The Hindu: Published on 22nd July 2025:
Why in News?
The Supreme Court of India is currently hearing petitions against the Special Intensive Revision (SIR) of electoral rolls in Bihar.
A key legal question that has emerged in this context is: What is the legal status of the "right to vote" in India? — whether it is a statutory, constitutional, or fundamental right.
Background
The right to vote is often seen as a fundamental part of democracy.
However, Indian courts have had differing interpretations over the years.
The debate is renewed due to irregularities or concerns around electoral rolls and their impact on citizens’ voting rights.
What is the Legal Status of the Right to Vote?
According to the majority of Supreme Court judgments, the right to vote is a statutory right, not a fundamental or constitutional right.
It is governed primarily by Section 62 of the Representation of the People Act, 1951.
While it derives from Article 326 of the Constitution, its operational status is provided by statute, not by constitutional guarantee.
What is the Difference Between a Constitutional Right and a Statutory Right?
A constitutional right is a right that is directly granted by the Constitution of India. These rights are binding on all authorities and cannot be altered or taken away without amending the Constitution itself. Examples include the right to property under Article 300A, and freedom of trade and commerce under Part XIII. These rights can be enforced through the High Courts under Article 226 or through specific legal processes, depending on the provision.
On the other hand, a statutory right is one that is created by an ordinary law passed by the Parliament or a State Legislature. These rights do not originate from the Constitution but from specific statutes. For example, the right to work under the MGNREGA, or the right to food under the National Food Security Act, are statutory rights. These can be changed or repealed by simply amending the respective law through a regular legislative process.
Thus, the main difference lies in their source, level of protection, and method of enforcement—constitutional rights being more fundamental and harder to change, while statutory rights are relatively easier to modify and enforce through ordinary legal procedures.
What Does Section 62 of the Representation of the People Act, 1951 Provide?
It grants the right to vote to every person whose name is in the electoral roll of a constituency.
However, this right cannot be exercised by:
- Those disqualified under the Act
- Those in prison
- Those otherwise disqualified under any law in force.
What Have Courts Said on the Right to Vote?
Key Judgments:
- N.P. Ponnuswami (1952) – Right to vote is a statutory right.
- Jyoti Basu (1982) – Reaffirmed the above; not a fundamental/common law right.
- PUCL Case (2003) – Right to vote, if not fundamental, is at least constitutional.
- Kuldip Nayar (2006) – Restored view that it is statutory.
- Raj Bala (2015) – Held it is a constitutional right, relying on PUCL.
- Anoop Baranwal (2023) – Majority held it is statutory again.
- Present Legal Status: Right to vote is a statutory right (as per the latest authoritative view).
What Did Justice Ajay Rastogi Say in Dissent (Anoop Baranwal Case)?
Justice Rastogi disagreed partly with the majority view.
He emphasized:
Voting is a form of expression, falling under Article 19(1)(a) (Freedom of Speech and Expression).
It is integral to free and fair elections, a component of the basic structure of the Constitution.
Even if not a fundamental right per se, it is derived from Article 326 and should be considered at least a constitutional right.
He recommended that the Supreme Court should consider elevating the status of voting to a constitutional right.
What is Article 326 of the Constitution?
It guarantees universal adult suffrage (i.e., right to vote for every adult citizen) in elections to the Lok Sabha and State Assemblies.
Conditions:
- Citizen of India
- At least 18 years old
- Not otherwise disqualified by law
Implications of Statutory vs Constitutional Status
Statutory rights can be:
Changed/limited/overridden by ordinary laws.
Less protected compared to constitutional/fundamental rights.
If voting becomes a constitutional right:
- It would require greater justification for any restrictions.
- Citizens may have stronger recourse to constitutional remedies.
Conclusion:
While the right to vote is often seen as central to democracy, in India it currently holds the status of a statutory right, not a fundamental or constitutional right. However, voices like Justice Ajay Rastogi's raise important points about how intrinsic voting is to democratic expression and the Constitution's basic structure, suggesting a possible future re-evaluation of its legal status.
