Should the right to vote be a fundamental right?

On 23 September, an Indian Express investigation revealed an unprecedented rift in India’s three-member Election Commission (EC), with Election Commissioners Sukhbir Singh Sandhu and Vivek Joshi registering 14 objections against Chief Election Commissioner Gyanesh Kumar over 10 months, regarding alleged unilateral rule changes, voter addition/deletion and full access to centralized data.

The report also found that 97 eligible voters from Goa were excluded from the electoral roll after ECINet’s centralized software prevented the Electoral Registration Officers (ERO) from reversing the decision. More worryingly, the consequences go beyond the loss of voting rights. Several state schemes reportedly use electoral rolls to determine eligibility, including the Goa Mediclaim Scheme. The program includes super-specialty treatments not available in state hospitals, such as dialysis, angioplasty, open-heart surgery, transplants, chemotherapy and cochlear implants, and is only available to state voters. The subject once again threw into focus ‘suffrage’, the underlying processes of India’s electoral machinery and the genesis of India’s ‘Adult Universal Suffrage’ (UAS).

What shaped adult suffrage in India?

India’s constitutional promise of “suffrage” differs markedly from that of many Western democracies. Reflecting the mistaken belief held by thinkers such as JS Mill that the vote should be reserved for the “enlightened”, countries such as the United Kingdom initially restricted the franchise to male property owners. Universal male suffrage did not appear until 1918, and women were “enfranchised” a decade later in 1928. In the US, although the 15th and 19th Amendments extended the right to vote to African Americans (1870) and women (1920), systemic barriers such as poll taxes and literacy tests still held many back.

In stark contrast, India’s choice of immediate, universal inclusion ensured “democratic equality” from the outset, bypassing the protracted and often violent struggles seen elsewhere. Article 326 of the constitution granted every adult citizen the “right to vote”, regardless of sex, caste, religion, education or property. Initially set at 21, this limit was reduced to 18 by the 61st Constitutional Amendment in 1989. This commitment to a robust, inclusive democracy found further constitutional reinforcement in a series of Supreme Court judgments, notably beginning with Kesavananda Bharati v. State of Kerala (1973), which established democracy as part of the “basic structure” of the doctrine. For this ideal to work meaningfully, people should be free to decide the fate of their government.

This inclusive vision was put into practice through two key pieces of legislation: the Representation of the People Act 1950, which regulates the preparation and revision of electoral rolls; and the 1951 Act which regulates the conduct of elections, candidacy and electoral offences. The EC has repeatedly introduced administrative innovations to realize this “constitutional promise”.

Notably, the then Chief Election Commissioner Sukumar Sen, faced with the task of registering 173 million largely illiterate voters, turned a logistical hurdle into a democratic breakthrough by introducing election symbols that made UAS practically available.

In India, the EC has the responsibility to reach out to the last citizen, wherever he may be, to exercise his ‘right to vote’.

What is the legal status of suffrage?

The legal status of “suffrage” in India has long been debated, and whether it is classified as a statutory, constitutional or fundamental right determines how easily it can be changed, how it is enforced and what level of legal protection it receives. Although Dr. BR Ambedkar and KT Shah suggested including it in the Fundamental Rights section of the Constitution, the Advisory Committee of the Constituent Assembly ultimately rejected the idea. Importantly, the Constitution Bench of the Supreme Court in Kuldip Nayar v. Union of India (2006) held that the “right to vote” is a statutory right under Section 62 of RPA 1951 and not a fundamental or constitutional right.

Although in 2015 a two-judge bench in Rajbala v State of Haryana described the “right to vote” as a constitutional right, the decision of a larger bench in Kuldip Nayar prevails. Again, in Anoop Baranwal v. Union of India (2023), the Supreme Court declined to comment on the matter, saying it had already been settled by a five-judge Bench in Kuldip Nayar. However, in his dissent, Justice Ajay Rastogi held that “right to vote” is an expression of Article 19(1)(a). (a) and reflects the essence of Article 21. However, as this view remains a minority view, the “right to vote” continues to be recognized as a legal right.

However, although not a fundamental right, the courts have considered “suffrage” as an integral part of democracy and anchored their reasoning on the idea that it allows citizens to shape the government, making it a “democratic imperative” necessary for the survival of the Indian republic.

Why do we need accurate survey results?

Free and fair elections rest on accurate electoral rolls under the RPA 1950. Inaccuracies – such as mass omissions, ineligible inclusions, duplicates or incorrect entries – undermine the principle of “one person, one vote” by allowing impersonation, disenfranchisement or dilution of votes, ultimately distorting the mandate of the people. Therefore, the EC is empowered under section 21 of the 1950 Act to prepare and revise these lists to ensure integrity. The Chief Electoral Commissioner and Other Electoral Commissioners (Appointment, Conditions of Service and Tenure) Act 2023 sets out how the EC must do business. Section 17 requires that the work of the Commission be conducted in accordance with law, while Section 18 provides that its procedure and allocation of work may be regulated by unanimous decision. It further requires that business be done unanimously as far as possible, but where the CEC and the other commissioners differ, the matter is decided by a majority.

Based on its authority from Article 324 of the EC, it serves as the constitutional guardian of elections with the powers of supervision, management and control. A key duty is to prepare accurate electoral rolls under Section 19 of the RPA 1950, which mandates that every citizen aged 18 or over, “ordinarily resident” in a constituency and not disqualified, has the right to be registered. “Ordinarily resident” means actual, continuous presence, not temporary residence. For example, a student living in a dormitory may not be eligible if their permanent residence and intention to return is elsewhere. Mere temporary absence from the place of habitual residence does not deprive a person of the status of a regular resident of that place. This criterion prevents fraudulent registrations and ensures that voters maintain genuine links with their constituencies and keep representatives accountable.

While contradictions may arise, courts have consistently held that only material and systemic errors that are demonstrably “substantially affected” the outcome of an election can compromise the sanctity of the electoral roll. Minor mistakes or isolated disenfranchisement are insufficient.

However, the recent Goa episode complicates this convenient “substantial versus isolated” binary that the courts have relied on. An Indian Express report revealed that 97 eligible voters were removed from the roll, not because of electoral fraud, but because the ECINet software architecture itself denied the ERO the power to reverse erroneous deletions. What makes the episode damning is not just the expulsion, but the apparent lack of response that followed. The ERO reportedly reported the anomalies to the Commission by e-mail, but the corrections were not resumed. This is not an isolated clerical error that courts have historically condoned; it’s a systemic failure baked into the software design, compounded by administrative inertia.

While the right to include or object to electoral rolls is conferred on individuals, not political parties, the court in Lakshmi Charan Sen v AKM Hassan Uzzaman (1985) observed that in a largely illiterate and politically ignorant electorate, parties should take steps to ensure the inclusion of eligible voters and the elimination of ineligible ones. Given India’s one-party parliamentary system, such vigilance will help preserve “electoral integrity”.

What lies ahead?

The revelations against the EC lend new urgency to the argument that the “right to vote” should be elevated from a statutory guarantee to a fundamental one. If the body, which is constitutionally entrusted with the protection of the franchise, can itself be torn by disputes about unilateral action, and the citizen can thus turn only to the internal corrective mechanisms of the EC or to the statutory law.

Many scholars argue that the “right to vote” cannot be considered a statutory right only as it derives from Article 326, and any legislation regulating it must conform to the parameters prescribed in Articles 325 and 326. It is therefore necessary to ensure that the legislature does not impose irrational or unreasonable restrictions on the “right to vote” and free and fair elections are the “basic features of constitutional democracy”.

Justice Rastogi’s dissent in Anoop Baranwal on the legal status of “suffrage” offers a doctrinal basis for a larger bench to revisit a question that the majority in Kuldip Nayar considered settled.

Elevating the “right to vote” to basic status would not reduce the EC’s power to purge the lists; instead, it would subject that power to the heightened standard of judicial review reserved for fundamental rights, ensuring that efforts to centralize electoral administration are always weighed against the citizen’s right to be counted, rather than outweighed. In a democracy where software now mediates the relationship between the voter and the ballot, the constitutional status of the “right to vote” can no longer remain a matter of legislative grace.

(Kartikey Singh is a lawyer based in New Delhi.)