The right to vote is not a civil right. A Bench of six learned Judges in N.P. Ponnuswami v. Returning_Officer, Namakkal,(1952) in the context of Article 329(b) held that the right to vote was a creature of a statute or a special law and must be subject to limitations imposed by it. The matter arose from a challenge to the rejection of the nomination maintained in a writ petition and the question which substantially arose was the impact of Article 329(b). No doubt, the court examined Part XV of the Constitution and about Articles 325 and 326, the Court held as follows:
“The other two Articles in Part XV i.e. Article 325 and 326 deal with two matters of principle to which the Constitution framers have attached much importance. They are.
(1) Prohibition against discrimination in the preparation of, or eligibility for inclusion in, the electoral rolls, on grounds of religion, race, caste, sex or any of them; and
(2) adult suffrage.”
The Court really was not concerned with the question as to whether Article 326 provided for a Constitutional right to vote.
In Jyoti Basu and Others. Debi Ghosal and Others, the Court was dealing with a challenge to the High court rejecting an application in an Election Petition to strike out the names of certain parties from the array of parties. The Court inter alia held that Article 326 provides for elections to be held on the basis of adult franchise. Thereafter, the Court held as follows:
“7. The nature of the right to elect, the right to be elected and the right to dispute an election and the scheme of the constitutional and statutory provisions in relation to these rights have been explained by the Court in N.P. Ponnuswami v. Returning Officer, Namakkal Constituency(supra) and Jagan Nath v. Jaswant Singh[1954]. We proceed to state what we have gleaned from what has been said, so much as necessary for this case.
8. A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a common law right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election.”
Mohan Lal Tripathi vs. District Magistrate, Raibraally and others was a case wherein the appellant who was elected directly under Section 43 of the U.P. Municipalities Act was removed by a no-confidence motion. It was his contention that his removal was undemocratic as it was sought to be done by a smaller and different body than the one that elected him. It is in these facts that the court inter alia held as follows:
“…But electing representatives to govern is neither a ‘fundamental right’ nor a ‘common right’ but a special right created by the statutes or a ‘political right’ or ‘privilege’ and not a ‘natural’, ‘absolute’ or ‘vested right’.”
In Rama Kant Pandey v. Union of India, a Bench of three learned judges was dealing with a petition challenging the validity of the Representation of the People (Amendment Ordinance) Act, 1992 on the ground of violation of Articles 14, 19 and 21. Section 52 providing for countermanding of polls was amended. It was in the context of the said challenge, the Court noted that the right to vote or to stand as a candidate for election was neither a fundamental nor civil right. It purported to follow the views which originated in Ponnuswamy case (supra).
In Anukul Chandra Pradhan, Advocate Supreme Court v. Union of India and others, 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. The elbow room available to the legislature in classification depends on the context and the object for enactment of the provision.
The existing conditions in which the law has to be applied cannot be ignored in adjudging its validity because it is relatable to the object sought to be achieved by the legislation. Criminalisation of politics is the bane of society and negation of democracy. It is subversive of free and fair elections which is a basic feature of the Constitution.
Thus, a provision made in the election law to promote the object of free and fair elections and facilitate maintenance of law and order which are the essence of democracy must, therefore, be so viewed. More elbow room to the legislature for classification has to be available to achieve the professed object.”
The Court also found other reasons to justify the provision. It was noted that permitting every person in prison to vote, would lead to a resource crunch in terms of police force required to facilitate the right. The Court also went on to hold that the Right to Vote is also subject to limitations imposed by the Statute. The specific question, as to whether it constituted a Constitutional Right under Article 326, as such, was not presented for adjudication.
In Union of India v. Assn. for Democratic Reforms, the High Court gave certain directions to the Election Commission on the basis that the right of the voter to make the right choice depended upon the availability of information about the past of the candidates and it must be disclosed to the voters. Supreme Court found that for the health of democracy and fair elections and for ensuring the purity of elections and having regard to the width of the jurisdiction of the Election Commission under Article 324 (1) of the Constitution, the directions given by the High court was justified. The Court however issued certain directions which modified the directions of the High Court. It is in the context of these facts, the Court, inter alia, held as follows:
“46 (7). Under our Constitution, Article 19(1)(a) provides for freedom of speech and expression. Voter’s speech or expression in case of election would include casting of votes, that is to say, voter speaks out or expresses by casting vote. For this purpose, information about the candidate to be selected is a must. Voter’s (little man — citizen’s) right to know antecedents including criminal past of his candidate contesting election for MP or MLA is much more fundamental and basic for survival of democracy. The little man may think over before making his choice of electing law-breakers as law-makers.”
The directions led to the insertion of Sections 33A and 33B. Under Section 33B, it was inter alia provided that notwithstanding any judgment, no candidate was liable to disclose or furnish any such information in respect of his election which is not required to be disclosed or furnished under the Representation of the People Act, 1951 or the rules made thereunder.
In People’s Union for civil Liberties (PUCL) and Another vs. Union of India and AnotherJustice M.B. Shah while dealing with the nature of the right to vote, inter alia held that “the right of the voter to know the bio data of the candidate was the foundation of democracy”. It was concluded by the learned judge that Section 33B of the amended Act was illegal and invalid. Justice P. Venkatarama Reddi in the same case went on hold as follows:
“With great reverence to the eminent Judges, I would like to clarify that the right to vote, if not a fundamental right, is certainly a constitutional right. The right originates from the Constitution and in accordance with the constitutional mandate contained in Article 326, the right has been shaped by the statute, namely the RP Act. That, in my understanding, is the correct legal position as regards the nature of the right to vote in elections to the House of the People and Legislative Assemblies.
It is not very accurate to describe it as a statutory right, pure and simple. Even with this clarification, the argument of the learned Solicitor-General that the right to vote not being a fundamental right, the information which at best facilitates meaningful exercise of that right cannot be read as an integral part of any fundamental right, remains to be squarely met.
Here, a distinction has to be drawn between the conferment of the right to vote on fulfilment of requisite criteria and the culmination of that right in the final act of expressing choice towards a particular candidate by means of ballot. Though the initial right cannot be placed on the pedestal of a fundamental right, but, at the stage when the voter goes to the polling booth and casts his vote, his freedom to express arises. The casting of vote in favour of one or the other candidate tantamount to expression of his opinion and preference and that final stage in the exercise of voting right marks the accomplishment of freedom of expression of the voter. That is where Article 19(1)(a) is attracted.
Freedom of voting as distinct from right to vote is thus a species of freedom of expression and therefore carries with it the auxiliary and complementary rights such as right to secure information about the candidate which are conducive to the freedom. None of the decisions of this Court wherein the proposition that the right to vote is a pure and simple statutory right was declared and reiterated, considered the question whether the citizen’s freedom of expression is or is not involved when a citizen entitled to vote casts his vote in favour of one or the other candidate.”
Justice D.M. Dharmadhikari also agreed with the following conclusion No.2 at para 123 which contains the judgment of Justice P. Venkatarama Reddi:
“(2) The right to vote at the elections to the House of the People or Legislatives Assembly is a constitutional right but not merely a statutory right; freedom of voting as distinct from right to vote is a facet of the fundamental right enshrined in Article 19(1)(a). the casting of vote in favour of one or the other candidate marks the accomplishment of freedom of expression of the voter.”
In Kuldip Nayar and Others v. Union of India and Others, the question which actually fell for consideration was the validity of a certain amendment which came into force on 28.08.2003. By the Amendment, the requirement of domicile in the State concerned for being elected to the Council of States was deleted. The Constitution Bench in the course of its judgment referred to PUCL (supra) and the court observed as follows:
“361. The argument of the petitioners is that the majority view in People’s Union for Civil Liberties (2003) , therefore, was that a right to vote is a constitutional right beside that it is also a facet of fundamental right under Article 19(1)(a) of the Constitution.
We do not agree with the above submission. It is clear that a fine distinction was drawn between the right to vote and the freedom of voting as a species of freedom of expression, while reiterating the view in Jyoti Basu v. Debi Ghosal(1982) that a right to elect, fundamental though it is to democracy, is neither a fundamental right nor a common law right, but pure and simple, a statutory right.
362. We do not agree with the above submission. It is clear that a fine distinction was drawn between the right to vote and the freedom of voting as a species of freedom of expression, while reiterating the view in Jyoti Basu v. Debi Ghosal(supra)that a right to elect, fundamental though it is to democracy, is neither a fundamental right nor a common law right, but pure and simple, a statutory right.
363. Even otherwise, there is no basis to contend that the right to vote and elect representatives of the State in the Council of States is a constitutional right. Article 80(4) merely deals with the manner of election of the representatives in the Council of States as an aspect of the composition of the Council of States. There is nothing in the constitutional provisions declaring the right to vote in such election as an absolute right under the Constitution.”
It will be noticed that the Council of States is not the same as the House of the People within the meaning of Article 326. We cannot overlook the following observations:
“448. It shows that the right to vote in “free and fair elections” is always in terms of an electoral system prescribed by national legislation. The right to vote derives its colour from the right to “free and fair elections”; that the right to vote is empty without the right to “free and fair elections”. It is the concept of “free and fair elections” in terms of an electoral system which provides content and meaning to the “right to vote”. In other words, “right to vote” is not (sic) an ingredient of the free and fair elections. It is essential but not the necessary ingredient.”
In K. Krishna Murthy v. Union of India, a Constitution Bench was dealing with the constitutional validity of certain aspects of the reservation policy in regard to the composition of elected local self- government institutions. The Bench relied upon M.M. Tripathi case (supra) and observed as follows:
“..It is a well-settled principle in Indian Law, that the right to vote and contest elections does not have the status of fundamental rights. Instead, they are in the nature of legal rights which can be controlled though legislative means…”
The request of the petitioner therein to reconsider the precedent wherein the right of political participation was categorised as statutory right was turned down. No doubt, this case was not dealing with elections to the House of the People or the State Legislature.
In People’s Union for Civil Liberties v. Union of India, [the second PUCL case], a Bench of three learned Judges recognised the right of the person to express his disapproval of the candidates who stood for election by pressing a button which would indicate ‘none of the above’ (NOTA). In the course of this judgment dealing with the first PUCL judgment (supra), the Court held as follows:
“After a careful perusal of the verdicts of this Court in Kuldip Nayar, Assn. for Democratic Reforms and People’s Union for Civil Liberties [(2003) 4 SCC 399] , we are of the considered view that Kuldip Nayar does not overrule the other two decisions rather it only reaffirms what has already been said by the aforesaid two decisions. The said paragraphs recognise that right to vote is a statutory right and also in People’s Union for Civil Liberties it was held that “a fine distinction was drawn between the right to vote and the freedom of voting as a species of freedom of expression”.
Therefore, it cannot be said that Kuldip Nayar case, has observed anything to the contrary. In view of the whole debate of whether these two decisions were overruled or discarded because of the opening line in para 362 of Kuldip Nayar case i.e.
“We do not agree with the above submissions” we are of the opinion that this line must be read as a whole and not in isolation. The contention of the petitioners in Kuldip Nayar was that majority view in People’s Union for Civil Liberties (2003) held that right to vote is a constitutional right besides that it is also a facet of the fundamental right under Article 19(1)(a) of the Constitution. It is this contention on which the Constitution Bench did not agree too in the opening line in para 362 and thereafter went on to clarify that in fact in People’s Union for Civil Liberties [(2003) 4 SCC 399], a fine distinction was drawn between the right to vote and the freedom of voting as a species of freedom of expression.
Thus, there is no contradiction as to the fact that right to vote is neither a fundamental right nor a constitutional right but a pure and simple statutory right. The same has been settled in a catena of cases and it is clearly not an issue in dispute in the present case. With the above observation, we hold that there is no doubt or confusion persisting in the Constitution Bench judgment of this Court in Kuldip Nayar [(2006) 7 SCC 1] and the decisions in Assn. for Democratic Reforms [(2002) 5 SCC 294] and People’s Union for Civil Liberties [(2003) 4 SCC 399] do not stand impliedly overruled.”
Anoop Baranwal v Union of India, (2023)
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