[This post is Part II of the previous post in this series. In this post I shall analyze the categorization of the Right to Vote as a statutory right and the repercussions it holds.]
In the previous post to this series, a discussion on the nature of the Right to Vote [“R2V”] was undertaken and it was established that the right is a mere statutory right. In this post, I shall analyze whether such a categorization of the right is correct and its implications.
After a reading of Part I of the post, a looming question bound to arise in the minds of the readers is – why a right so cardinal to a democracy is categorized as a statutory right as against a fundamental right (“FR”)/constitutional right (“CR”). The answer to the above is twofold. First, Section 62 of the Representation of People’s Act, 1951 (“RPA”) categorically provides so and second, the right to vote does not fall under Article 19(1)(a) of the Constitution of India. This was succinctly put forward in the case of Kuldip Nayar v. UOI, wherein the Court tested the R2V on Article 19(1)(a). The Court held that the R2V has two elements i.e. right to cast a vote and second, casting of vote without any coercion or duress. Interestingly, only the latter has been granted protection under the said Article. Therefore, the position of law that emerges is that a citizen does not have a FR to go and vote, however he has a right to vote without fear, once he reaches the polling booth. This is akin to the famous analogy that one’s right to say XYZ in public is protected but his right to go to the public is not.
Impact of R2V as a Statutory Right:
The categorization of the right as statutory has far reaching repercussions. In the previous post, I have already discussed how a statutory right is not as important as a FR or a CR. The biggest issue which categorization as a statutory right brings is of the possibility of its removal.
A statute in India comes into existence once it is passed by both Houses of the Parliament with a simple majority. Similar, is the procedure for the removal of the statute, which means that one’s R2V can be easily taken away by a party in the Centre which has a majority in both the Houses. This is extremely problematic given the relevance of the right.
Second, is the issue of enforceability. A statutory right can be enforced only in the forum provided in the parent statute whereas a FR/CR can be enforced in a Constitutional Courts, which carry more powers.
The Case for categorizing the Right as a FR:
It is trite law that voting has been interpreted as a form of expression, wherein a voter expresses his support for a candidate through his vote. Despite this established position it has not been read into the right to freedom of speech. I believe such a stance of the Courts is incorrect, for the following reasons.
1. Right to Vote forms part of the Basic Structure:
Post the decision of the Supreme Court of India in Kesavananda Bharti, democracy has been held to be a part of the basic structure which means that Parliament cannot amend/alter this facet of the polity of India. While discussing the facet of democracy, the Court in PUCL v. UOI (2013) held that democracy includes free and fair elections. The Court held that,
“Democracy being the basic feature of our constitutional set up, there can be no two opinions that free and fair elections would alone guarantee the growth of a healthy democracy in the country. The ‘Fair’ denotes equal opportunity to all people. Universal adult suffrage conferred on the citizens of India by the Constitution has made it possible for these millions of individual voters to go to the polls and thus participate in the governance of our country.”
Furthermore, the R2V has been termed as the basic postulate of democracy, making it cardinal for the existence of a democracy. Similarly, other facets of the right namely the right to vote with secrecy (Kuldip Nayar at ¶ 451), have also been held to be a part of the basic structure. It is only reasonable therefore, to infer that this right also forms part of our basic structure.
2. Protecting ancillary rights and ignoring the core:
If one peruses the jurisprudence on voting rights in India, an interesting picture appears. By virtue of judicial precedents the right to know antecedents of the candidate [PUCL v. UOI at ¶ 16 (2003)], the right to secrecy of voting (Kuldip Nayar at ¶ 451) , right to vote without fear [PUCL v. UOI at ¶ 56 (2013)] have all been granted the protection of Article 19(1)(a). The genus of all these rights is the R2V, which quite absurdly lacks the protection. Such a position of law is erroneous given that the R2V is complementary to the other ancillary rights.
Therefore, fellow citizens tomorrow you may not have the R2V but you shall have the right to know the antecedents of the candidates.
The Curious Case of Prisoners:
A school of thought believes that the reason the R2V is not recognized as a part of Article 19(1)(a) is because that would mean granting this right even to the prisoners, who currently are devoid of the right under Section 62 of the RPA. However, I believe such a conclusion is incorrect.
Before I make my case, let’s understand the basics of the protection under Article 19(1)(a). Under the Constitution, a right recognized under the Article can be restricted only on the grounds enlisted in clause 2, which includes: interest of the sovereignty and integrity of India, the security of the State, friendly relations with foreign states, public order, decency or morality, in relation to contempt of Court, defamation or incitement to an offence.
This becomes crucial because it is argued that denying the R2V to the prisoners cannot be justified on the grounds of public order. My argument against this is twofold. First, prisoners by virtue of being incarcerated give up this right and second, the legislation imprisoning them cannot be tested on the touchstone of Article 19.
a. Prisoners do not possess the R2V:
There exist a catena of decisions which maintain that a person who is detained loses certain fundamental rights by virtue of being in prison, namely the right to free movement, assembly and freedom of speech [Haradhan Saha v. State of WB at ¶ 20].
The test to determine which of these rights are suspended was laid down by Chandrachud J., in D Bhuva Mohan Patnaik v. State of AP, wherein he held that only those rights are suspended for exercise of which incarceration is an impediment. Therefore, since by incarceration a prisoner is to stay within his cell and cannot move around in parts of India, his right of free movement is curtailed. However, he can still acquire, hold and dispose property through an agent, which is why the right to acquire property is protected. Applying the above reasoning, voting would necessarily include the prisoners to go to the polling station, including both their movement and deployment of extra security force. Therefore, the right is curtailed due to the incarceration. This has categorically been held in the case of Anukul Chandra v. UOI as well.
b. The imprisoning legislation cannot be tested on the touchstone of Article 19(1)(a):
As discussed above, if the R2V is a fundamental right under Article 19(1)(a), any legislation that curtails it would require it to be tested under the grounds of Article 19(2). The ground that can be reasonably applied in the said case is of ‘public order’.
The term public order has been defined by the Court in Ram Manohar Lohiya v. State of Bihar. The Court has held,
‘It is by now settled that ‘public order’ means ‘even tempo of the life of the community. The test is of the degree and extent of the reach of the Act to the Society.’
Therefore, if A murders B in his house, the act is of purely private significance and the injury or harm resulting affects only a specific individual. Hence, it is not covered under ‘public order’. On the contrary, if during a communal riot, A murders B, a member of the opposite community, it could amount to ‘public order’.
If we adopt the above reasoning, detentions for minor offences and even certain murders in a private setting would not qualify the ground of ‘public order’ and all the legislations criminalizing the offence, would fall foul of Article 19. Such a conclusion in the eyes of the Court is absurd and cannot be conformed to (Bachan Singh at ¶ 42).
To resolve this, the test of direct and indirect effect has been propounded. The test as laid down in A.K. Gopalan v. State of Madras, is applied to identify whether a legislation needs to tested on the grounds of Article 19(1) or not.*
The test states that,
“The legislation in question must be directly in respect of one of the rights mentioned in sub clauses. If however, the legislation is not directly in respect of any of these subjects but as a result of the operation of other legislation for instance punitive detention, his right under any of the sub-clauses is abridged, the question of Article 19 does not arise.”
In other words, if a legislation directly curtails a freedom enlisted in Article 19, the grounds of cl.2 are attracted. However, if the legislation indirectly affects the freedom under the Article, the grounds are not attracted. In the present example, the Indian Penal Code, the core criminal law statute, provides for imprisonment as a punishment which also indirectly affects freedoms like freedom of movement, freedom of trade and speech. Hence, this is not tested on the grounds of 19(2). On the contrary, a provision like Section 66A which restricts online speech which is grossly offensive, directly affects the freedom of speech under Article 19(1)(a) and therefore, would be tested on the grounds of cl.2.
Therefore, given the importance of the R2V, there seem to be a dearth of tenable arguments for not recognizing it as a fundamental right. One may argue that absence of an explicit provision in the Constitution to that effect is a solid justification but we have seen the Courts grant the citizens’ rights, which originally the Constitution did not provide/envisage.
[I would like to thank Ms. Vini Singh (Assistant Prof. of Law, National Law University, Jodhpur) for her valuable inputs.]
* Although the judgment of A.K. Gopalan has been overruled by the subsequent judgment of Maneka Gandhi v. Union of India, this test has stayed. This finds support from the case of Bachan Singh v. State of Punjab, (1980) 2 SCC 684 at par.30.