On September 23, an Indian Express investigation revealed an unprecedented rift within the three-member Election Commission of India (EC), with Election Commissioners Sukhbir Singh Sandhu and Vivek Joshi recording 14 objections over 10 months against Chief Election Commissioner Gyanesh Kumar, regarding alleged unilateral changes to rules, voter additions/deletions, and centralised data access, without the Commission’s full approval.
The report also found that 97 eligible voters from Goa were excluded from the electoral roll after the centralised ECINet software prevented ground-level Electoral Registration Officers (ERO) from reversing decisions. More concerningly, the consequences extend beyond the loss of voting rights. Reportedly, several State schemes use electoral rolls to establish eligibility, including the Goa Mediclaim Scheme. The scheme covers super-speciality treatments unavailable in government hospitals, such as dialysis, angioplasty, open-heart surgery, transplants, chemotherapy and cochlear implants, and is available only to State voters. This issue has once again cast a spotlight on the ‘right to vote’, the foundational processes of India’s electoral machinery, and the genesis of India’s ‘universal adult suffrage’ (UAS).
What shaped adult suffrage in India?
India’s constitutional promise of the ‘right to vote’ differs significantly from that of many Western democracies. Reflecting the flawed belief, espoused by thinkers like J.S. Mill, that voting should be reserved for the “enlightened”, countries like the U.K. initially restricted the franchise to male property owners. Universal male suffrage emerged only in 1918, and women were granted the ‘right to vote’ a decade later in 1928. In the U.S., although the 15th and 19th Amendments extended voting rights to African Americans (1870) and women (1920), systemic barriers such as poll taxes and literacy tests continued to disenfranchise many for decades thereafter.
In sharp contrast, India’s choice of immediate, universal inclusion ensured ‘democratic equality’ from the outset, bypassing the prolonged and often violent struggles seen elsewhere. Article 326 of the Constitution granted every adult citizen the ‘right to vote’, regardless of gender, caste, religion, education, or property. Initially set at 21 years of age, this threshold was lowered to 18 by the 61st Constitutional Amendment in 1989. This commitment to a robust, inclusive democracy found further constitutional reinforcement in a series of Supreme Court judgments, notably starting with Kesavananda Bharati v. State of Kerala (1973), which established democracy as part of the ‘basic structure’ doctrine. For this ideal to function meaningfully, people should be able to freely decide the fate of their government.
This inclusive vision was operationalised through two key laws: the Representation of the People Act, 1950, which governs the preparation and revision of electoral rolls; and the 1951 Act, which regulates election conduct, candidature, and electoral offences. The EC has repeatedly introduced administrative innovations to realise this ‘constitutional promise’.
Notably, the then Chief Election Commissioner Sukumar Sen, faced with the task of enrolling 173 million largely illiterate voters, turned a logistical hurdle into a democratic breakthrough by introducing election symbols, making UAS practically accessible.
In India, the EC has the responsibility to reach the last citizen, wherever they may be, to actualise their ‘right to elect’.
What is the legal status of right to vote?
The legal status of the ‘right to vote’ in India has long been debated, and whether it is classified as a statutory, constitutional, or fundamental right determines how easily it can be changed, how it is enforced, and the level of legal protection it receives. Although Dr. B.R. Ambedkar and K.T. Shah proposed including it in the Constitution’s fundamental rights part, the Constituent Assembly’s Advisory Committee ultimately rejected the idea. Importantly, a Constitution Bench of the Supreme Court in Kuldip Nayar v. Union of India (2006) held that the ‘right to elect’ is a statutory right under Section 62 of the RPA, 1951, and not a fundamental or constitutional right.
Though a two-judge Bench in Rajbala v. State of Haryana described the ‘right to vote’ as a constitutional right in 2015, the larger bench ruling in Kuldip Nayar prevails. Again, in Anoop Baranwal v. Union of India (2023), the top court declined to pronounce on the issue, noting that it had already been settled by the five-judge Bench in the Kuldip Nayar judgment. However, in his dissent, Justice Ajay Rastogi asserted that the ‘right to vote’ is an expression of Article 19(1)(a) and reflects the essence of Article 21. Yet, as this view remains a minority opinion, the ‘right to elect’ continues to be recognised as a statutory right
Nevertheless, even though it is not a fundamental right, courts have regarded the ‘right to vote’ as an inseparable part of democracy, anchoring their reasoning in the idea that it enables citizens to shape governance, making it a “democratic imperative” vital to the Indian republic’s survival.
Why do we need accurate poll rolls?
Free and fair elections rest on accurate electoral rolls under the RPA, 1950. Inaccuracies — such as mass omissions, ineligible inclusions, duplicates, or incorrect entries — undermine the “one person, one vote” principle by enabling impersonation, disenfranchisement, or dilution of votes, ultimately distorting the people’s mandate. Therefore, the EC is empowered under Section 21 of the 1950 Act to prepare and revise these rolls to ensure integrity. The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 lays down how the EC must transact its business. Section 17 requires the Commission’s business to be conducted in accordance with the Act, while Section 18 provides that its procedure and allocation of business may be regulated by unanimous decision. It further requires business to be transacted as far as possible unanimously, but where the CEC and other Commissioners differ, the matter is decided by majority.
Deriving its authority from Article 324, the EC serves as the constitutional guardian of elections, with powers of superintendence, direction, and control. A key duty is preparing accurate electoral rolls, guided by Section 19 of the RPA, 1950, which mandates that any citizen aged 18 or above, “ordinarily resident” in a constituency and not disqualified, is entitled to be registered. “Ordinary resident” implies a genuine, continuous presence, not a temporary stay. For example, a student living in a hostel may not qualify if their permanent home and intent to return lie elsewhere. Mere temporary absence from one’s place of ordinary residence does not negate one’s status as an ordinary resident of that location. This criterion prevents fraudulent registrations and ensures voters maintain real ties to their constituencies, preserving representative accountability.
While discrepancies may arise, courts have consistently held that only substantial and systemic errors that demonstrably “materially affected” the election outcome can compromise the sanctity of the electoral roll. Minor mistakes or isolated disenfranchisement are insufficient.
Yet the recent Goa episode complicates this comfortable “substantial versus isolated” binary that courts have relied on. The Indian Express report revealed that 97 eligible voters were dropped from the rolls, not through electoral fraud but because the ECINet software architecture itself denied EROs the authority to reverse erroneous deletions. What makes the episode damning is not merely the exclusion, but the apparent unresponsiveness that followed. The EROs reportedly flagged the anomalies to the Commission by email, yet the corrections were not restored. This is not the isolated clerical error that courts have historically forgiven; it is a systemic failure baked into the software’s design, compounded by administrative inertia.
While the right to inclusion or objection in electoral rolls is conferred on individuals, not political parties, the court in Lakshmi Charan Sen v. A.K.M. Hassan Uzzaman (1985) observed that in a largely illiterate and politically unaware electorate, parties should take steps to ensure eligible voters are included, and ineligible ones are removed. Given India’s party-based Parliamentary system, such vigilance will help in preserving ‘electoral integrity’.
What lies ahead?
The revelations against the EC lend fresh urgency to the argument that the ‘right to vote’ ought to be elevated from a statutory guarantee to a fundamental one. If the body constitutionally tasked with safeguarding the franchise can itself be riven by disputes over unilateral action, leaving the citizen’s only recourse to the EC’s internal correction mechanisms, or to a statutory right.
Many scholars argue that the ‘right to vote’ cannot be regarded as merely a statutory right, as it flows from Article 326, and any legislation regulating it must conform to the parameters prescribed by Articles 325 and 326. It is therefore necessary to ensure that the legislature does not impose irrational or unreasonable restrictions on the ‘right to vote’, particularly since “free and fair elections” and “democracy” are basic features of the Constitution.
Justice Rastogi’s dissent in Anoop Baranwal, over the legal status of the ‘right to vote’, offers doctrinal ground for a larger Bench to revisit the question that the majority in Kuldip Nayar considered settled.
Elevating the ‘right to vote’ to fundamental status would not diminish the EC’s authority to purify rolls; it would instead subject that authority to the heightened standard of judicial review reserved for fundamental rights, ensuring that the drive to centralise electoral administration is always weighed against, rather than allowed to override, the citizen’s claim to be counted. In a democracy where software now mediates the relationship between the voter and the ballot, the constitutional status of the ‘right to vote’ can no longer remain a matter of legislative grace.
(Kartikey Singh is a lawyer based in New Delhi.)
