Recently, a Congress leader revived an old constitutional debate by demanding that voting should be recognised as a fundamental right. At first sight, the demand appears unexceptionable. In a democracy, what could be more fundamental than a citizen’s right to choose those who govern? Yet, for more than seven decades, the Supreme Court of India has consistently held that the right to vote is not a fundamental right but merely a statutory right.
This judicial position, though well established, has become increasingly difficult to reconcile with the Court’s own evolving jurisprudence. In a series of landmark decisions, the Court has gradually transformed the voter from a passive statutory creature into an active constitutional actor.
The result is a curious paradox: while the act of voting itself continues to be described as statutory, many of its essential facets have already acquired constitutional protection.
The traditional position dates back to N.P. Ponnuswami vs Returning Officer (1952), where the Court held that the right to vote and the right to contest elections are not common law rights but rights created by statute. The principle was reaffirmed in Jyoti Basu & Others vs Debi Ghosal & Others (1982), where Justice O. Chinnappa Reddy observed that the right to elect, “fundamental though it is to democracy”, is neither a fundamental right nor a common law right, but “purely a statutory right”. A Constitution Bench reiterated this position in Kuldip Nayar vs Union of India (2006), holding that while democracy forms part of the basic structure of the Constitution, the individual right to vote flows from legislation, principally the Representation of the People Acts.
The logic behind this approach is understandable. The Constitution does not expressly enumerate the right to vote among the fundamental rights contained in Part III. Parliament, therefore, enjoys considerable latitude in prescribing qualifications, disqualifications and procedures governing elections.
However, the story does not end there.
Constitutionalising the poll process
Beginning in the early years of this century, the Court embarked upon a process of constitutionalising the electoral process. In Union of India vs Association for Democratic Reforms (2002), the Court held that voters have a right to know the criminal antecedents, educational qualifications and financial assets of candidates. This right was located squarely in Article 19(1)(a), the fundamental right to freedom of speech and expression. The Court reasoned that meaningful participation in democracy is impossible unless voters are adequately informed.
A year later, in People’s Union of Civil Liberties vs Union of India (2003), the Court drew an important distinction. While reiterating that the right to vote is statutory, it held that the freedom of voting — that is, the freedom to make an informed choice — is a fundamental right protected by Article 19(1)(a).
The most intriguing development came in the 2013 NOTA judgment. Recognising the option of “None of the Above”, the Court held that a voter’s decision to reject all candidates is a form of political expression protected by Article 19(1)(a). The Court further held that secrecy of the ballot must extend even to those who choose not to vote for any candidate.
This produces an extraordinary constitutional anomaly. The Court has effectively held that the right to know is fundamental, the freedom to make an informed choice is fundamental, the secrecy of the ballot is fundamental, and even the right to reject all candidates is constitutionally protected. Yet, the act of voting itself continues to be treated as a mere statutory entitlement.
One is tempted to ask: if the Constitution protects the right to reject all candidates, why does it not protect the right to choose one?
Recent constitutional jurisprudence also points in this direction. In Anoop Baranwal vs Union of India (2023), Justice Ajay Rastogi, in his separate opinion, expressly favoured recognising voting as a fundamental right. Although this view did not command a majority, the Constitution Bench repeatedly referred to voting as a constitutional right rather than merely a statutory one. This marks an important shift in judicial understanding. The Court may not yet have elevated voting to the status of a fundamental right, but it has undoubtedly moved beyond the narrow statutory conception that dominated earlier decisions.
The anomaly becomes even more striking when viewed through the prism of the basic structure doctrine. Since Kesavananda Bharati vs State of Kerala (1973), the Court has repeatedly held that democracy forms part of the Constitution’s basic structure. In Indira Nehru Gandhi vs Shri Raj Narain & Anr. (1975), the Court underscored that free and fair elections are an essential feature of democracy. Subsequent decisions have consistently reaffirmed this principle.
Democracy begins with votes
But democracy does not exist in the abstract. It operates through elections, and elections derive their legitimacy from the participation of citizens through the ballot. The vote is the very instrument through which popular sovereignty is exercised. It is through the vote that “We, the People” periodically renew the legitimacy of the state and hold governments accountable.
If democracy is a part of the Constitution’s basic structure, and if free and fair elections are indispensable to democracy, it is difficult to explain why the citizen’s right to vote should remain outside the constitutional core. To say that democracy is basic to the Constitution while the citizen’s vote is merely a statutory right appears incongruous. A democracy without voters is inconceivable.
This does not necessarily mean that every aspect of voting should be elevated into an absolute fundamental right immune from regulation. Parliament must continue to prescribe qualifications, disqualifications and procedures necessary for the conduct of elections. Age requirements, electoral rolls, residency conditions, disqualifications for corrupt practices and other regulatory provisions are indispensable for orderly elections.
What requires constitutional recognition is not every procedural detail but the core right of every eligible citizen to participate in the democratic process.
This becomes particularly evident when one examines Article 326 of the Constitution. The Article mandates that elections to the Lok Sabha and State Legislative Assemblies shall be based on universal adult suffrage. Every citizen above the age of 18 is constitutionally entitled to be registered as an elector, subject only to narrowly defined disqualifications. The source of this entitlement is not legislation but the Constitution itself. The Representation of the People Acts merely operationalise that constitutional command.
Thus, while the mechanics of voting may be statutory, the citizen’s entitlement to be a voter flows directly from the Constitution. Exclusion from the electoral roll, except in accordance with constitutionally permissible limitations, therefore, strikes at a constitutional guarantee.
A matter for the Court to revisit
The distinction between statutory and constitutional rights may have served a useful purpose in the early years of the Republic, when electoral jurisprudence was still in its infancy. But the Court’s own decisions have steadily blurred that distinction by progressively constitutionalising various facets of voting.
Perhaps the time has come for the Court to revisit an old doctrine. In a Constitution where democracy and free and fair elections constitute the basic structure, the citizen’s vote cannot remain a constitutional orphan. The ballot is not merely a statutory privilege conferred by Parliament. It is the instrument through which popular sovereignty is expressed and the Republic periodically renews its democratic legitimacy.
After all, if the Constitution protects the right to reject every candidate, it can scarcely deny protection to the right to choose one.
S.Y. Quraishi is a former Chief Election Commissioner of India and author of An Undocumented Wonder: The Making of the Great Indian Election
Published - July 07, 2026 12:16 am IST
