Hindustan Times ST (Mumbai) - Live
Verdict opens new vista for voting as fundamental right
NEW DELHI: The Supreme Court ruling on Thursday to revamp the selection mechanism for the Chief Election Commissioner (CEC) and Election Commissioners has opened a new vista for the declaration of the right to vote as a fundamental right.
All the five judges on the bench held the right to vote as a constitutional right but four of them stopped short of issuing a judicial declaration in this regard in deference to judicial discipline and propriety. For, a bench of equal strength had 16 years ago said that the right to vote is not a fundamental right but just a statutory right.
While justices KM Joseph, Aniruddha Bose, Hrishikesh Roy and CT Ravikumar cited the 2006 judgment in Kuldip Nayar vs Union of India & Ors to exercise restraint against overruling a judgment by a bench of coordinate strength, justice Ajay Rastogi remained emphatic that it is time for the Constitution bench to declare that the right to vote is a fundamental right.
Nevertheless, the extensive discussion by the top court regarding the nature and protection of the right to vote offers an insight into changing judicial norms and rekindles a debate on assigning this right an elevated status so as to protect it from interference in a casual manner.
Writing for the majority, justice Joseph examined the contours and interpretation of Article 326 of the Constitution, which provides that the elections to the House of the People and to the legislative assembly of every state shall be on the basis of adult suffrage.
The provision states that every person who is a citizen of India and is not less than 18 years of age and is not otherwise disqualified under this Constitution or any law made by an appropriate legislature on the ground of unresidency, unsoundness of mind, offence or corrupt or illegal conduct, shall be entitled to be registered as a voter at any election.
Justice Jospeh noted that most of the judgments which went on to hold that the right to vote is not a fundamental right were either not concerned with this point as the primary issue or were not dealing with a challenge pertaining to a direct election such as a Lok Sabha or an assembly election.
In the Kuldip Nayar case, too, justice Joseph noted, the question that fell for the consideration of the court was the validity of a certain amendment relating to domicile in a state for being elected to the council of states. “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,” he said.
Justice Joseph, thus, proceeded to “demystify” and “decode” Article 326 to hold that a person becomes entitled to be registered as a voter if he or she is 18 and not disqualified either under the grounds mentioned in the provision or by any other law. He also referred to the Representation of People Act to point out that every person whose name is included in an electoral roll was entitled to cast their vote unless confined in a prison or was of unsound mind.
The judge concluded that juxtaposing Article 326 with other parliamentary laws would go on to show that every adult citizen of India, if not disqualified under any other law, becomes entitled to be entered in the electoral roll.
“Such person, as is indicated in Article 326, indeed, has a right, which can be said to be a constitutional right, which may be right subject to the restriction...Any other interpretation would whittle down the grand object of conferring adult suffrage on citizens,” held justice Jospeh, writing for himself and three other judges on the bench.
He emphasised that restrictions on the exercise of a right cannot dispute the existence of a constitutional right, citing the fundamental right to free speech which is also subject to reasonable restrictions. “Could it be said that, in view of the power to regulate the Fundamental Right, no right exists? Article 326 provides a constitutional right, subject to restrictions which the law provides for,” said justice Joseph.
However, the judge added a caveat that the bench need not finally pronounce on this aspect since another five-judge bench in the Kuldip Nayar Case has proceeded to hold that there is no constitutional right.
At the same time, justice Jospeh underscored that the top court in other judgments have held that holding of free and fair elections constitute a basic feature of the Constitution and also approved of the view that the right to elect is fundamental to democracy.
“Even if it is treated as a statutory right, which, at any rate, cannot be divorced or separated from the mandate of Article 326, the right is of the greatest importance and forms the foundation for a free and fair election, which, in turn, constitutes the right of the people to elect their representatives. We would for the purpose of the lis in question rest content to proceed on the said basis,” he said.
But Justice Rastogi, in his separate but minority judgment, was direct in rejecting the view that the right to vote is merely a statutory right. He said that although previous judgments of the Supreme Court adopted a restricted view of the right to vote, it is time to declare this as a fundamental right.
“There has been a conflicting view on the status of the right to vote. This gives an opportunity for us to authoritatively hold that the right to vote is not just a statutory right,” said justice Rastogi, lamenting that the constituent assembly was forced to drop the proposal to define it as a fundamental right due to the opposition by a few Princely States.
“Seventy-five years after Independence, we have the opportunity to realise their absolute vision by recognizing what they could not due to socio-political circumstances of their time...The right to vote is an expression of the choice of the citizen, which is a fundamental right under Article 19(1)(a). The right to vote is a part of a citizen’s life as it is their indispensable tool to shape their own destinies by choosing the government they want,” he added.
Justice Rastogi went to say: “We therefore declare the right to vote in direct elections as a fundamental right, subject to limitations laid down in Article 326.”
While an authoritative declaration is still to come on the issue, the judgment on Thursday opened a crucial window for the nature of the right to vote to be revisited by a larger bench of the Supreme Court.
‘Weak-kneed person cannot be named EC’
A person, who is weak-kneed before the powers that be, cannot be appointed as Election Commissioner, emphasised the Supreme Court, adding that an Election Commissioner is answerable to the nation.
“The people of the country look forward to him, so that democracy is always preserved and fostered...A pliable Election Commission, an unfair and biased overseer of the foundational exercise of adult franchise, which lies at the heart of democracy, who obliges the powers that be, perhaps offers the surest gateway to acquisition and retention of power,” it said.
The court added that an independent person cannot be biased.
“Holding the scales evenly, even in the stormiest of times, not being servile to the powerful, but coming to the rescue of the weak and the wronged, who are otherwise in the right, would qualify as true independence,” it underlined.
“Criminalisation of politics, with all its attendant evils, has become a nightmarish reality. The faith of the electorate in the very process, which underlies democracy itself, stands shaken. The impact of ‘big money’ and its power to influence elections, the influence of certain sections of media, makes it also absolutely imperative that the appointment of the Election Commission, which has been declared by this Court to be the guardian of the citizenry and its Fundamental Rights, becomes a matter, which cannot be postponed further,” it further said.