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.
In seeking to counter such an explanation, Narendra Modi, who pioneered the Gujarat law, wrote in a blog post in 2013 that the legislation does not infract any preexisting rights of voters. “If compulsory schooling for children is advocated,” he said, “can you say that we are denying a child his or her childhood?” “When we do our duties properly,” Modi added, “the rights will be automatically safeguarded and if we do our duties properly, our democracy will be safeguarded.” Such an argument is however dangerously specious, and belittles the overriding value of individual liberty.
India’s constitution, read literally, no doubt does not guarantee to the country’s citizens a right to vote. The right is a mere grant of statute. But while this is certainly true in a technical sense, it can also be misleading. The right to vote might indeed be only a statutory grant, but, as the Supreme Court ruled in PUCL’s case, the “decision taken by a voter after verifying the credentials of the candidate either to vote or not is his right of expression under Article 19(1) of the Constitution.”
What the court was effectively telling us, in carving out this subtle distinction, is that the freedom to vote and to participate in the political process is integral to the guarantee of equal liberties. India’s constitution, the court found, allows its citizens the freedom to express themselves freely as citizens through the act of voting.
At the time when the Gujarat legislative assembly originally passed the bill, Modi, then chief minister of the state, declared that, in enacting the law, the state was setting a good precedent. Compulsory voting, Modi said, is an attempt to strengthen democracy, to bring voters, as opposed to political parties, to the forefront of the electoral system. Gujarat’s lead, he added, ought to be followed by other states, and voting ought to be made mandatory for both Lok Sabha and State Legislative Assembly polls. Given Modi’s position and power today, it is possible that this “Gujarat model”—to borrow a phrase that has taken on a painfully hackneyed turn—could portend a national movement towards similar laws for parliamentary and state assembly elections. Taken to such an extreme end, the present measure might prove not merely unconstitutional, but also decidedly totalitarian.
Compulsory voting, or compulsory polling as it were, is by no means an idea untested in modern-day democracies. According to a report by the Institute for Democracy and Electoral Assistance, as many as 38 countries enforce—or have enforced in the past—some form or the other of mandatory voting. In some countries such as Australia, where such a law has been in place since the 1920s, a failure to show up at the polling booth on election day could land a citizen with fines, which, if unpaid, might even result in imprisonment.
Yet, it is difficult to view the Gujarat government’s law as anything but a perilous response to a non-existent problem. First, in Western countries, unlike in India, compulsory voting is viewed, as it was by the political scientist Arend Lijphart as the only means to tackle a “socio-economically biased turnout.” But, in India, as Pratap Bhanu Mehta has observed, voting turnouts “amongst the poor has been no worse, and usually much higher, than amongst the privileged,” potentially transforming this new policy into one that is aimed at further empowering the already-privileged, particularly the burgeoning middle class. Second, many countries that enforce compulsory voting can hardly be described as great exemplars of democratic value. The list of countries that have adopted such a law includes Argentina, Fiji, Chile and the Democratic Republic of Congo. Third, and perhaps most importantly, enforcement of compulsory voting, as much as its proponents might like us to believe otherwise, does, in fact, infringe on our fundamental rights, as the Supreme Court’s verdict held in the PUCL’s case.
To exacerbate an already flagrant violation of individual liberties, the Gujarat law also fails to prescribe a penalty for those in breach of their obligation under the law. The legislation simply delegates to the executive the power to frame rules that will fix punishment for violations. There have been some suggestions that beyond imposing fines and imprisonment—which, as Election Commissioner HS Brahma has pointed out, might be difficult to enforce—errant citizens might be denied significant state benefits. A failure to vote could, for instance, quite possibly negate a citizen of his or her right to a passport, or a right to a ration card. Therefore, this delegation by the Gujarat Assembly of what are essential legislative functions only further exemplifies the law’s anti-democratic disposition.
The present government might need reminding that its legitimacy is ultimately dependent on its ability to guarantee to its citizens their fundamental rights. To expect citizens to secure their alleged rights by surrendering their freedom to supposedly exalted ideals is anathema to a democracy, properly understood. The US Supreme Court Justice Louis Brandies’s concurring opinion in Whitney v. California (1927)—where the petitioner was accused of transgressing the law in seeking to establish the Communist Labor Party of America, a group allegedly devoted to teaching the violent overthrow of government—ought to be just as applicable to the Indian context. “Those who won our independence,” wrote Brandies “believed that the final end of the State was to make men free to develop their faculties, and that, in its government, the deliberative forces should prevail over the arbitrary. They valued liberty both as an end, and as a means.”