Is the right to vote a fundamental right or a constitutional right?

The Special Judge R.N.Rokade's refusal to let Nawab Malik and Anil Deshmukh, currently under judicial custody, to vote in the Rajya Sabha elections has stirred a debate on whether there is a right to vote in a parliamentary democracy.

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The Minister of Minority  Development and Aukaf of Maharashtra, Nawab Malik and former State Home Minister,  Anil Deshmukh, who are currently in jail in money laundering cases since November 2021 and February 2022 respectively, sought temporary bail for a day to cast their votes in the  Rajya Sabha elections.  Their plea was dismissed on Thursday by Special Judge, R N Rokade, who held  that the accused were not entitled to vote in Rajya Sabha elections.

Both Malik and Deshmukh are members of the Maharashtra legislative assembly and of the electoral college for election of Rajya Sabha members.  But the Enforcement Directorate opposed their plea on the ground that they, as prisoners, did not have voting rights.

The right to vote is a statutory right created under section 62 of the Representation of People's Act (RPA) which means that the right is subject to restrictions prescribed in the RPA. Section 62(5) says no person shall vote if he is confined in a prison, whether under a sentence of imprisonment or transportation or otherwise, or is in the lawful custody of the police.  The only exception envisaged is for persons subjected to preventive detention under any law for the time being in force.

But is it legally correct to treat this merely as a statutory right?

Amit Desai, Malik's counsel, referred to the case of Chhagan Bhujbal, who in 2017, despite being in custody for a money laundering case, was allowed to vote as an MLA, in Presidential elections. The special judge observed that the Presidential and Vice-Presidential elections are governed by the Presidential and Vice Presidential Elections Act, which has no provision to prohibit an undertrial from voting. Desai argued vehemently that a person detained in prison does not lose her right to vote.

The Special Judge relied on Anukul Chandra Pradhan versus Union of India (1997), in which the Supreme Court upheld the validity of Section 62(5) of RPA.   The Special Judge also cited the Delhi High Court's judgment in Praveen Kumar Chaudhary & Ors. versus Election Commission of India (2019) to hold that the classification of the persons who are in jail and who are out of jail is a valid classification.

The Special Judge was not convinced that the Supreme Court's judgment in Nalin Soren versus State of Jharkhand, would apply to this case, because the Court in that case had only permitted the petitioner to participate in the proceedings of the assembly. But the Special Judge appears to have overlooked the fact that the Court had specifically permitted Nalin Soren, a member of the Jharkhand legislative assembly who was facing criminal prosecution and was under police custody , to cast his vote in the confidence motion, moved by the Chief Minister.

The Special Judge conceded, however, that there are divergent views of the High Courts in respect of voting rights of undertrial.  The Orissa High Court, in Sri Ramesh Chandra Jena @ Ramesh Jena versus State of Orissa & Others (2010), allowed a member of the state legislative assembly to exercise his franchise by way of participating in voting process for Rajya Sabha elections. In Banwari Lal Kushwaha versus State of Rajasthan (2016), however, the Rajasthan High Court refused to permit a member of the assembly, who was in prison and under police custody, to vote in the Rajya Sabha elections.

The question whether the right to vote is fundamental came up during the hearing of the right to privacy case in Justice K.S.Puttaswamy versus Union of India (2017).  Justice Jasti Chelameswar, one of the nine Judges in that case, had referred to the need to have a fundamental right to vote.  As right to vote is a legal right, conferred by a statute, it can be taken away by changing the law.

As parliamentary democracy is a basic feature of the Constitution, it is intriguing why one of its essential facets, namely, the right to vote is not considered a fundamental right, which is guaranteed by the Constitution, which could enable a citizen to move Supreme Court under Article 32 for its enforcement.  If declared a fundamental right, right to vote can be curtailed by Parliament only on the test of "reasonable restrictions" under Article 19(2).

Justice Chelameswar, therefore, disagreed that right to vote is merely a statutory right, and found force in the contention that it is a constitutional right. He, however, conceded that a constitutional right can be curtailed by the appropriate legislature.

Malik and Deshmukh, have unsuccessfully, tried to revive the debate on whether a constitutional right to vote can be restricted.  But on account  of the divergence of views of the High Courts on whether an undertrial prisoner's right to vote can be curtailed, the question appears to be far from settled.

(with editorial inputs)