Right to vote as a Constitutional right

The discrepancies/anomalies of this sort should not be allowed to play foul with the sacred ‘right to vote’ in an electoral democracy.

With the Supreme Court refusing to interfere, under Art. 136 of the Constitution of India, to uphold the right of the first-time voters, running into lakhs, in the poll-bound State of Telangana to exercise their franchise, the Apex Court has not kept its tryst with the young voters of this region, who, even upon attaining the age of eligibility, of 18 years, are being denied the said right on purely ‘technical grounds’, which is an anachronism in this ‘internet age’.

In a near similar situation, in the American context, in the year 1962, when nearly 70 per cent of the voters of the Tennessee State, were deprived of their voting rights in the matter of reapportionment, since they had migrated from the rural to the urban areas, resulting in an ‘inequality of the distribution of urban/rural voters’, the U.S. Supreme Court in the case of Baker vs. Carr, 369 US 186, a 5 Judges majority opinion lead by Justice Brennan, upheld the citizens’ most prized possession, in a representative democracy i.e. a right to vote. Not to gloss over the fact that this very Court in the year 1946, in the case of Colegrove vs. Green, 328 US 549 did not want to enter into what it called ‘political thicket’ and beyond the Court’s jurisdiction.

And with the Baker’s case, the circle was complete, when it considered the ‘right to vote’ as the greatest civil right and the most fundamental under the American system of Government, in keeping with the ‘equality clause’ in the 14th amendment to the Constitution of America.

In the Indian context, the right to vote has metamorphosed, during the last 60 and odd years of Electoral Democracy, from a ‘statutory right’ as held in N.P. Ponnuswamy’s case (1952 SCR 218, 6 Judges) into a full-fledged fundamental right, integral to the freedom of expression guaranteed under Art. 19(1)(A) of the Constitution of India, as held in the PUCL case (2013) 10 SCC 1 (3 Judges).

The above legal position is not without the bearing of the movement for ‘inclusive political participation’, carried out at the international level, in the form of the Universal Declaration of Human Rights, which at Article 21 provides as under:

“(1) Everyone has the right to take part in the Government of his country, directly or through freely chosen representatives.

(2) Everyone has the right of equal access to public service in his country.

(3) The will of the people shall be the basis of the authority of Government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.” and

Further the International Convention on Civil and Political Rights (ICCPR), at Article 25 says-
“Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in Article 2 and without unreasonable restrictions:

(a) to take part in the conduct of public affairs, directly or through freely chosen representatives;
(b) to vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;
(c) to have access, on general terms of equality, to public service in his country.” and further
Let’s not forget that the said right through English history, the giver of the mother of Parliaments, has held the right to vote, at an election, on par with the ‘right to legislate’ and thus treated the said right with the highest importance and as a great privilege, which no elector can be deprived of. Sir Winston Churchill summarised the ‘election process’ in his inimitable style, as quoted in M.S.Gill’s case (1978) 1 SCC 405 (5 Judges):

Para 2. “..........At the bottom of all tributes paid to democracy is the little man, walking into a little booth, with a little pencil, making a little cross on a little bit of paper – no amount of rhetoric or voluminous discussion can possibly diminish the overwhelming importance of the point.”

Going back a little bit in history and asking oneself, as to why the voting age in the first place was reduced from 21 to 18 years in India in the year 1985? The straight answer to this, is that, in the year 1985, the Rajiv Gandhi Government, to commemorate the International Year of Youth, introduced the 61st Constitutional amendment, in order to lower the age from 21 to 18 years, which was subsequently converted into a YUVA (Youth United for Voter Awareness) campaign, by the Election Commission of India acting under the (a) National Youth Policy 2003; (b) National Policy on Education 1992; and (c) U.N. Millennium Development Goal of 2000, in order to empower youth by way of inclusive political participation.

The direct fallout of this lowering of age, has been a drastic reduction in the average age of the Members of Indian Parliament. In fact, the Election Commission, observes 25th January of every year as the National Voters’ Day, a day on which it tries to rope in as many first-time voters as possible for registration, since the increase in the voluntary enrolment of first-time voters, who have attained 18 years of age even by 1985, has been a marginal - 15 per cent between 1985 and 2010. But in the subsequent years, it has picked up democratic momentum going upto 73 per cent by the year 2014.

If the disenfranchisement of Telangana first-time voters is not to be faced by the youth of other Indian States, the Union Government, should legislate, to have atleast 2 ‘qualifying dates’ as defined in the Representation of People Act, so that the youth who have attained the voting age of 18 years, need not wait for more than a year before they can exercise their franchise.

The sad case of Telangana first-time voters is that, they are not able to vote, although they have attained the eligible age of 18 years, since the ‘qualifying date’ for enrolment is taken as the first of that particular election year. That is to say, if elections are held in 2019, then 1st of January 2019 is the cut-off date for enrolment, and if the elections are held in 2018, then first of 2018, is taken as the cut-off date for enrolment and release of the Final Electoral Roll.

The discrepancies/anomalies of this sort should not be allowed to play foul with the sacred ‘right to vote’ in an electoral democracy. The first-time voters, though on the electoral roll, will not be able to vote at the hustings in Telangana, because of the qualifying date of 1.1.2018, and will now cast their vote only in 2023, by which time they are well past their youth, which is internationally recognised as 15 to 23 years of age.

The said denial of right to vote for the eligible youth due to technical anomalies, is a slur on Indian democracy and should be rectified at the earliest, as part of electoral reforms programme undertaken by the Election Commission of India and in fact a Bill to that effect is pending in Parliament.

In a recent study by two professors of Government, at Harvard, namely Steven Levitsky and Daniel Ziblatt in their book entitled “How democracies die” have given a checklist of symptoms of a dying democracy. Not recognizing the voters’ rights and aspirations is one of the signs of a dying democracy. That being so, let the citizens of the Indian Republic save the Indian democracy from its own elected rulers.

(P Niroop Reddy - The author is Advocate, Supreme Court of India, Former Addl. Advocate-General, State of Meghalaya)