WHY IS RIGHT TO VOTE NOT A FUNDAMENTAL RIGHT IN

INDIA
Submitted in partial fulfillment of the requirements

for the award of the degree B.Com., LL.B. (Hons)

Submitted by

D. Nimalan
BC0150017
Submitted to

Ms. Nikita patta joshi

TAMIL NADU NATIONAL LAW SCHOOL

TIRUCHIRAPPALLI 620 009

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INTRODUCTION

Right to vote in India is a legal right for the citizens. The constitution of India gives to
its citizens certain rights for the purpose of their personal liberty and freedom which the state
cannot take away from its citizens such as right to life and right to personal liberty etc. But the
government didn't grant the right to vote as a fundamental right instead it granted it as a legal
right. This raised various questions whether the right to vote in elections was protected or not. If
right to vote was included in the list of fundamental right every person who were prevented from
voting like prisoners will try to enforce their right to vote. Since right to vote was a legal right
and not a fundamental right the state can prevent the citizens from voting for certain reasons and
it cannot be challenged in the court if it was for a valid reason, unless if it was a fundamental
right which can be challenged it the court for any reason if it was violated. The government also
doesn't allow some people to exercise their right to vote and the reason behind such reason was
found and analyzed whether it was for a valid reason. In this project it was analyzed why right
vote was not included in the list of fundamental rights and what impact does it makes on the
citizens right to vote.

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 RESEARCH METHODOLOGY

The research methodology used in this project is analytical and descriptive. Data has been
collected from various materials, journals and web sources. The information in this project is
secondary information. This project has been done after a thorough research of materials from
various sources and analyzing the information carefully.

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RESEARCH OBJECTIVE

The main research objective of this project is to find the reason behind why right to vote
was placed under legal right and not under fundamental right.

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Research Questions

1) Why is right to vote a legal right in India?

2) What will be the difference if right to vote was a fundamental right in India and not a legal
right?

3) Who are restricted from voting by the government of India?

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RIGHT TO VOTE IN INDIA

Right to vote is a constitutional right in India. Art 326 of the constitution talks about right to
vote in India. The elections to the house of people and the legislative assembly of every state
shall be on the basis of adult suffrage. Every citizen on India who is not less than 18 years of age
can vote in the elections in India provided he should not be disqualified in other grounds. Article
326 of the constitution establishes adult suffrage by which every Indian who satisfy the above
conditions are allowed to vote.

In sixty one amendment article 326 was amended and the age for voting was brought down
from age of 21 to age of 18. This right to vote was given to all citizens irrespective of the caste,
religion, social or economic status. No one is prevented is from voting unless they are
disqualified from certain grounds like grounds under constitution or any law made by the
appropriate legislature. The introduction of universal adult suffrage is considered one of the most
important decisions that changed India for the better. Adult suffrage gave women right to vote.1

In India all the persons who are eligible to vote are required to come to the polling booth and
required to caste their vote in person. Each person can vote only once in an election. This type of
polling booth voting system is to make sure no fake votes were registered and the registered
voter himself will exercise his right to vote. Voting can also be done using the postal ballots it
used for the people who are working in the armed forces in and across the country and for the
people who are in the election duty including the policemen and the election officers2.

Indian constitution gives the voters certain rights. They have the right to know about the
financial status and the criminal record if any of the candidates who are contesting in the
elections. They also should know about the election manifesto of the contestants mainly for the
purpose of voting. People who are not able to vote due to their physical disability can seek the
help of the election officers who will help them with the process. Non residential indians (NRI)
were allowed to vote in elections even if they were not in country for a period of more than six
months.

1
https://www.bankbazaar.com/voter-id/voting-rights-in-india.html
2
http://www.merinews.com/generalelection/jsp/ConstitutionalRights.jsp

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 A new right called NOTA was given to the voters. NOTA means none of the above if
the person who is registering his vote has no interest in voting for any of the candidate then he
can vote for None Of the Above. NOTA however Doesn't make a big difference in the election
results, because it doesn't matter how many votes were registered in NOTA the candidate with
the most votes will win the election even if he has got lesser votes than NOTA.3

3
http://www.elections.in/none-of-the-above-option.html

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GOVERNING BODY FOR ELECTION IN INDIA

ELECTION COMMISSION OF INDIA

The election commission of India is an autonomous body which was established to conduct
fair elections. The election commission conducts election for the office of president, for the
parliament and for the legislative assemblies in various states in India. The election commission
operates under the article 324 of the constitution which talks about the superintendence, direction
and control of elections to be vested in an election commission and subsequently representation
of people act was enacted to provide for the conduct of the elections house of parliament and the
house of legislature for each state, the qualification and disqualification of membership of those
states, the corrupt practices and other offences at or in connection with such elections and
decision of doubts and disputes arising out of or in connection with such elections. This act was
enacted before the first general election was conducted in 1951-52.

FUNCTIONS OF ELECTION COMMISSION

One of the most important feature of the democratic form of the government is conducting
election at regular intervals. The elections should be conducted fairly and freely and it is the
reason why election commission was separately established and it was given certain powers and
functions.

The main function of the election commission is to conduct elections. The election
commission prepares the electoral roll of all who are eligible to vote in the elections. The
election schedule is announced by the Election Commission through Press Conference. The
announcement is followed by the publication of The model code of conduct. On publication of
notification, the candidates can file their nominations. The political parties should be registered
with the election commission then only they will be allowed to contest in the elections. Another
important function of election commission is to allot symbols for the political parties and for
individual contestants who were contesting in the elections because without the symbols it will
be difficult for people to vote. Election commission appoints number of poll observers which it
considers as necessary for the conduct of free and fair elections. 4

4
http://www.importantindia.com/11832/functions-of-election-commission-of-india/

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 The election commission of India also performs certain quasi judicial functions like settling
the disputes which arise between the political parties. It also sets certain model code of conduct
for the election and makes sure the model code of conduct was followed by the political parties.
Article 324 of the Indian constitution gives the election commission powers to revoke the poll in
a constituency and order a fresh poll because of the violation the model code of conduct and
because of the breakdown of constituency in the particular assembly. After the cancellation of
the previous election the election commission alone has the right to conduct election in the
particular assembly again.

Every political party and the candidate contesting in the election should keep an account
of how much they are spending in the elections. Election commission has the power to scrutinise
the accounts for the elections expenses which were submitted by the election commission. These
accounts should be submitted to the election commission within time by the candidate. If there is
any fault in the above mentioned then the election commission can disqualify the candidate by
publishing in the official gazette. Whenever there is a vacancy in a particular legislature due to
disqualification or death the election commission has the duty to conduct the by elections in the
particular constituent assembly. 5

India is a country which has large number of villages. Most number of people in the village
were uneducated. All the citizens must be participated in the elections. Voters Participation in the
democratic and electoral processes is integral to the successful running of any democracy and the
very basis of democratic elections. Without knowing anything about elections these people find
it difficult to participate in the election. It is considered as important function of the election
commission to educate them about the elections so they can participate in the elections.

The counting of votes is one of most important function of the election commission. The
votes were taken to the counting place from the polling booth and were counted and the resulted
were published under the supervision and guidance of election commission. In order to bring
transparency in the election process the media are encouraged and provided facilities by the
election commission to publish information regarding the election to the public.6

5
http://www.yourarticlelibrary.com/essay/powers-and-functions-of-election-commission-of-india/24934/
6
http://www.readorrefer.in/article/Powers-and-functions-of-Election-Commission_1677/

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PERSONS WHO ARE ELIGIBLE FOR VOTING AND NOT ELEGIBILE FOR VOTING

Article 326 of the Indian constitution talks about the right to vote. Any citizens of India
who is above the age of eighteen who has registered themselves can vote in the parliamentary
and in the state legislature elections. Provided they should not be disqualified to vote by
constitution or law made by any valid legislation or by the order of the president. Each voter can
vote only once in the constituency in which he has registered himself as a voter. If any individual
votes in more than one constituency or twice in the same constituency, his votes will be
disqualified.

According to the section 16 of the representation of the people act 1950 A person shall be
disqualified from the registration of the electoral poll if he is not a citizen of India, If he is
declared as unsound mind by the competent court or he is disqualified from voting by any law
relating to the corrupt practices and offences in connection with election. According to the
section 17 of representation of the people act 1950, no person can register themselves in electoral
roll for more than one constituency, and according to the section 18 of the same act no person
can register in the electoral roll for more than once in any constituency. 7

The person who was convicted under the section 171E of Indian penal code for the
offence of bribery and under the section 171F of Indian penal code for the offence of undue
influence and personation or under section 125 of the representation of people act 1951 for
promoting enmity between classes connected to election or under section 135 or under section
136 of the representation of the people act 1951won't be able to vote in any election for the
following six years. A person who is disqualified by the order of president under section 8A of
the representation of people act will also be disqualified from voting for a period of six years

Representation of people act 1951 talks about the right to vote. Section 62 of the act says
that no person shall vote for more than one constituency of the same class and if a person more
than one constituency his votes will be considered as void, and if a person votes more than once
in the same, notwithstanding that his name have been registered in the electoral roll for that
constituency for more than once, and if he does so all his votes in that constituency will be held
void. Section 62 (5) of the representation of people act 1951 says that a person cannot vote in

7
http://eci.nic.in/archive/handbook/CANDIDATES/cap3/cap3_1.htm

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election if a person is confined in a prison whether under a sentence of imprisonment or
transportation or otherwise or in the lawful custody of police.8

RIGHT TO VOTE AS LEGAL RIGHT IN INDIA

Right to vote is given as legal right in India and not as a fundamental 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, Representation of people act RPA,
1951. The main reason why right to vote is a legal right and not a fundamental right is because
the government itself due to certain grounds restricts some people from exercising their right to
vote like persons who have some criminal background etc. In case if right to vote had been
fundamental right a person who is working in a private organization far away from home who
has been denied leave to go to hometown for casting his vote will challenge in the court saying it
has been violated. The people who are also restricted by the government on certain grounds will
try to enforce right to vote as a fundamental right. It also doesn't mean that right to vote is not
protected, if any voter was not allowed to vote for an invalid reason he can challenge it in court.
It is not only a legal right but also basic right for every citizen in India.9

RIGHT TO VOTE IS NOT A FUNDAMENTAL RIGHT JUSTIFIED?

To find the answer for this question we should know about the basic difference between the
legal right and a fundamental right. The fundamental is guaranteed if you are simply a citizen of
India, but it is not the case for legal right which will be given only if you above the age of 18
years. One of the basic difference between legal right and a fundamental right is that a legal
right is the result of a law framed by the legislature, whereas the fundamental rights arises from
the constitution it is a basic structure of the constitution. Because of the above the reason a legal
right can be amended or changed by the government easily but the amendment of the
fundamental is a tedious and long process which cannot be amended or cancelled easily. A legal

8
https://www.bankbazaar.com/voter-id/voting-rights-in-india.html
9
http://eci.nic.in/archive/handbook/CANDIDATES/cap3/cap3_1.htm

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right can be waived easily which is not the case for fundamental right. The legal right can be
easily take of the government for any valid reason, but the same cannot be done to the
fundamental right except in case of emergencies.

There are many reasons why right to vote is a legal right. First of them was the amendment if
imagine what would have happened if right to vote was a fundamental right which was
considered as a basic structure of the constitution it would be long and tedious process to amend
the right to vote, in a country like India where elections would happen frequently for the
parliament for the various state assemblies during different periods of time, when the age for
voting was brought down from 21 to 18 it would have been very difficult to do such an
amendment in the constitution because fundamental rights are considered as part of the basic
structure of the constitution.

Fundamental rights are preexisting. It will be difficult for the people to live without
the fundamental rights. Because fundamental rights are kith and kin with the lives of the people.
Fundamental rights guarantees people freedom, liberty, and happiness helps them to live in
peace. Government is rule over the people by making law and executing them. So fundamental
rights are more likely to be violated by the government. So fundamental rights are merely
guaranteed by the constitution in case if the government tries to violate it. Right to vote is not
preexisting because it does not give any freedom, liberty or equality to the people it is merely
used to elect a represent on behalf of the people. If right to vote is not preexisting it cannot be
considered as a fundamental right and the same cannot be guaranteed under any article in the
constitution.

The aim and the objective of the fundamental rights is to give liberty and equality for the
people. Fundamental rights were framed so that the government cannot interfere in the certain
rights of the people. If we take right article fourteen it takes about the equality before law it says
every person is equal before law and will be given equal protection under law irrespective of
their social and economic status. Article nineteen talks about the protection of certain rights like
freedom of speech and etc which gives people freedom to express their thoughts and opinion
which is not the same case for the right to vote. Article twenty one protects the life and the

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personal liberty of an individual whereas the right to vote does not come under the category of
protection of life or personal liberty. 10

Legal rights can be denied if it was for a valid reason. Which not the case for the
fundamental rights which can be denied to the people only in case of emergencies. But it also
doesn't mean legal right can be denied for any reason, for example it cannot be denied on the
basis of caste, race, gender etc. if they are denied on that basis it can be challenged in the court
under 14 saying the right to equality is violated. The denial of the legal right seems possible only
on the above mentioned grounds which can be claimed under article 14 so there is itself no
necessary for the inclusion of right to vote in the category of fundamental rights.

If we look into all the fundamental rights they are based on the equality liberty and
freedom, but right to vote cannot be included under any of these. The amendment of the
fundamental right is a very large and difficult process. India is a large country where the
elections will occur frequently for the parliament and for the various state legislative assemblies.
If right to vote was a fundamental right then its amendment will be very difficult or it may not be
possible sometimes which will in turn affect the elections.

A legal right can be taken away by the state for some valid reasons. But fundamental rights
cannot be taken away for any reason. For example if right was given under fundamental rights a
person who is employed with a private firm could have gone to the supreme court or high court
seeking his right to vote if his employer denies his right to vote. Right to vote would be difficult
to perform in these cases. Right to vote is denied to certain people who are guilty of certain
offences and who are in custody of police by the government. If right to vote was, fundamental
right the people of above category cannot be denied their right to vote even if it was for a valid
reason. These rights are denied to them just because it was a legal right.

10
https://www.quora.com/Why-is-the-right-to-vote-not-a-fundamental-right-in-India

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CONCLUSION

The right to vote is not a fundamental right it was justified in this project by mentioning the
distinguishing feature between the right to vote and the other features of the fundamental right
like the right to vote prevents the people who were under the age of 18 and it was not the case in
fundamental rights and the difficulty in amendment of the fundamental rights which will take a
long time, and certain person who were banned from voting will try to enforce the right to vote if
it was a constitutional law. This project concludes that right to vote was justified to be a legal
right and not a fundamental right.

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Bibliography

1) http://www.elections.in/none-of-the-above-option.html

2) http://www.importantindia.com/11832/functions-of-election-commission-of-india/

3) http://www.readorrefer.in/article/Powers-and-functions-of-Election-Commission_1677/

4) Indian constitutional law, MP JAIN, 7th edition, Lexis Nexis.

5) Constitution of India , V.N, Shukla , Eastern book company

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