Protecting the Right to Vote

On July 10, the Supreme Court directed the Election Commission to include Aadhaar, EPIC, and ration card for Bihar’s Special Intensive Revision of electoral rolls, underscoring that the right to vote is fundamental to the republic.

Universal Adult Suffrage and Identity Verification in India

1. Historical Context of Universal Adult Suffrage (UAS)

• Global Comparison: Many democracies adopted UAS gradually—Britain (males 1918, females 1928), U.S. via 15th/19th Amendments—but India enshrined UAS in Article 326 from the Constitution’s inception.
• Democratic Ideology: From the start, Indian electoral law rejected the J.S. Mill–style elitist view, guaranteeing inclusion regardless of gender, caste, education, or wealth.

2. Legal Foundations of Electoral Rolls

• Constitutional & Statutory Framework:
  • UAS embedded via Article 326, and operationalised through Representation of the People Acts (RPA) 1950 and 1951.
  • The EC (under Article 324) holds administrative autonomy to prepare and revise electoral rolls.
  • Section 21, RPA 1950, empowers the EC to correct inaccuracies, ensuring electoral integrity.
• Symbol Innovation: ECI overcame literacy barriers by introducing election symbols, enabling nearly 173 million early voters to participate.

3. Electoral Rights: Fundamental or Statutory?

• Supreme Court Rulings:
  • KuldipNayar v. Union of India (2006): ‘Right to vote’ is statutory, not fundamental.
  • Rajbala (2016): Minority bench called it constitutional, but KuldipNayar remains binding.
  • AnoopBaranwal (2023): Reaffirmed KuldipNayar, though dissents sighted it in Articles 19(1)(a) and 21.
• Democratic Imperative: Courts however emphasise that even statutory, voting remains central to democracy’s sustenance.

4. Key Issues in Bihar’s SIR Exercise

• EC’s Document List: Only 11 identity proofs were initially accepted for SIR—excluding widely held documents like Aadhaar—leading to disenfranchisement risk.
• SC's Directive: Inclusion of AADHAAR, EPIC, ration card – “identity matters, not citizenship”; these are used to obtain other proofs like caste certificates.
• Over/Inclusion Concerns: Removing or failing to add eligible voters undermines “one person, one vote”; similarly, allowing ineligible entries distorts representation.

5. Notions of Residency and Citizenship in Voter Rolls

• Ordinary Resident Test (Section 19, RPA) – genuine, continuous presence in a constituency; case-law like Manmohan Singh (1991) sets the precedent.
• Overseas & Service Voters: Eligible under Section 20A and Rule 18, though without proxy or postal voting.
• Citizenship Verification: Lal Babu Hussein v. ERO (1995) invalidated EC-neutral deletion mandates; stressed past rolls and due process for anyone’s removal.

Way Forward

• Ensure Inclusive Identity Verification: The Court’s move to include Aadhaar and ration card removes artificial entry barriers, aligning SIR with constitutional equality and universal suffrage.
• Maintain Electoral Roll Accuracy & Accessibility: The EC should mobilize field-level outreach and public awareness, enabling citizens to verify and update their entries proactively.
• Balance Vigilance with Rights Protection: Address ineligible inclusions efficiently without disenfranchising legitimate voters; distinguish between material errors and minor anomalies, as per Section 21 RPA.
• Boost Transparency & Judicial Oversight: SC’s scrutiny of the SIR’s timing and conduct must continue to ensure that electoral reforms strengthen democracy, not limit participation.
• Legal Reform Considerations: To resolve statutory–constitutional ambiguity, Parliament could clarify the legal status of the right to vote and codify acceptable identity documents in alignment with evolving needs.