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Right To Vote Fundamental Right Or Constitutional Right

There is always a practice to restrain the right to vote for the less powerful people. In earlier times the entrenched groups always tried to consolidate the power through election, but they do not focus on the basic rights of the citizens. In 1700s U.S. granted right to vote to only the white men who owned the property, and no other were allowed to cast their vote especially women and African Americans. Later in 1870 the fifteenth amendment was ratified that says there would not be any discrimination based on race. But then also states use other methods like literacy and poll taxes to prevent the under privileges using their right to vote.

In Early 20th century voices raised demanding the voting right to women who were historically neglected by the State. But in 1965 there was the 24th amendment (Voting right act)[1] by the congress which was to eradicate all the barring policies and practices by the state although the Voting Rights Act included provisions that required states and local jurisdictions with a historical pattern of suppressing voting rights based on race to submit changes in their election laws to the U.S. Justice Department for approval (or "preclearance").

In the ensuing decadforward and clearance provisions proved to be a remarkably effective means of discouraging state and local officials from erecting new barriers to voting, stopping the most egregious policies from going forward, and providing communities and civil rights advocates with advance notice of proposed changes that might suppress the vote.

In 2013 this act was gutted by the supreme court in Shelby County v. Holder[2] where supreme court declare the section 4(b) and section 5 unconstitutional which include the jurisdiction and preclearance terms. In the 26th amendment the age regarding voting was decreased to 18 from 21 which declared as the win for young people. By this we can see that there is a practice to suppress the right to vote of a people by policies and methods.

Right to vote in India
Voting is a fundamental element of the democratic system, but it is paradoxical that it is not the fundamental right of the citizens. Voting means choosing the person who will govern us and how they will govern. The right to vote is the bedrock of any democratic country, voting rate shows how much people were concerned about the nation and its future policies. It shows awareness among the citizens.[3] The right to vote gives a sense of ownership to the people over the government.

In India the right to vote is given to everyone irrespective of religion,caste, race, sex, or any other disability since independence. We have adopted the universal adult franchise. Right to vote is not the privilege that we get but it is a basic human right too. In India right to vote is mentioned in article 326[4] of the Indian constitution as

Elections to the House of the People and to the Legislative Assemblies of States to be on the basis of adult suffrage The elections to the House of the People and to the Legislative Assembly of every State shall be on the basis of adult suffrage; but is to say, every person who is a citizen of India and who is not less than twenty one years of age on such date as may be fixed in that behalf by or under any law made by the appropriate legislature and is not otherwise disqualified under this constitution or any law made by the appropriate Legislature on the ground of non-residence, unsoundness of mind, crime or corrupt or illegal practice, shall be entitled to be registered as a voter at any such election.

This article of the Indian constitution is unequivocal states that any person who is not the resident of India has not any right to cast the vote in the any election and who is not a sound person has not the right to vote in the election. This article in neither come under the Part III if the Indian constitution which basically deals with the fundamental rights of the people. If we see here the very thin but the main difference lies between fundamental right and the constitutional right that basic rights are given to every person irrespective of any criteria whereas the constitutional right is a statutory right which give some privileges to a citizen of a country who has residence and of sound mind and the person who is not below the age of the eighteen years is qualifies to give vote.

A five-judge bench in Kuldip Nayar Vs Union of India &Ors (2006)[5] had held that the right to vote is not a fundamental right but just a statutory right. '8. Before proceeding to examine the merits of the argument addressed on behalf of the petitioner it will be useful to note that the right to vote or to stand as a candidate for election is neither a fundamental nor a civil right.

In England also it has never been recognized as a common law right. In this connection, we may usefully refer to the following observations in Jyoti Basu V. Debi Ghosal[6], which reads as under (paras 7 & 8) : "The nature of the right to elect, the right to be elected and the right to dispute an election and the scheme of the constitutional and statutory provisions in relation to these rights have been explained by the Court in N.P. Ponnuswami V. Returning Officer, Namakkal Constituency[7], and Jagan Nath v. Jaswant Singh[8]. We proceed to state what we have gleaned from what has been said, so much as necessary for this case.

The right to elect, fundamental though it is to democracy, is anomalously enough neither a fundamental right nor a Common Law Right. It is pure and simple a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are and, therefore, subject to statutory limitation."

So now it has been crystal clear by the Honorable supreme court that the right to vote is not a fundamental right but a constitutional right. The right to vote is considered as constitutional right because it can be waived by the person means a person wishes not to use his right to vote then he may do but the person cannot waive his fundamental rights this make the difference.

If we consider right to vote as fundamental right, then we must give this right to those who are not the resident of the Indian but just present in the rule of the land and those who are of unsound mind and those too who were convicted and under trails as this is not the provision presented by our constitution because this will create a havoc in the election system of our country. In the case Anup Baranwal V. UOI[9], where the top court with the 4-1 ration declared the right to vote as merely a constitutional law not the fundamental law.

So, by the following point it can be interpreted that the in India which is the biggest democracy in the world and with more than 945 million voters[10], who do not have the fundamental right to vote. It is contradictory to say that we do not consider one of the basic elements of democracy as our fundamental right.

As our constitution is a flexible as well as rigid and therefore the amendments are done with accordance with the need of the time for example the right to property was the fundamental right before the 44th Amendment of act 1978[11] of the Indian constitution and a new article 300A was inserted and titled as right to property, this way a fundamental right reformed and mature to constitutional right and in the judgment of Bajranga v. State of Madhya Pradesh[12] Supreme Court clearly mention right to property as a constitutional right.

By this we can see constitution give the legislature a privilege to make law according to need of the hour and in this era it is very much essential to provide the citizens with the equitable rights which will strengthen the basic structure of our democracy and to become a Vishwa guru of this 21st century our law-making body should reconsider the provisions and law as the time has come to declare the right to vote a fundamental right.

  1. (Last visited August 20, 2023)
  2. (Last visited August 21, 2023)
  3. (Last visited August 22, 2023)
  4. AIR 2006 SC 3127
  5. AIR 1982 SC 983 and 986
  6. 1952 SCR 218 : (AIR 1952 SC 64)
  7. AIR 1954 SC 210
  9. (Last visited August 22, 2023)
  11. 2021 SCC ONLINE SC 27 decided on 19-01-2021

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