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.”