Right to vote: The Republic’s undelivered promise

Elevating it to a fundamental right would enable real-time judicial scrutiny of voter suppression.

There is a peculiar irony embedded in the architecture of the Indian Constitution. A document that opens with the sovereign declaration of "We, the People," that derives its entire legitimacy from the consent of the governed, does not in express terms recognise the right to vote as a fundamental right. For over seven decades, this omission has been treated as a minor jurisprudential footnote. However, the May 2026 assembly election results, which excluded over 1.6 crore voters, have deepened anxieties around electoral integrity in contemporary India. The omission now appears anything but minor.

This was not an oversight born of indifference. The Constituent Assembly's own debates reveal a striking, and largely forgotten, episode. Near-consensus had emerged that the right to vote should be treated as a fundamental right. The Fundamental Rights Sub-Committee and the Minorities Sub-Committee both recommended its inclusion in Part III. The Advisory Committee, however, feared that such a clause might be objected to by representatives of the Princely States, with whom negotiations for a unified India were still ongoing.

C Rajagopalachari argued that it could not be taken for granted that the Union Legislature would be elected by direct vote. Eventually, a compromise suggested by Govind Ballabh Pant was adopted: the right to vote would not enter the chapter on fundamental rights, but would instead find mention in the Chairman’s forwarding letter recommending principles for the framing of the Constitution. What began as political pragmatism during a delicate moment of national unification hardened, over decades, into a permanent constitutional condition. The framers intended a compromise; what endured was a lacuna.

The Supreme Court's position, articulated most clearly in Jyoti Basu v. Debi Ghosal (1982), has since been unambiguous. The right to elect, the Court held, is "neither a fundamental right nor a common law right. It is pure and simple, a statutory right." A citizen aggrieved by disenfranchisement cannot invoke Article 32 before the Supreme Court. The most fundamental act of democratic participation is thus placed beyond the most powerful remedy the Constitution offers.

That constitutional position has remained undisturbed for over four decades. In the intervening years, however, electoral administration has grown considerably more complex. Large-scale deletions from electoral rolls, disproportionately affecting migrants, minorities, women, and tribal communities, have mounted steadily as a concern. The adjudication of these disputes proceeds through statutory mechanisms that are slow, difficult to navigate without legal literacy, and inaccessible to those who most need them. A citizen whose name has been wrongly deleted has no direct constitutional remedy. The democratic moment passes. The vote is lost. No subsequent statutory remedy restores what has been taken.

Restoring the founders’ vision

Elevating the right to vote to the status of a fundamental right would alter this calculus entirely. It would require the Election Commission of India (ECI) to approach electoral roll management not merely as an administrative exercise but as a rights-compliance obligation. Voter suppression, by design or by neglect, would become judicially reviewable in real time.

Concerns against such a reform have generally centred on institutional consequences rather than democratic principles. Election law jurisprudence has long proceeded on the premise that elections are time-bound, procedurally intricate exercises in which judicial intervention, once begun, is difficult to contain. The fear is that elevating the right to vote into Part III would expand constitutional litigation around electoral administration and unsettle the existing statutory framework governing elections. This concern mistakes constitutional scrutiny for constitutional paralysis.

The Constitution has never treated any fundamental right as absolute. A provision conferring the right to vote, subject to reasonable restrictions prescribed by law, would preserve all existing regulatory frameworks. What it would change is the burden: the State would be required to justify restrictions before a court applying a proportionality standard, rather than leaving the citizen to navigate a statutory labyrinth without constitutional footing.

The Supreme Court's unanimous judgment in Justice K S Puttaswamy (Retd.) v. Union of India (2017) is instructive here. In recognising privacy as a fundamental right despite its absence from the express text of Part III, the nine-judge bench affirmed that the Constitution must be read as a living document, animated by values rather than frozen by historical circumstance.

As Justice Krishna Iyer observed in Mohinder Singh Gill v. Chief Election Commissioner (1978), "the heart of the Parliamentary system is free and fair elections periodically held, based on adult franchise." More recently, in Anoop Baranwal v. Union of India (2023), Justice Ajay Rastogi declared the right to vote a fundamental right flowing from Articles 15, 17, 19, and 21, a view that went further than the majority, which treated it as a constitutional right rather than a fundamental one. Seventy-eight years after independence, there is an opportunity to realise the framers' full vision, which political circumstances once forced them to defer.

An amendment to Part III, guaranteeing every citizen the right to vote subject to reasonable restrictions prescribed by law, would achieve what the founders intended but could not deliver. The Princely States are gone. The constraints of 1947 disappeared long ago. What remains is a constitutional gap entirely within Parliament’s power to close.

(The writer is a lawyer and former political consultant)

Disclaimer: The views expressed above are the author's own. They do not necessarily reflect the views of DH.