THE CONTEXT: Universal adult franchise is the constitutional spine of the Republic, yet the Supreme Court is presently testing its resilience while hearing petitions against the Special Intensive Revision (SIR) of Bihar’s electoral rolls. The Election Commission (EC) has insisted that Aadhaar, voter-ID and ration cards cannot by themselves prove citizenship for roll-entry, prompting fears of large-scale exclusions. Opposition parties call it “murdering democracy”, highlighting the legal question whether the vote is a fragile statutory creature or a higher constitutional commitment.
CONSTITUTIONAL-STATUTORY ARCHITECTURE:
| INSTRUMENT | KEY PROVISION | LEGAL CHARACTER |
|---|---|---|
| Constitution of India | Article 326: Universal adult franchise (18 plus, limited disqualifications) | Enabling but not self-executing; implemented through ordinary law |
| Representation of the People Act, 1950 | Section16 & 19 – qualifications & disqualifications for enrolment | Statutory |
| Representation of the People Act, 1951 | Section 62 – “Every person whose name is on the roll shall be entitled to vote…”, with prison & multi-constituency restrictions | Statutory right with procedural limits |
Implication: The franchise presently derives its enforceability from statute, even though the constitutional text (Art. 326) frames its contours.
JUDICIAL TRAJECTORY & DOCTRINAL DEBATES:
| YEAR | BENCH STRENGTH | HOLDING ON FRANCHISE | POSITION |
|---|---|---|---|
| N.P. Ponnuswami (1952) | 5-Judge | Voting is a statutory right subject to legislative limits | Statutory |
| Jyoti Basu (1982) | 5-Judge | Re-affirmed statutory character | Statutory |
| PUCL (2003) (per P.V. Reddy J.) | 2-Judge | “At the very least, a constitutional right” | Constitutional (minority) |
| Kuldip Nayar (2006) | 5-Judge | Statutory | Statutory |
| Raj Bala (2015) | 2-Judge | Constitutional | Constitutional |
| Anoop Baranwal (2023) – Majority | 5-Judge | Statutory | Statutory |
| Anoop Baranwal – Justice Ajay Rastogi’s partial dissent | Linked voting to free speech (Art. 19(1)(a)); integral to basic structure; urged upgrade to constitutional right |
Pattern: Larger benches (1952, 1982, 2006, 2023) have favoured a statutory reading; smaller or dissenting opinions have invoked constitutional/fundamental logic.
COMPARATIVE & INTERNATIONAL BENCH-MARKING:
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- Global South trend: South Africa, Kenya and Nepal place an explicit, directly enforceable franchise in their Bills of Rights-enabling immediate constitutional remedies against disenfranchisement.
- Common-law comparators: Canada treats voting as a Charter right (Section 3), while Australia views it as a statutory entitlement unless Parliament restricts it unreasonably (High Court, Roach, 2007).
- International obligations: Article 25 of the International Covenant on Civil and Political Rights (ICCPR) recognises universal suffrage as a civil right, demanding that any limitation be “objective and reasonable”.
- Electoral Justice data: 84 per cent of 178 countries now constitutionalise the franchise; only 16 per cent retain a purely statutory model.
PRESENT CONTROVERSY – BIHAR SIR CASE STUDY:
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- EC affidavit: Aadhaar, voter-ID & ration cards are inadequate to prove eligibility; EPIC cannot validate de-novo rolls.
- Petitioners: High documentary threshold may exclude landless, migrant and Dalit communities effectively diluting Art. 326 mandate.
- SC’s immediate task: Determine whether the process of roll-purification itself offends constitutional democracy.
THE ISSUES:
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- Statutory fragility: Ordinary majority can alter voting thresholds, creating uncertainty.
- Documentation barriers: Proof-of-citizenship rules risk disenfranchising migrant workers, homeless persons and trans-genders.
- Carceral disenfranchisement: Sec 62(5) disqualifies 4 lakh under-trial and convicted prisoners, raising proportionality questions under Art. 14 & 21.
- Digital divide & e-EPIC: Online enrolment excludes the 43 per cent households without reliable internet.
- Overseas & internal migrants: 13 million overseas Indians and 45 million inter-state migrants face de-facto voting hurdles.
- Electoral roll quality: Duplicates/deceased entries (estimated 3–4 per cent per EC audits) erode public trust.
- Low youth participation: Although 18–25 age group is 17 per cent of electorate, turnout lagged overall average by 6 pp in GE 2024 (EC data).
WHY ELEVATE THE VOTE TO A CONSTITUTIONAL RIGHT?
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- Basic-Structure Nexus: Free and fair elections is a basic-structure principle; denying franchise constitutional status undercuts that guarantee.
- Strict-Scrutiny Shield: Any future disenfranchisement (e.g., of prisoners or migrants) would face heightened judicial review rather than lenient rational-basis tests.
- International Credibility: Aligns India with ICCPR commitments and SDG-16 targets on inclusive institutions.
- Democratic Legitimacy: Makes electoral roll management an exercise in justification by the State rather than litigation by excluded citizens.
THE WAY FORWARD:
| Insert Article 326-A | Pass a Constitution Amendment affirming an inalienable right to vote. Allow Parliament to regulate only the procedure subject to “reasonable and proportionate” test. |
| Roll-Integrity Mission 2.0 | Launch a two-year Aadhaar-assisted but not Aadhaar-exclusive de-duplication drive. Provide for social audits and grievance redress within seven days. Link EC funding tranches to compliance scores for states. |
| Prison Voting Reform | Amend Section 62(5) to extend postal ballots to under-trials and convicts with sentences up to five years, echoing Law Commission Report 255. Deploy secure e-proxy voting kiosks inside central jails. Conduct an impact evaluation after one election cycle. |
| Remote Voting for Migrants & NRIs | Fast-track the EC’s Multi-Constituency Remote Electronic Voting Machine (RVM) pilot in 12 high-migration districts. For overseas citizens, scale up e-postal ballots authenticated by Indian missions. Target 50 per cent migrant participation in 2029 Lok Sabha polls. |
| Inclusive Enumeration Vans | Deploy mobile BLO units in slums, relief camps and forest hamlets, integrating DigiLocker and Jan-Dhan databases for instant verification. |
| Digital Literacy & Access Hubs | Establish one Common Service Centre per gram panchayat for on-site e-EPIC printing and voter-roll search. Aim for 100 per cent digital availability of rolls by 2027 state elections. |
| Open Electoral Data Act | Enact a law requiring machine-readable roll and turnout data within 30 days of polling; exempt personal identifiers. Aligns with RTI jurisprudence and deters manipulation. Implementation cost negligible-leveraging existing EC IT infrastructure. |
| Independent Election Finance Authority | Establish a quasi-judicial Election Finance Corporation to audit party finances, inspired by Law Commission 255 recommendations. Equip it with power to freeze funds pending compliance, ensuring monetary equity that undergirds the equal weight of each vote. |
THE CONCLUSION:
India orchestrates the world’s largest election but still houses the vote in the basement of ordinary law. Elevating the franchise to constitutional status, while pairing it with granular administrative reforms, would future-proof the Republic against inadvertent or engineered disenfranchisement and align it with evolving global democratic norms. In the twenty-first century, popular sovereignty deserves a seat in the constitutional high table, not a temporary pass issued by statute.
UPSC PAST YEAR QUESTION:
Q. In the light of recent controversy regarding the use of Electronic Voting Machines (EVM), what are the challenges before the Election Commission of India to ensure the trustworthiness of elections in India? 2018
MAINS PRACTICE QUESTION:
Q. Although democracy is part of the basic structure, the right to vote remains a statutory right in India. Discuss this paradox in the light of the ongoing controversy over electoral roll revision.
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