Should voting be a fundamental right? What BR Ambedkar, Sardar Patel, Rajaji argued

The Congress on Sunday pitched for declaring the right to vote a fundamental right, arguing that it would act as a safeguard against voter suppression or arbitrary disqualifications that had taken place in different states during the Special Intensive Revision (SIR) of electoral rolls.

Congress leader Jairam Ramesh recalled that the Constituent Assembly had set up an Advisory Committee on Fundamental Rights, Minorities and Tribal and Excluded Areas under the Chairmanship of Sardar Patel and that the panel had discussed the matter.

The courts have also weighed in on the matter, with a two-judge Supreme Court Bench of Justices B V Nagarathna and R Mahadevan in April saying that both the right to vote as well as to contest elections were not fundamental rights but statutory ones and there was a “well settled distinction between the right to vote and the right to contest an election, both of which are statutory in nature, but operate in distinct fields”.

“It is well settled that neither the right to vote nor the right to contest an election is a fundamental right. In Jyoti Basu and others v Debi Ghosal and others and Javed and others v State of Haryana and others, this court authoritatively held that these rights are purely statutory in nature and exist only to the extent conferred by statute,” the judgment noted.

The first debate

The text of the Objective Resolution — which laid out the guiding principles for the framing of the Constitution — did not mention adult suffrage. Subsequent debates on the Resolution also did not touch upon the need to clearly mention universal adult franchise as the bedrock of Indian democracy. However, the first draft of fundamental rights prepared by the Sub-Committee on Fundamental Rights, which the Patel-led Advisory Committee had set up, proposed the right to vote as a fundamental right. The Advisory Committee itself ended up not endorsing it and saying the Constituent Assembly should settle the matter.

The committee had convened on the morning of April 21, 1947, in the Council Chamber of the Council House in what is now the Old Parliament House. Among the many issues it discussed was the setting up of an “Election Commission” (EC) and “the question of franchise regulation or adult franchise”. The members also discussed whether the committee was empowered to make binding recommendations or should leave it to the Constituent Assembly.

Bharatiya Jana Sangh founder Dr Syama Prasad Mookerjee broached the subject of making voting a fundamental right, adding that it “will have to be considered. Shall we make it a fundamental right or shall we leave it to the Franchise Regulations to be made?” To this, Dr B R Ambedkar replied, “Let it be a fundamental right.”

C Rajagopalachari who was then serving as the Minister of Education in the Interim Government of India argued that it was “not an ordinary part of fundamental rights”. P R Thakur who represented West Bengal sought to underline that this matter was one for “the whole Assembly” to discuss and that the Committee’s members “should not appropriate this jurisdiction.”

Ambedkar, however, found support in All India Women’s Conference leader Hansa Mehta that “right to franchise is fundamental” and that it “might be all right for the Union.”

Ambedkar sticks to his position

Both sides offered stiff opposition to each other. Ambedkar stressed that the Constituent Assembly will consider matters “which are sent up to it by the different committees. The main thing will be franchise. This is a fundamental right. Franchise is the principal thing of the Constitution,” he said.

Babu Jagjivan Ram, elected from Bihar, sided with Ambedkar, arguing that franchise “is a fundamental right” and while the details regarding voting may be left to the Constituent Assembly, those present “may decide the right of the citizens to vote here”.

K M Panikkar representing the state of Bikaner stressed that there was “no difference of opinion” and the matter may be left to the Constituent Assembly to make any change. To this, Patel replied that his objection was “to the details” but not to the clause regarding adult franchise. “You are entitled to vote. That of course is a fundamental right,” Patel said.

Rajagopalachari, however, issued a caution about the framing of a broad outline without representation from the “units (states and provinces)”. He argued that the idea behind the clause was that “we must claim it as a fundamental right so that the units also shall be bound to feel likewise”. This, according to him, was “the very mischief which we wished to avoid…we would be prejudging the main work of the Union so to say in framing a constitution, which may be objected to. If we omit the units, no purpose will be served.”

Rajaji, as Rajagopalachari was popularly known, emphasised that the right to have “some share in the government may be considered to be a natural right in every democratic state” but to go into “the details of the franchise is going beyond the province of the committee concerned with the formulation of fundamental rights”.

Ambedkar-Rajaji argument

Stressing that he attached “a very great deal of importance to this clause on adult suffrage”, Ambedkar argued that if the Committee passed the clause, it did not mean “that we have stopped the Constituent Assembly from reconsidering the question”.

In what would be the first mention of the EC, Ambedkar submitted that one of the significant propositions that the “fundamental clause” enunciated was that elections “shall be taken out of the hands of the Government of the day, and that they should be conducted by an independent body which we may here call an Election Commission” to ensure free and fair polls. “Each unit” could also appoint its own commission, he said.

Rajaji replied that while everyone would agree to Ambedkar’s proposal on the conduct of elections, the only matter of contention was whether the issue of making voting a fundamental right should be left to the Constituent Assembly to consider. He reasoned that it could not be taken for granted that the Union Legislature shall be elected by the direct vote from all citizens. “It may be a Federation Constitution. It may be indirectly elected. The Government of the Union may be formed indirectly, so that we cannot assume that every adult or anyone whatever the description may be, shall have a direct vote to the Legislature.”

What needed to be settled first, according to him, was whether there were going to be direct or indirect elections and adult suffrage could be claimed in the case of the former.

Ambedkar reiterated that the Committee’s recommendations would be placed before the entire Assembly and would remain open to modifications.

What Patel said

Patel said he entirely agreed that there should be “due safeguards, there should be adult suffrage and there should be free elections and secrecy of voting”, but, he added, the only question was “whether it should be a fundamental right”.

Ambedkar submitted further that if the report of the committee went to the Assembly “without including in it this fundamental right, it may be later on argued that this particular right either was condemned or was not approved” by it.

“I am perfectly prepared to have this clause with an addition that although we have introduced this clause, we realise that this clause may have to be modified in accordance with the views of the States. This right as enunciated here should go with all the authority of this committee,” he said.

Govind Ballabh Pant, the representative from the United Provinces, struck a conciliatory note, asking whether it would not serve Ambedkar’s purpose if the clause was sent to the Constituent Assembly “not as part of these fundamental rights”, but included in the letter of the Chairman to the effect that the Committee recommend to the Assembly “the following principles in regard to the framing of the constitution, keeping the text as it is”.

Patel himself agreed with the proposition, but Pant cautioned that the only apprehension was that “some people belonging to the States may prick the bubble and say that their rights have been interfered with and so on”.

To this, Ambedkar submitted that while “we are anxious that the Indian States should come in, we shall certainly stick to certain principles and not yield simply to gather the whole lot of them in our Constitution.”

Rajaji came around, stating that the Committee’s report could add a paragraph saying that it was of the opinion that “the constitution of the units as well as the Union shall be based on universal adult suffrage…” Ambedkar disagreed, saying, “The clause should go as it is.”

Rajaji, still unwilling to relent, asked for clarification yet again: “Let us be clear. Is this within our jurisdiction?” he asked. To this, Jagjivan Ram replied, “Let us make a recommendation at least that we want adult franchise.”

Elected from East Punjab, the Congress’s Bakshi Tek Chand stepped in: “I would suggest that the following be sent as a resolution: The committee is of opinion that in the Constitution to be framed the following may be incorporated as part of the Constitution.”

Ambedkar, his heels still firmly dug in, said, “If it is a fundamental right, then the legislature and the executive cannot alter it. If it is not a fundamental right, it may be liable to alteration. This sort of position could be easily safeguarded by a clause in the Constitution.”

“It is agreed that in the letter by Chairman, it will be recommended to the Constituent Assembly that this clause should find a place in the Constitution,” Patel said.

“You might say that this committee is of the unanimous opinion,” Chand added.

In the face of multiple submissions on either side of the debate, Patel suggested that the Committee “leave it for the present…This clause about adult franchise is dropped for the present. It will be decided in the Constituent Assembly”.