British statesman and writer, Winston Churchill, who twice served as Prime Minister of the United Kingdom (U.K), highlighted the importance of the vote in a democratic election in the following words: “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”.
Through voting, people can have a sense of ownership over their government and bring about change. Voting also allows citizens to express their thoughts on a country, local constituency, or candidate. Voting is the best medium that provides citizens an opportunity to have their say and contribute to the progress and development of a country.
The right to vote is guaranteed by the Universal Declaration of Human Rights (1948) and the International Covenant on Civil and Political Rights (1966). Article 21 of the UDHR envisages that “everyone has the right to take part in the government of his country, directly or through freely chosen representatives.” Further elaborating on the importance of a vote, Article 25 of the International Covenant on Civil & Political Rights, 1966, states that:
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.
Explaining the expression “voting,” the Apex court in Lily Thomas Vs. Speaker, Lok Sabha [(1993) 4 SCC 234] observed, “Voting is the formal expression of will or opinion by the person entitled to exercise the right on the subject or issue.” Further, it has been observed that the citizens of the country are enabled to take part in the Government through their chosen representatives. In a Parliamentary democracy like ours, the Government of the day is responsible to the people through their elected representatives. The elected representative acts or is supposed to act as a live link between the people and the Government.
The right to vote for the candidate of one’s choice plays a vital role in democratic polity. It is the cornerstone of Indian democracy, enabling citizens to choose the representatives of their choice. Highlighting the constitutional importance of voting, the apex court in Jyoti Basu Vs. Debi Ghosal [1982 (3) SCR 318] pointed out in no uncertain terms that: “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.” With great reverence to the eminent Judges, I would like to clarify that the right to vote, if not a fundamental right, is certainly a constitutional right. The right originates from the Constitution and, in accordance with the constitutional mandate contained in Article 326, the right has been shaped by the statute, namely, the Representation of People’s Act.
The right to vote for the candidate of one’s choice is of the essence of democratic polity. This right is recognized by our Constitution and is given effect to in specific form by the Representation of the People Act. The Constituent Assembly debates reveal that the idea to treat the voting right as a fundamental right was dropped; nevertheless, it was decided to provide for it elsewhere in the Constitution. This move found its expression in Article 326, which states that “the elections to the House of the People and to the Legislative Assembly of every State shall be on the basis of adult suffrage; that is to say, every person who is a citizen of India and who is not less than 18 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 practices shall be entitled to be registered as a voter at any such election.”
The above remarks made by the apex court give a clear understanding that the Right to vote is a Constitutional right though not a fundamental right but the right to make a choice by means of the ballot is part of freedom of expression guaranteed under Article 19(1)(a).
The scope of the citizen’s right to express his/her opinion through the medium of the franchise was further developed in Union of India v. Association for Democratic Reforms and another [(2002) 5 SCC 294 (LB)]. The Court, while referring to various judgments, discussed various facets of the term ‘election’ and the width and amplitude of the Commission’s power under Article 324 and laid down seven propositions of which proposition No. 7 is extracted and reproduced below:
Under our Constitution, Article 19(1)(a) provides for freedom of speech and expression. Voter’s speech or expression in the case of an election would include casting of votes, that is to say, the voter speaks out or expresses by casting vote. For this purpose, information about the candidate to be selected is a must. Voter’s (little man — citizen’s) right to know antecedents including the criminal past of his candidate contesting election for MP or MLA is much more fundamental and basic for the survival of democracy. The little man may think over before making his choice of electing lawbreakers as law-makers.
The aforesaid judgment crystallizes an emerging theme in Indian constitutional jurisprudence: the connection between the constitutional right to freedom of speech and expression [Article 19(1)(a)] and parliamentary elections.
While upholding the right of citizens to cast a negative vote & to serve the connection between the constitutional right to freedom of speech and expression [Article 19(1)(a)] and parliamentary elections, in PUCL v. Union of India (2013), the Supreme Court of India upheld the constitutional right of citizens to cast a negative vote in elections. The CJI said: “Giving the right to a voter not to vote for any candidate while protecting his right of secrecy is extremely important in a democracy. Such an option gives the voter the right to express his disapproval of the kind of candidates being put up by the parties. Gradually, there will be a systemic change and the parties will be forced to accept the will of the people and field candidates who are known for their integrity.” Highlight the essence of voting “National Voters’ Day is celebrated every year on 25th, January, which aims to educate new voters on the importance of their vote and responsibility to participate in elections.
Major Electoral Reforms
Electoral reforms can make the democratic process more inclusive by bringing more people under the electoral process, reduce corruption, which is pervasive, and make India a stronger democracy. Major Electoral reforms undertaken by the Election Commission of India post-2000 are:
Lowering of Voting Age (61st amendment)
Increase in the number of proposers and the security deposit
Electronic Voting Machine (EVMs)
Disqualification on conviction for violating the National Honours Act, 1971
Restriction on contesting from more than 2 constituencies
Reduction in campaigning period
Prescribing the period for Bye-elections
Cap on election expenditure
Restriction on exit polls before the final phase is over
Voting through postal ballot
Declaring of criminal antecedents, assets, etc by the candidates
The Election Commission of India also prioritizes accessibility for disadvantaged groups and has implemented Model Polling Booths to cater to women, children, and older individuals. The Systematic Voter’s Education and Electoral Participation program aim to fill gaps in voter participation.
Additionally, the Indian Electoral System has been made more flexible, including the introduction of Voter Verifiable Paper Audit Trail (VVPAT) machines for transparency, the addition of the ‘None Of The Above’ (NOTA) Option, which allows voters to choose not to select any nominated candidate, and the decriminalization of elections through the declaration of criminal records by candidates.
However, challenges still remain, such as Criminalisation of Politics and Politicization of Criminals, misuse of social media, casteism, regionalism, communalism, lack of moral values in politics, misuse of Government machinery, and proxy voting for non-resident Indians. Efforts should also be made to facilitate voting for inter-migrants and to address the entry of criminals into politics. Alternative methods of elections, such as the Proportional Representation System, should also be considered. The strength of Indian democracy can be further strengthened when all parties and stakeholders take their responsibility seriously and contribute to electoral reform.
To stress fairness & transparency in the electoral process, In Mohinder Singh Gill v. Chief Election Commissioner [(1978) 1 SCC 405], the Constitution Bench, after quoting the words of Sir Winston Churchill, proceeded to add ‘if we may add, the little, large Indian should not be hijacked from the course of free and fair elections by mob muscle methods, or subtle perversion of discretion by men “dressed in little, brief authority”. For “be you ever so high, the law is above you”.
More importantly, the proposal for ‘One Nation, One Election’ pending consideration before a high-level committee headed by President Ram Nath Kovind needs to be taken to its logical conclusion without any delay so as to prevent massive expenditure by the Government and other stakeholders, diversion of security forces, and other electoral officers engaged in such elections from their primary duties for significantly prolonged periods, disruption in developmental works on account of the prolonged application of Model Code of Conduct, etc.
The right to vote is a basic human right that is essential for the functioning of a democratic society. It is the foundation of our democracy and must be protected and expanded for all citizens. The ability to vote is not only a right but a national duty, so as to ensure that the voices of all citizens are heard and to have their equal say in the political process of the country. Every vote counts, and every citizen deserves the right to ensure that all citizens get an opportunity to vote is to make voting as accessible as possible. This includes measures such as automatic voter registration, early voting, developing an anywhere voting app, email-in voting, WhatsApp voting, etc. It also includes measures to make voting accessible to people with disabilities, such as accessible polling places and voting equipment. To ensure more fairness & transparency in the electoral process, immediate steps need to be taken to address the issues and challenges, like casteism, communalism, misuse of Government machinery, etc., that hamper the smooth conduct of elections in our country.
Another way to ensure the right to vote is through awareness programs. Citizens need to be informed about the candidates and issues on the ballot, as well as their rights as voters. This is especially important for the young population, who are often the least likely to vote. A separate chapter on Voting Rights should be introduced in the school curriculum across the country so as to inculcate the essence of voting among the younger generation that will certainly strengthen the democratic setup in our country. All other efforts must be made to ensure that all citizens have the right to vote and that their votes are counted fairly.
The writer is a Government Law Officer, Department of Law, Justice and Parliamentary Affairs, UT of J&K. He can be reached at [email protected]