Should voting be compulsory in India?

Compulsory Voting Bill : Advantages and Pitfalls

By Deepak Parvatiyar

The Gujarat Governor O.P.Kohli’s assent to a controversial bill that was passed twice by the state assembly but was languishing for five years has sparked furious debate over the citizen’s right to vote across the country.

The bill in question – The Gujarat Local Authorities Laws (Amendment) Bil – 2009 – provides voting to be compulsory in local body elections. The same bill stipulates 50 per cent reservation for women in all local body elections.

The legislation empowers the state government to take punitive action against the non-voters in local body elections. However,  it was twice returned by Kohli’s immediate predecessor, Dr. Kamla Beniwal, on grounds that the Bill violated the “freedom which a citizen is entitled to enjoy under Article 21 of the Constitution”. She had then advised the Government against entering into “a controversy to compel voters to act against their conscience by means of coercion”. She had also advised the government to segregate the women’s reservation bill.

It may be mentioned that the Bill was mooted by the then Gujarat government under  Chief Minister Narendra Modi, who is now the prime minister of the country.

Modi’s argument was that the bill would ensure people’s participation in the democratic process and therefore, strengthen democracy. He, as the then CM, had sought to justify the Bill on grounds that it would not just bring the ‘neutral’ voter to the polling booth, but also bring down the cost of elections, and curb the role of black money in elections as well.

To an extent Modi is right given the fact that on an average around forty percent voters don’t turn up for voting in a general election and  about 30-35 per cent voters don’t vote in state elections. This means that even around 20 per cent votes is sufficient for a political party to annexe power. 

Obviously this is a slur on representative democracy and Indian voters do need to be more involved in the electoral process.

Yet, what has sparked a larger debate on the issue is whether  ‘bringing the neutral voter to the polling station’  is tantamount to coercive tactic and an attack on the fundamental right of freedom to expression, or not?

Modi had sought refuge in the provision of NOTA (None of the above) that offers the option of rejecting the candidates. However, the legislation does kill the option of boycotting the polling process as a form of protest. Isn’t this a form of expression? Isn’t protest an essential feature of a vibrant democracy?  Or in other words, isn’t democracy all about choices?

Beniwal’s reference to Article 21 too needs a close scrutiny in this regard. The said Article provides ‘Protection of Life and Personal Liberty’ and says that ‘no person shall be deprived of his life or personal liberty except according to procedure established by law’.

The interpretation of the Article covers a larger ambit and Constitutional experts have interpreted the expression ‘procedure established by law’ as a procedure which is reasonable, fair and just. 

Given the provision, the question being raked up now is whether it is just to punish a citizen even when he has not caused any harm to anybody’s right by not voting?

It may be mentioned that the Gujarat legislation does not fall under the ambit of the Election Commission of India and pertains only to local body elections in Gujarat. Yet, the possibility of Prime Minister Modi, who is a strong votary of compulsory voting, moving a similar bill in Parliament cannot be discounted.

In the past Modi had buttressed his argument in favour of compulsory voting by referring to certain “developed countries” that had implemented the same. It may be mentioned that as of August 2013, 11 countries enforced compulsory voting. One such country where voting is mandatory is Australia which is one of the few advanced democracies and the only English speaking country to have introduced compulsory voting. Yet, studies have shown that to avoid penal action in case of not voting, many citizens (almost 10 per cent of the voting population) did not get themselves registered as voters even.

Some of the most advanced democracies such as the USA, UK, France and Germany have a system of voluntary voting. Some countries such as the Netherlands and Austria repealed such provisions of compulsory voting after decades of practising it.

In the Indian context, the voting system is non discriminatory and voluntary as provided by the Constitution and the Representation of People’s Act, 1951.While  Article 326 of  Constitution guarantees the right to vote to every citizen above the age of 18, the 1951 Act stipulates at all those included in the electoral roll will be entitled to vote provided they don’t attract any disqualification. 

Yet, the debate on compulsory voting was prevalent even during the making of the Constitution and a Constituent Assembly member, M. Ananthasayanam Ayyangar, had even proposed such a provision during a debate on voting rights for illiterate people on January 4, 1949. 

The issue was further taken up during the discussion on the People’s Representation Bill in Parliament, in 1951 but was rejected by the then law minister Dr. B.R. Ambedkar as he did not find it to be a practical solution to low voter turnouts.

Yet, the debate has continued and the issue was raised again in 1990 at the Dinesh Goswami Committee on electoral reforms but again rejected on the similar ground of practical difficulties in implementing such a provision. In 2004 and then again in 2009, two members of parliament introduced bills related to compulsory voting as private member bill but on both occasions they did not get the support of the House.

There are indeed many practical difficulties involved in the implementation of compulsory voting.

While it entails heavy burden on the exchequer because of its massive requirement of   processes and manpower on one hand, the cost to implement it is just one factor.

A rather important factor that comes in the way of implementation of compulsory voting is that the Constitution envisages voting as a Right and not as a Duty. Being a Right, it is a privilege that an citizen enjoys and it is  up to him on whether to exercise such a privilege or not.

Time and again various committees appointed by the government has recommended voting to be made a Fundamental Duty. A report submitted in 1999 by the Justice J.S. Verma  committee, as well as the National Commission to review the working of the Constitution of India  had advocated inclusion of Duty to vote at elections in Article 51 A of the Constitution that deals with Fundamental Duties.

However, the dissenters of the provision argue while even the parliamentarians are allowed to abstain from voting inside the House, it would be pertinent to first make it compulsory for the MPs to vote.

Besides, given the fact that considering even if 10 per cent of the 83 crore plus eligible voters – and that would be a sizeable number -- fail to vote, will they all be brandished as law breakers? How can one impose fines on these 8 crore people?

Even the above mentioned Gujarat legislation too is yet to decide on the punitive measures to be taken in case of violation of the law and it would be interesting what model it follows – Australia imposes a fine. Singapore strikes off the name of the offender from the voting list. Brazil impounds the passport…and so on.

It is not going to be easy to implement any of such measures in Indian context as it puts heavy burden on the government exchequer.

Consider that there are 18 countries do not enforce compulsory voting despite having the provision on the law books!

Obviously Ambedkar had well thought of such complexities when he talked of the practical problems of compulsory voting.

So shouldn’t voting be left to a citizen’s choice?

Even Election Commissioner VS Sampath has been quoted as saying that the “decision to vote or not to vote is an individual decision”.

Yet, the question is rather tricky. Consider that the same view was taken by the Supreme Court in April 2009 when it had dismissed a petition to make voting and instead pointed out that many parts of the country did record high turnouts.

However, in August this year, the Supreme Court issued notices to the Centre and the Election Commission on a public interest litigation seeking compulsory voting on the basis of the JS Verma Committee recommendation that voting be made a fundamental duty by amending Article 51 of the Constitution.