Article 326 and the Right to Vote

The right to vote means every adult citizen can choose who will represent them in the Lok Sabha and the state Legislative Assembly. In India, this right comes from Article 326 of the Constitution, which says elections will be held on the basis of universal adult suffrage: every citizen aged 18 or above can vote, unless a law disqualifies them on a few fixed grounds.

But the Supreme Court has held that the right to vote is a statutory right, not a fundamental right. This single point, "constitutional promise but statutory right", is one of the most tested ideas in Indian polity.

Why does it matter who gives the right?

Rights in India sit at different levels, like floors in a building.

• A fundamental right (Part III) is on the top floor. If it is violated, you can go straight to the Supreme Court under Article 32. Parliament can limit it only in ways the Constitution allows, and courts check such limits very strictly.
• A constitutional right is written somewhere else in the Constitution (like the right to property under Article 300A). Only a constitutional amendment can remove it, but you cannot use Article 32 to enforce it.
• A statutory right is created by an ordinary law of Parliament. Parliament can change it by passing another ordinary law with a simple majority.

So the level of a right decides how easily it can be changed, how you enforce it, and how carefully courts protect it.

Where did universal adult suffrage come from?

Many Western democracies gave the vote slowly. The United Kingdom gave the vote to all adult men only in 1918 and to women on equal terms in 1928. The United States gave legal voting rights to African Americans (15th Amendment, 1870) and women (19th Amendment, 1920), but poll taxes and literacy tests kept many people away for decades. India chose a different path. From the very first election, every adult citizen could vote, whatever their gender, caste, religion, education or property.

This was a bold choice for a poor, mostly unlettered country. For the first general election of 1951-52, the Election Commission under the first Chief Election Commissioner, Sukumar Sen, had to enrol about 173 million voters. Voting ran from 25 October 1951 to 27 March 1952. To help voters who could not read, the Commission gave each party and candidate a picture symbol, a practice that continues today.

What did the Constitution makers decide?

In their drafts, Dr. B.R. Ambedkar and K.T. Shah proposed putting the right to vote in the list of fundamental rights. The Sub-Committee on Fundamental Rights first agreed. But the Advisory Committee of the Constituent Assembly dropped the idea in 1947. One practical reason given was that the princely states, which had not yet fully joined India, might resist it. So the framers placed adult suffrage in Part XV (Elections), in Article 326, instead of Part III.

What do Articles 324 to 329 say?

Part XV of the Constitution deals with elections.

• Article 324: The Election Commission has the "superintendence, direction and control" of elections to Parliament, state legislatures, and the offices of President and Vice-President. It also controls the preparation of electoral rolls.
• Article 325: There will be one general electoral roll for each constituency. No person can be left out of it, or put on a special roll, only because of religion, race, caste or sex. (This ended the colonial system of separate electorates.)
• Article 326: Elections to the Lok Sabha and state Assemblies will be on the basis of adult suffrage. Every citizen who is at least 18 years old on the date fixed by law, and who is not disqualified, is entitled to be registered as a voter.
• Articles 327 and 328: Parliament, and state legislatures where Parliament has not made a law, can make laws on elections, including electoral rolls and delimitation.
• Article 329: Courts cannot question delimitation laws, and an election can be challenged only through an election petition as provided by law.

Who can be disqualified?

Article 326 allows disqualification only on four grounds:

1. Non-residence (not living in the constituency)
2. Unsoundness of mind
3. Crime
4. Corrupt or illegal practice (cheating in elections, like bribing voters)

Parliament cannot invent new grounds outside these four. This is why many scholars say that any election law must stay within the limits set by Articles 325 and 326.

How did the voting age change?

The original Constitution set the voting age at 21. The 61st Constitutional Amendment Act, 1988 lowered it to 18 by amending Article 326. It came into force on 28 March 1989. In the 1989 general election, millions of young people between 18 and 21 voted for the first time.

How does the right work in practice?

Two laws turn the constitutional promise into a working system.

• Representation of the People Act, 1950 (RPA 1950): This law is about the voter list. Section 16 disqualifies from registration a person who is not a citizen, who has been declared of unsound mind by a competent court, or who is disqualified for election offences. Section 19 says a person aged 18 or above who is "ordinarily resident" in a constituency is entitled to be registered there. Section 20 explains ordinary residence, and Section 20A (added in 2010) lets Indian citizens living abroad, who have not taken another country's citizenship, register at the address in their passport. Section 21 covers preparation and revision of the rolls. Section 21(3) lets the Election Commission order a special revision of the roll for any constituency, or part of one, at any time, for reasons it must write down.
• Representation of the People Act, 1951 (RPA 1951): This law is about conducting elections: candidates, voting, offences and election disputes. Section 62 is the key one. It says every person whose name is on the roll can vote, but no one can vote in more than one constituency. Section 62(5) says a person in prison (serving a sentence, or in lawful custody) cannot vote. People held under preventive detention are an exception and can vote by postal ballot.

"Ordinarily resident" means you really live in that place, not just a short stay. Think of a student in a hostel whose permanent home and family are elsewhere. They may not count as ordinarily resident near the hostel. But a short trip away from home does not take away your status where you normally live.

What have the courts said?

This is the heart of the debate. Learn these cases in order.

• N.P. Ponnuswami v. Returning Officer (1952): The Supreme Court said the right to vote or stand in elections is a creature of statute and must be exercised within the law. Election disputes go only through an election petition.
• Kesavananda Bharati v. State of Kerala (1973): It held that the basic structure of the Constitution cannot be destroyed. Later cases made clear that democracy and free and fair elections are part of this basic structure.
• Indira Nehru Gandhi v. Raj Narain (1975): The 39th Amendment (1975) had added Article 329A, which put the election of the Prime Minister beyond the reach of the courts. The Supreme Court struck down clause (4) of Article 329A. It held that free and fair elections are part of the basic structure. This was the first time the basic structure test was used to strike down a constitutional amendment.
• Jyoti Basu v. Debi Ghosal (1982): The Court said the right to elect, "fundamental though it is to democracy", is neither a fundamental right nor a common law right. It is "pure and simple, a statutory right".
• Anukul Chandra Pradhan v. Union of India (1997): The Court upheld Section 62(5) (no vote for prisoners), again calling voting a statutory right.
• PUCL v. Union of India (2003): The Court said voters have a right to know about candidates (their criminal record, assets and education), as part of Article 19(1)(a) (freedom of speech and expression). It made a key distinction: the right to vote is statutory, but the act of casting a vote is a form of expression.
• Kuldip Nayar v. Union of India (2006): A five-judge Constitution Bench said the right to elect is a statutory right under the RPA 1951, not a fundamental or constitutional right. Being a larger bench, this is still the binding law.
• PUCL v. Union of India (2013): The Court ordered the NOTA ("None of the Above") option on voting machines, saying the right to vote also includes the right to reject all candidates.
• Rajbala v. State of Haryana (2015): A two-judge bench, while upholding educational qualifications for Haryana panchayat candidates, described the right to vote as a constitutional right. But a smaller bench cannot overrule a larger one, so Kuldip Nayar prevails.
• Anoop Baranwal v. Union of India (2023): This five-judge case on how Election Commissioners are appointed discussed the question again. The majority opinion observed that the right to vote flows from Article 326. Justice Ajay Rastogi, in a separate opinion, went further. He said the right to vote is an expression of choice under Article 19(1)(a) and reflects Article 21, making it part of fundamental rights. The earlier position of Kuldip Nayar was not formally overruled.
• Association for Democratic Reforms v. Election Commission of India (2026): On 27 May 2026, a bench of Chief Justice Surya Kant and Justice Joymalya Bagchi upheld the Special Intensive Revision (SIR) of Bihar's voter list, which the Election Commission had ordered on 24 June 2025. The Court said the Commission has this power under Article 324 read with Section 21(3) of the RPA 1950. It said the steps taken were not excessive and serve the goal of free and fair elections. The Commission may look into citizenship, but only to check whether a person meets the conditions of Article 326 and Section 16 for being on the roll. The Court also directed the Commission to accept Aadhaar as a valid identity document.

So what is the status today?

As of October 2026, the settled position is: the right to vote is a statutory right, with its roots in the constitutional promise of Article 326. Courts treat it as essential to democracy, but a citizen cannot go to the Supreme Court under Article 32 claiming it as a fundamental right.

India's position and practice

India runs the world's largest elections. Voter lists are revised regularly by the Election Commission, and every citizen can apply to be added, or object to wrong entries. In Lakshmi Charan Sen v. A.K.M. Hassan Uzzaman (1985), the Supreme Court noted that political parties can help make sure eligible voters are included and ineligible ones removed. Courts generally set aside an election only if errors "materially affected" the result. Small or isolated mistakes are usually not enough.

Commonly confused concepts

• Right to vote vs freedom of voting: The right to vote (to be on the roll and cast a vote) is statutory. The freedom of voting, meaning the choice a voter expresses, has been linked to Article 19(1)(a) in PUCL (2003).
• Right to vote vs right to contest: Both are treated as statutory in India. Standing for election needs extra qualifications (for example, 25 years for the Lok Sabha under Article 84), set by the Constitution and the RPA 1951.
• Article 325 vs Article 326: Article 325 bans exclusion from the roll on grounds of religion, race, caste or sex. Article 326 lays down adult suffrage and the 18-year age limit.
• RPA 1950 vs RPA 1951: The 1950 Act deals with the voter list and seat allocation. The 1951 Act deals with conduct of elections, qualifications, offences and disputes.
• Statutory vs constitutional vs fundamental right: See the "floors of a building" comparison above. The right to property (Article 300A) is an example of a constitutional right that is not fundamental.

Issues, criticism and the way forward

• The case for a fundamental right: Supporters say voting is the base of every other right in a democracy. If the body that runs elections is itself divided or makes errors, the citizen's only protection today is an ordinary law and the Commission's internal process. A fundamental right would give citizens direct access to the Supreme Court and would make courts test any removal from the roll very strictly.
• Technology and the voter: Voter lists are now handled through central software. Critics point out that wrong deletions can happen at large scale if local officers cannot correct them. They argue this blurs the old line between "isolated error" and "systemic failure" that courts have used.
• The case for the present system: Others say the vote is already well protected. Article 326 limits the grounds for disqualification, free and fair elections are part of the basic structure, and courts have repeatedly struck down unfair steps. Making it a fundamental right could invite too many direct petitions and slow down election work.
• Specific debates: The ban on voting by prisoners, including undertrials (people not yet convicted), and the lack of a practical system for domestic migrant workers to vote from where they work, are long-standing concerns.
• Way forward suggested by experts: A larger bench of the Supreme Court could revisit Kuldip Nayar, drawing on Justice Rastogi's opinion. Other suggestions include clear written procedures and time limits for correcting wrong deletions, notices to voters before deletion, and public audit of voter-roll software.

Concepts to Know

• Universal adult suffrage: A system in which every adult citizen gets one vote, with no conditions of property, education, gender or caste.
• Electoral roll: The official list of voters for a constituency. Only people on this list can vote.
• Electoral Registration Officer (ERO): The official who prepares and corrects the voter list for an Assembly constituency.
• Basic structure doctrine: A rule made by the Supreme Court in 1973 that Parliament can amend the Constitution but cannot destroy its core features, such as democracy.
• Constitution Bench: A bench of at least five Supreme Court judges that decides important questions about the meaning of the Constitution. Its ruling binds smaller benches.
• Preventive detention: Keeping a person in custody to stop them from committing a possible crime in the future, without a trial for a past crime.
• Election petition: A special case filed in the High Court to challenge the result of an election.
• Special Intensive Revision (SIR): A fresh, door-to-door rebuilding of the voter list, in which voters may be asked to show documents again. It goes deeper than the usual yearly update of the list.