Should Voting be a Fundamental Right or a Fundamental Duty?
As established in ‘Kuldip Nayar v Union of India’, voting in India is neither a fundamental right nor fundamental duty, but merely a legal right, given to the people by means of the Representation of the People Act, 1950.
In order to simplify things, let us first understand what a fundamental duty exactly is and why voting as a fundamental duty would scarcely change anything. Fundamental duties impose a moral obligation upon the citizens of India to follow certain guidelines, yet much like the Directive Principles, they are non-justifiable, without any legal sanction in case of violation or non-compliance. Hence, transforming voting from a legal right to a fundamental duty would deprive it of the legal protection it enjoys by virtue of being a legal right.
The differences, for context, between constitutional rights and fundamental rights are:
- Legal rights are derived from ordinary law framed by the legislature whereas fundamental rights are a result of recognition by the Constituent Assembly and are enshrined in the Constitution, where they are protected from any violation of any authority.
- Legal rights are at the mercy of the State and can be taken away at whim. However, fundamental rights are protected by constitutional procedures and cannot be taken away so easily.
In order to understand better, the reluctance of the people to accept voting as a right anywhere around the globe and then further link it to the polity of India, a study conducted by Peter D. Hart Research Associates should be noted, wherein the researchers found that far more focus groups saw voting as a responsibility or a privilege than a right. Most of the participants in the said study perceived voting as a responsibility because it highlighted the importance of choosing the government, whereas the participants who chose to see it as a privilege thought so because they believed that their ancestors had fought for it, or contrasted the presence of such provision against other nations.
The Indian State has recognized voting as a privilege more than a right, as is evident by Supreme Court decisions (Kuldip Nayar v UoI) or by the provisions of the legislation that allow for disfranchisement. Disqualification from voting also disqualifies an individual from candidature, thus allowing the State to remove unwanted elements from the electoral process (such as criminals, lunatics etc.) However, since the legal provisions are not carefully elaborated, they disqualify prisoners without discrimination, depriving both heinous criminals and under trials in the same go. Hence, voting provisions in India require immediate review and if voting is to be elevated to a fundamental rights, adequate considerations have to be made towards exceptions.
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