The Constitutional Loophole Behind Bengal's "Excluded" Voters

Why "Excluded" Voters Have No Fundamental Right to Fall Back On

The single fact that explains why Amina Paswan, Manjura Begum and thousands of others can be struck off West Bengal's voter rolls without written reasons, without hearing notices and without acknowledgment of their appeals is this: the right to vote in India is not a fundamental right.

It is a statutory right, created and defined entirely by the Representation of the People Act, 1950 and 1951, a position the Supreme Court settled as early as N.P. Ponnuswami vs Returning Officer (1952) and has reaffirmed since.

That single classification is doing more work in this crisis than any single ECI decision. Because voting is statutory rather than fundamental, a person removed from the rolls cannot walk into a High Court and claim their Article 19 or Article 21 rights have been violated by the deletion itself - they must first exhaust the statutory remedy the Act provides: appeal to the designated tribunal and only then approach the courts on procedural grounds.

This is precisely the route Sabia Khatun's and Manjura Begum's families are now taking through the Calcutta High Court and precisely why Justice Krishna Rao's August 4 order addressed only whether the tribunal followed proper process, not whether the underlying deletion itself infringed a constitutional right.

The tribunals' own conduct - no written reasons for rejection, no acknowledgment receipts for offline appeals, inconsistent application of the "2002 voters' list" standard even within single families - would be far easier to challenge if voting carried the same constitutional weight as, say, free speech.

It does not and that gap is what allows the ECI to stay "tightlipped," in the Supreme Court's own framing, without immediately triggering the kind of judicial intervention a fundamental-rights violation would. Where Article 21 does re-enter is indirectly, through West Bengal's own political choice: Chief Minister Suvendu Adhikari's decision to link SIR-excluded status to continued access to ration cards and welfare schemes converts a voter-roll technicality into a livelihood question and the right to life under Article 21 has been read expansively enough by the Supreme Court to potentially reach denial of subsistence benefits.

That is the thread the affected families' lawyers are more likely to be able to pull - not the deletion itself, but its downstream welfare consequences. This is also why the same SIR process reads as unambiguous triumph in Bihar and unresolved crisis in Bengal.

In Bihar, the CEC's claim rests on an aggregate outcome - 70 lakh names removed, turnout up to a record 67.25% - that says nothing about whether individual removals were procedurally sound. In Bengal, the ground-level accounts of undocumented rejections and unacknowledged appeals raise exactly the procedural question the aggregate Bihar numbers never had to answer.

Both are describing the same statutory process; only one has been tested against the human cost of getting an individual case wrong.