Democratic elections are about ascertaining people’s choice of leaders. They are not about compelling attendance at the voting booth. An elector ought to be as free to abstain from voting as she is to vote. Abstention is an electoral choice like any other.
Another school of thought disagrees. It believes voting is a civic duty and that not exercising one’s franchise must carry more than just a censure. Compulsory voting must be exacted from every citizen as the necessary price of a representative democracy.
The ruling party in Gujarat, the Bharatiya Janata Party, has for long believed in the second school of thought. Since 2009, it has sought to compel voting in elections for municipalities and other bodies of local self-government. If you are registered to vote, the state demands compulsory attendance at the voting booth. The option of abstention does not exist because unexempted abstention will be punishable. After prolonged efforts, the ruling party has succeeded.
On November 7, Gujarat governor OP Kohli assented to the Gujarat Local Authorities Laws (Amendment) Bill, 2009. This bill was twice passed by the Gujarat legislative assembly during the tenure of then Chief Minister Narendra Modi. Kohli’s predecessor Kamla Beniwal returned the bill to the assembly for reconsideration, remarking that “forcing voter to vote is against the principles of an individual liberty”. When the legislature again passed the same bill without change, assent could not be refused, but the matter was kept pending. It eventually required a change of governors before assent was obtained.
Normal omission now criminalised
Nothing discredits an idea so quickly as making belief in it compulsory. Election days have been called India’s festivals of democracy. High turnouts, ranging from 45% to 65%, are common in most times of normalcy. Low turnouts in elections for local bodies and municipalities have not been an issue either. There has been no suggestion that current turnout rates in local bodies’ elections have in any way hampered their functioning or made them unrepresentative in character. The amendment introducing compulsory voting has in effect elevated to criminality an act of otherwise normal omission.
A person who finds no candidate worth voting for will now have to trudge to the voting booth to press the NOTA (none of the above) button under pain of otherwise being punished under the Act.
Studies the world over have shown that the poor and the disadvantaged suffer the greatest brunt of any law that provides for compulsory voting. The daily wage earner, the single mother, the aged, the infirm and several similar groups of voters find it difficult to make it to the polling booth on election day. In the absence of flexible voting schedules, enacting penal compulsion in the law will result in an unfairly high proportion of the disadvantaged being marked out for penalties. Such groups might soon find it easier to de-register themselves as voters and cease to have any stake in the political process.
Punishments not decided
What is intriguing is the legislature’s abdication of its essential legislative functions, in its failure to spell out the punishments for not voting. The Act permits the state government to fix punishments by framing appropriate rules. The rules are expected to provide for procedures and formats for submitting explanations for an inability to vote. These explanations will have to be considered before the imposition of a penalty or any other punishment.
While financial penalties being imposed by rules may pass judicial muster, it would be highly unlikely for any imprisonment prescribed by the rules alone to withstand judicial scrutiny. The Supreme Court has often held that essential legislative functions cannot be delegated. Penal provisions of imprisonment, if any, will have to be made in the parent Act and cannot be left to the executive’s discretion.
This amendment has also left election administrators flummoxed. Central Election Commissioner HS Bramha has rightly asked: “...what if we have a similar law at the Centre, and out of 83 crore-plus voters, 10%choose not to vote? Will you put eight crore voters in jail or impose fines on them? Do we have jails to accommodate eight crore voters?”
What Bramha has left unsaid is that the process of penalisation will have to be preceded by adjudication. Election offence tribunals may be overwhelmed by the sheer numbers of cases to be decided on – whether penalties are leviable and to what extent.
The Gujarat assembly has, on ideological grounds, attempted compulsion on the pain of criminalisation of that which is essentially a voluntary activity. As the 19th-century individualist Auberon Herbert pointed out: “How can an act done under compulsion have any moral element in it, seeing that what is moral is the free act of an intelligent being?” No freedom to make a choice is meaningful, if you do not have the freedom to abstain. The Gujarat assembly appears to have embarked on an undemocratic experiment in regimentation, which will sooner or later have to be abandoned or modified by the legislature itself or by the judiciary.
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Another school of thought disagrees. It believes voting is a civic duty and that not exercising one’s franchise must carry more than just a censure. Compulsory voting must be exacted from every citizen as the necessary price of a representative democracy.
The ruling party in Gujarat, the Bharatiya Janata Party, has for long believed in the second school of thought. Since 2009, it has sought to compel voting in elections for municipalities and other bodies of local self-government. If you are registered to vote, the state demands compulsory attendance at the voting booth. The option of abstention does not exist because unexempted abstention will be punishable. After prolonged efforts, the ruling party has succeeded.
On November 7, Gujarat governor OP Kohli assented to the Gujarat Local Authorities Laws (Amendment) Bill, 2009. This bill was twice passed by the Gujarat legislative assembly during the tenure of then Chief Minister Narendra Modi. Kohli’s predecessor Kamla Beniwal returned the bill to the assembly for reconsideration, remarking that “forcing voter to vote is against the principles of an individual liberty”. When the legislature again passed the same bill without change, assent could not be refused, but the matter was kept pending. It eventually required a change of governors before assent was obtained.
Normal omission now criminalised
Nothing discredits an idea so quickly as making belief in it compulsory. Election days have been called India’s festivals of democracy. High turnouts, ranging from 45% to 65%, are common in most times of normalcy. Low turnouts in elections for local bodies and municipalities have not been an issue either. There has been no suggestion that current turnout rates in local bodies’ elections have in any way hampered their functioning or made them unrepresentative in character. The amendment introducing compulsory voting has in effect elevated to criminality an act of otherwise normal omission.
A person who finds no candidate worth voting for will now have to trudge to the voting booth to press the NOTA (none of the above) button under pain of otherwise being punished under the Act.
Studies the world over have shown that the poor and the disadvantaged suffer the greatest brunt of any law that provides for compulsory voting. The daily wage earner, the single mother, the aged, the infirm and several similar groups of voters find it difficult to make it to the polling booth on election day. In the absence of flexible voting schedules, enacting penal compulsion in the law will result in an unfairly high proportion of the disadvantaged being marked out for penalties. Such groups might soon find it easier to de-register themselves as voters and cease to have any stake in the political process.
Punishments not decided
What is intriguing is the legislature’s abdication of its essential legislative functions, in its failure to spell out the punishments for not voting. The Act permits the state government to fix punishments by framing appropriate rules. The rules are expected to provide for procedures and formats for submitting explanations for an inability to vote. These explanations will have to be considered before the imposition of a penalty or any other punishment.
While financial penalties being imposed by rules may pass judicial muster, it would be highly unlikely for any imprisonment prescribed by the rules alone to withstand judicial scrutiny. The Supreme Court has often held that essential legislative functions cannot be delegated. Penal provisions of imprisonment, if any, will have to be made in the parent Act and cannot be left to the executive’s discretion.
This amendment has also left election administrators flummoxed. Central Election Commissioner HS Bramha has rightly asked: “...what if we have a similar law at the Centre, and out of 83 crore-plus voters, 10%choose not to vote? Will you put eight crore voters in jail or impose fines on them? Do we have jails to accommodate eight crore voters?”
What Bramha has left unsaid is that the process of penalisation will have to be preceded by adjudication. Election offence tribunals may be overwhelmed by the sheer numbers of cases to be decided on – whether penalties are leviable and to what extent.
The Gujarat assembly has, on ideological grounds, attempted compulsion on the pain of criminalisation of that which is essentially a voluntary activity. As the 19th-century individualist Auberon Herbert pointed out: “How can an act done under compulsion have any moral element in it, seeing that what is moral is the free act of an intelligent being?” No freedom to make a choice is meaningful, if you do not have the freedom to abstain. The Gujarat assembly appears to have embarked on an undemocratic experiment in regimentation, which will sooner or later have to be abandoned or modified by the legislature itself or by the judiciary.