is in the custody of police.
Voting is not compulsion
We may, at this juncture, notice one feature. Article 326, undoubtedly, provides for adult suffrage. It declares that if a person is a citizen and is above eighteen years of age and he is not disqualified as provided in Article 326 by or under any law, then, such person shall be entitled to have his name entered in the electoral roll. It does not expressly say that he shall have the right to cast his vote.
Equally, we may notice that even if a person is included in the electoral roll, if he is in confinement in a prison, it would not entitle him or rather it would disentitle him to cast his vote. In other words, while ordinarily, the Right to Vote inevitably follows from the inclusion of a person in the electoral roll, the Right to Vote may be denied in terms of the law as we have noticed.
Section 16(1)(b) of the 1950 Act, provides for disqualification for a person of unsound mind to be registered in an electoral roll. There is a condition, which is that, he must be so declared by a competent court. Unsoundness of mind is also to be found in Article 326 as a disqualification.
Section 16(1)(c) of the 1950 Act, it is to be noticed, disqualifies a person for registration in an electoral roll, if he is for the time being disqualified from voting under any law relating to corrupt practices and other offences in connection with elections. If such a person is included in such electoral roll, his name is to be struck off from the electoral roll [See Section 16(2)].
Right to vote as constitutional right
In ‘Anoop Baranwal v. UOI, (2023)’ the court held that,
“Since every legal right, which would include a Constitutional Right, [as the Constitution is also law though the grundnorm and not law for the purpose of Article 13,] must have a title, we must ascertain whether a citizen of India, who is not less than eighteen years, as, on the ‘qualifying date’, as found by us, has a right. Since, the title to a legal right means, “the facts or events, by reason of which, the rights become vested in its owner”, who is the person of inherence, we will explore, whether Article 326 contains the facts and reasons and whether it also contains the content of a Right.
In keeping with the mandate of Article 326, Parliament has made the 1950 Act and the 1951 Act. It is thereafter that the first general elections were held in the country. It may be true that the 1950 Act and the 1951 Act have been amended from time to time. At any given point of time, placing Article 326 side-by-side with the law made by Parliament or the law made by the State Legislature, we would find that, if a person is a citizen of India and not below eighteen years of age, and if he does not incur the disqualifications, which cannot be more than what is provided in Article 326, but the content of which, may be provided by the law made by the competent Legislature and the citizen not less than eighteen years does not have the disqualifications, he becomes entitled to be entered in the electoral roll.
Such person, as is indicated in Article 326, indeed, has a right, which can be said to be a Constitutional Right, which may be right subject to the restriction. Section 62(1) of the 1951 Act, as we have noticed, gives also the Right to Vote to such a person. Any other interpretation would whittle down the grand object of conferring adult suffrage on citizens.”
“138. In regard to Article 326, we may observe, when the Founding Fathers clearly created a right on the citizen, who was an adult, (the age was originally 21 years and it was lowered to 18 years), to have his name entered in the electoral roll unless he has incurred disqualifications, which, in turn, were limited to those mentioned in Article 326, they were to be provided by law. It is clear that a law necessarily had to be made. The law was, indeed, made as we have noted by the 1950 and 1951 Acts, providing for the true contours of the disqualification limited to what was provided in Article 326.
Imagine a situation, if Parliament had not passed 1950 and 1951 Acts, it would have led to a situation where the foundational democratic process of holding elections to the House of the People and the Legislative Assemblies would have been rendered impossible. A law had to be made and it was made. Not making the law would have led to a constitutional breakdown. We make these remarks to remind ourselves that treating the Constitution as the grundnorm, providing the very edifice of the State and the Legal System, the making of the law by the Legislative Body, which is a power entrusted to the Legislative Branch, may come with a duty.
A conferment of legislative power, as is done under Article 245 read with Article 246 of the Constitution, is not to be confused with the making of the law under Article 326. The conferment of a legislative power under Article 245 read with Article 246 is the essential legislative powers in terms of the separation of power envisaged broadly under the Constitution.
139. We have noticed that we cannot and we need not finally pronounce on this aspect, in view of the fact that a Constitution Bench of this Court, which we have noticed in Kuldip Nayar case[3], has proceeded to hold that there is no Constitutional Right.
140. What is important is that the Court noted in Anukul (supra) that holding of free and fair elections constitute a basic feature of the Constitution and approved of the view apparently that the Right to Elect is fundamental to democracy [See Jyoti Basu[4]].
141. Even if it is treated as a statutory right, which, at any rate, cannot be divorced or separated from the mandate of Article 326, the right is of the greatest importance and forms the foundation for a free and fair election, which, in turn, constitutes the right of the people to elect their representatives. We would for the purpose of the lis in question rest content to proceed on the said basis.”
Reference
Anoop Baranwal v. UOI (2023)
[1] (1997) 6 SCC 1
[2] (2013) 7 SCC 507
[3] Kuldip Nayar v. UOI (2006)
[4] Jyoti Basu v. Debi Ghosal, 1982