Previous Year Question

The answer intended in this UPSC question is Constitutional Right, because India’s electoral system and universal adult suffrage have their basic foundation in the Constitution. The actual exercise of voting and contesting elections is, however, regulated by parliamentary election laws.

The principal constitutional provisions are:

• Article 324: Vests the superintendence, direction and control of elections to Parliament, State Legislatures, and the offices of President and Vice-President in the Election Commission.

• Article 325: Provides for one general electoral roll for every territorial constituency and prohibits exclusion solely on grounds of religion, race, caste or sex.

• Article 326: Provides that elections to the Lok Sabha and State Legislative Assemblies shall be based on adult suffrage. The minimum voting age is eighteen years.

• Articles 84 and 173: Prescribe constitutional qualifications for membership of Parliament and State Legislatures respectively.

• Articles 102 and 191: Deal with disqualifications for membership of Parliament and State Legislatures.

Election rights are regulated in detail by:

• The Representation of the People Act, 1950, which deals with electoral rolls, voter registration and constituencies.

• The Representation of the People Act, 1951, which governs the conduct of elections, voting rights, qualifications and disqualifications of candidates, corrupt practices and election disputes.

• Section 62 of the 1951 Act regulates the right of a registered elector to vote and the applicable restrictions.

Important judicial nuance: In several decisions, the Supreme Court has also described the right to elect and the right to be elected as rights created by statute or statutory rights. This means that the Constitution provides the electoral foundation, while election legislation determines who may vote, who may contest and how these rights are exercised.

The right to vote and the freedom to express one’s electoral choice are also distinct. The actual right to cast a vote is regulated by election law, whereas the voter’s freedom to express a choice is connected with freedom of expression under Article 19(1)(a).

It is not a Fundamental Right because it is not enumerated as such in Part III. Nor is it a Natural Right, because its existence and exercise depend upon the constitutional and statutory electoral framework.