THE LEGAL STATUS OF THE RIGHT TO VOTE IN INDIA.

INTRODUCTION

India would be the leading contender if any country were ever hailed as the world's eighth wonder. A country that originated from deeply rooted exploitative colonialism, widespread poverty, deep social hierarchies, humongous ethnic and religious diversity, and historically high illiteracy rates, yet emerged as the world's largest democracy in the modern world. Contrary to the popular belief that democracy only thrives in a developed country when wealth reaches a certain threshold, India has not only sustained its people's government but has also allowed it to flourish. At the heart of this milestone achievement lies the right to vote.

It is fascinating to note that most of the Western nations had taken centuries to extend the universal adult franchise to all sections of their society, whereas India had adopted the universal adult suffrage from the very first general and state elections of 1951-52.^[1] As of 2025, India boasts about 991 million (99.1 crore ) registered eligible voters,^[2] which is surprisingly larger than the population of any continent except Asia, making each national election the largest organized political exercise in world history.

From the above discussion, one thing is clear: if democracy is the body of this country, the right to vote should be considered as its soul. The recent Special Intensive Revision (SIR) by the Election Commission of India and the Supreme Court hearing of this matter has once again sparked a debate about the legal status of  'the right to vote'. This blog seeks to unpack the intricacies surrounding this right's legal status by analyzing various types of rights present in India and judicial precedents. And finally, a way forward, where we'll discuss whether this legal status should be changed or remain as it is.

WHAT IS THE LEGAL STATUS OF RIGHTS

The legal status here describes the rights and duties of individuals or entities under the law. It represents what legal position and standing a person or an entity holds in law, and determines what rights and responsibilities they have.^[3] Some jurists have defined legal rights as' interests protected and recognized by the rule of law'.^[4] The legal rights can be described as the creature of law, which derives their validity from legal norms or sources of law.^[5] 

The right can be of many kinds. For instance, natural rights are universal and inalienable and bestowed by nature. The Indian courts in various judgments have highlighted that the fundamental rights under Part III of the Indian Constitution embody such natural rights in the modern era. These fundamental rights are enforceable by the highest court of this land by Article 32^[6] directly and thereby responsible for curtailing the unhindered power that the state enjoys.

On the other hand, constitutional rights are contained in the Constitution but outside of Part III. Though the fundamental rights themselves are a species of constitutional rights, they are distinguished because of their enforceability.^[7] To illustrate, property rights are constitutional rights enshrined in Article 300A^[8] of the Indian Constitution and are not as enforceable as fundamental rights. But they are enforceable under Article 226^[9] or by any other operation of law.

Moreover, statutory rights or simply legal rights are those rights that are created and amended by the ordinary law of the  Parliament or the State legislature.^[10] The right to get ration under the National Food Security Act, or the rights of scheduled tribes under the Forest Rights Act, are a few examples. Suppose you imagine the hierarchy of these three rights in any country, particularly India. In that case, you'll realise that fundamental rights are at the top based on enforceability, origin, and importance within the legal framework, followed by constitutional rights, and then statutory rights.

CONSTITUTIONAL ANGLE

According to Article 326^[11], the election of the House of the People (Lok Sabha) and of the Legislative Assemblies of States will be based on adult suffrage. It further clarifies that any person who is a citizen of India and has completed eighteen years of age on the day specified by any law will be eligible and entitled to be registered as a voter, unless disqualified under the Constitution of India or any other law enacted by the appropriate legislature on the ground of non-residence, unsoundness of mind, crime or corrupt or illegal practices. This article forms the basis of adult franchising in India.

The Parliament of India later enacted the Representation of the People Act, 1950 (RP Act, 1950) and the Representation of the People Act, 1951 (RP Act, 1951) to operationalize, regulate, and detail the election process in India. Section 16^[12] of the RP Act, 1950, sets similar conditions for registering in the electoral roll, such as being a citizen of India. Similarly, Section 19^[13] of the same Act sets two conditions for registration as a voter: to be eighteen years of age on the qualifying date, and to be an ordinarily resident in the concerned constituency.

Considering the constitutional provision and the special statute, the right to vote is both a constitutional and statutory right. But that is not precisely the case. The various judicial precedents have time and again clarified this matter with precision.

JUDICIAL PRECEDENTS AND A NOTABLE DISSENT

Indian courts have issued several landmark rulings related to the legal status of the right to vote:

N.P. Ponnuswami v. Returning Officer (1952)^[14]: A Constitutional Bench of the Supreme Court held that the right to vote is a statutory right, subject to checks and balances imposed by it.

Jyoti Basu v. Debi Ghosal (1982)^[15]: The court upheld its earlier judgment by stating that the right to vote is a statutory right, neither a fundamental right nor a right originating from a common law system.

People's Union for Civil Liberties (PUCL) v. Union of India (2003)^[16]: A diversion from its earlier stance, the court ruled that the right to vote could be considered a constitutional right, though still not fundamental.

Kuldip Nayar v. Union of India (2006)^[17]: Restated that the right to vote is a statutory right.

Raj Bala v. State of Haryana (2015)^[18]: Again, voting was recognized as a constitutional right based on earlier judicial interpretations.

Anoop Baranwal v. Union of India (2023)^[19]: The majority opinion of the Supreme Court has again confirmed that the right to vote is primarily a statutory right, but in a partial dissent opinion, Justice Ajay Rastogi offered a nuanced perspective: while the right to vote may not be a fundamental right in itself, the moment a voter steps into the polling booth and casts their ballot, their act of choosing becomes an exercise of freedom of expression under Article 19(1)(a)^[20]. At that final stage, the voter's choice is not just a statutory exercise, but an expression of opinion and preference, protected as free speech.

WAY FORWARD

The Indian Courts have repeatedly upheld and clarified that the right to vote in India is indeed a statutory right, neither a fundamental nor a constitutional right. However, this right is crucial for the free and fair elections in India, which comes under one of the basic structures of the constitution. Yet, considering this right just one of the many other statutory rights raises some serious questions, especially given its central role in maintaining the democratic culture in this country. In contrast, the court in the United States of America has interpreted various provisions to safeguard the right to vote as fundamental, which remains the cornerstone of American democracy.^[21] Furthermore, the right to vote is part of section 19^[22] of the Bill of Rights in South Africa, making it one of the fundamental rights available to its citizens.

The partial dissenting opinion of Justice Ajay Rastogi in the recent Anoop Baranwal judgment offers this right a hope to get elevated to at least a constitutional right, if not a fundamental one. Such recognition will create a positive obligation on the state to facilitate the elections more inclusively and address a much-needed solution to the votes lost due to inter-state and intra-state migration. After all, the right to vote should be considered one of every citizen's basic entitlements in a thriving democracy like ours.

---

^[1] “India’s Democracy: Illusion or Reality? - Association for Asian Studies” (Association for Asian Studies, June 20, 2023) <https://www.asianstudies.org/publications/eaa/archives/indias-democracy-illusion-or-reality/>

^[2] PTI, “India Now Has 99.1 Crore Voters: Election Commission” The New Indian Express (January 23, 2025) <https://www.newindianexpress.com/nation/2025/Jan/23/india-now-has-991-crore-voters-election-commission>

^[3] Anwar Z, “Legal Status: Overview, Definition, and Example” (Cobrief, April 17, 2025) <https://www.cobrief.app/resources/legal-glossary/legal-status-overview-definition-and-example/>

^[4] Rai D, “Concept of Rights and Duties under Jurisprudence - IPleaders” (iPleaders, January 27, 2022) <https://blog.ipleaders.in/concept-of-rights-and-duties-under-jurisprudence/>

^[5] “Legal Rights (Stanford Encyclopedia of Philosophy)” (January 27, 2023) <https://plato.stanford.edu/entries/legal-rights/>

^[6] Constitution of India 1950, art 32.

^[7] “Key Difference between Constitutional Rights & Fundamental Rights” <https://thelegalschool.in/blog/difference-between-constitutional-rights-and-fundamental-rights>

^[8]  Constitution of India 1950, art 300A.

^[9]  Constitution of India 1950, art 226.

^[10] Kumar M and Kumar M, “Constitutional Rights vs. Statutory Recognition: Critical Inquiry on Article 30 - Believers IAS Academy” (Believers IAS Academy - Best IAS Academy in Bangalore, January 24, 2024) <https://believersias.com/constitutional-rights-vs-statutory-recognition-critical-inquiry-on-article-30/>

^[11] Constitution of India 1950, art 326

^[12] Representation of the People Act 1950, s 16

^[13] Representation of the People Act 1950, s 19

^[14] N.P. Ponnuswami v Returning Officer, Namakkal Constituency [1952] SCR 218

^[15] Jyoti Basu v Debi Ghosal (1982) 1 SCC 691

^[16] People’s Union for Civil Liberties (PUCL) v Union of India (2003) 4 SCC 399

^[17] Kuldip Nayar v Union of India (2006) 7 SCC 1

^[18] Rajbala v State of Haryana (2016) 1 SCC 463

^[19] Anoop Baranwal v Union of India (2023) 6 SCC 1

^[20] Constitution of India 1950, art 19(1)(a)

^[21]  “Reynolds v. Sims (1964)” (LII / Legal Information Institute) <https://www.law.cornell.edu/wex/reynolds_v._sims_(1964)>

^[22] Constitution of the Republic of South Africa 1996, s 19