Sunday, May 3, 2009

Editorial: "Make It Fundamental" of 15 April 2009 issue of LAW ANIMATED WORLD


May be startling but it is true that, albeit a constitutional provision that elections to parliament and assemblies are to be on the basis of adult suffrage, the right of universal and equal adult franchise through secret ballot is not a fundamental right in our constitution – this despite the clear assertion in Article 21 (3) of the Universal Declaration of Human Rights 1948 that “The will of the people … shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedure” and the initial discussions, though scanty, in our Constituent Assembly to make it a fundamental right. Also no amendments to that extent were tried even later though the International Covenant on Civil and Political Rights 1966 [ratified by India in 1979] also declared that “[25(2). Every citizen shall have the right and the opportunity …] to vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guranteeing the freedom of expression and will of the electors.” We find many drawbacks in our election system stifling the people’s free choice to elect and get elected. An arbitrarily appointed Election Commission is vested with wide discretionary (say near-arbitrary) powers and the courts are prohibited to intervene whatever the blunders committed by it until after the elections. Several thousand persons, with voter identity cards even, do not find place in the electoral rolls, but no remedy is available to them as superior courts refuse to intervene except in case of ‘by way of election petition after elections’; also genuine electors barred to contest election due to capricious rejection of nomination forms on hyper-technical grounds have nowhere to go for immediate relief. But if the right to vote be made fundamental, the superior courts would be in duty bound to conduct judicial review and reach requisite immediate justice. Hence we want such right to be made a fundamental one and we have no doubt that this demand will get widespread support. §§§

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