On 5 November, the governor of Gujarat OP Kohli accorded his sanction to the Gujarat Local Authorities Law (Amendment) Bill 2009 that makes voting in local body elections in the state compulsory. Although, at first blush, the move appears to hold rare appeal—particularly to ideologues that view voting as a bounden duty of a citizen in a democratic polity—the law is plainly unconstitutional. The obligation imposed by the legislation, as a careful reading of the measure shows us, treads dangerously upon our most cherished, and constitutionally protected, liberties.
Ruling on a public interest litigation initiated by the People’s Union for Civil Liberties last year, the Supreme Court found that the constitution allows citizens the liberty to express themselves freely through the act of voting. This act would include the right to vote for any one of the contestants, the right to reject all contestants, and also the right to abstain from voting altogether. It was therefore that a direction was issued to the Election Commission to make a “NOTA”—“none of the above”—button available on every electronic voting machine.
The Supreme Court had correctly ruled in PUCL v. Union of India that abstaining from voting in an election is a form of expression, quite distinct from the right to participate in an election, and is therefore a liberty that is implicit in the right to freedom of expression. The act of non-participation, as the court found, is an expression, just as voting is, of a political opinion. No doubt, in certain circumstances, citizens might be under a moral obligation to participate in an election, but, as the political scientist Annabelle Lever has argued in a paper on compulsory voting, to allow that moral duty to permit coercive acts by the state aimed at compelling people to vote would amount to violating our individual liberties. The “rights to abstain, no less than rights of anonymous participation,” wrote Lever, “enable the weak, timid and unpopular to protest in ways that feel safe, and that require little coordination and few resources. These rights are necessary if politics is to protect people’s freedom and equality.”
Supporters of compulsory voting argue that the measure isn’t necessarily antithetical to liberal ideas. The directive does not violate, in their reasoning, any rights or freedoms, and even if indeed it violates any individual rights, its societal benefits—and its purported contribution to democracy as a value—substantially outweigh the infraction of such liberties. The Belgian Political Scientist Justine Lacroix, for example, says thatthe “obligation to vote—far from being detrimental to individual liberties—may be envisioned as the necessary condition for the full exercise of equal liberty.” In her belief, the Rawlsian argument that people owe a moral duty to support just institutions provides laws that enforce compulsory voting a legitimate supremacy over any ethical rights that we might enjoy as individuals.
It might of course be plausibly argued by supporters of compulsory voting—as Lever has pointed out—that given that NOTA is today mandated, those inclined not to vote, possibly as a form of dissent, will be free to choose NOTA as an option, and therefore their rights remain free of infractions. That is, what is in reality being enforced by the Gujarat law isn’t as much compulsory voting as compulsory participation. But such an argument ignores the rationale—which the lawyer Gautam Bhatia has explicated—behind the Supreme Court’s decision. Just as one’s right to freedom of religion also includes the freedom to practice no religion, the right to vote, as a form of ethical choice, includes the right not to vote.