COMPULSORY VOTING

COMPULSORY VOTING

·         The idea of making voting compulsory in response to declining voter turnout in elections have been debated for many years.

·         Provisions regarding voting have been enshrined in the RP Act and the Indian Constitution, and describe the exercise as a ‘right’, instead of a ‘duty’.

·         Thus, s. 62 of the RP Act expressly talks about the “right to vote” and s.79(d) clarifies that the “electoral right” of the voter includes the right to “vote or refrain from voting at an election.

·         The characterisation of the decision to vote as a right, instead of a duty, has received judicial support.

·          For instance, in PUCL v Union of India, the Supreme Court expressly clarified that the right to vote is a “pure and simple statutory right.

·         It is thus clear that the decision to vote is considered an exercise of such a right, and is not a duty prescribed under Part IVA of the Constitution on Fundamental Duties. However, compulsory voting refers to the practice of making voting a duty – by requiring citizens of a country to partake in the electoral process, whether by obliging them to vote or mark their attendance at the polling place.

·          It has been introduced in some parts of world, both in well established and newly emerging democracies, with a bid to increase participation in the democratic process.

History and Context

·         Compulsory voting was first considered by the Parliament in 1950 during the enactment of the RP Act. Nevertheless, citing practical difficulties in implementation, it was rejected (led by members such as Dr.B.R. Ambedkar)

·         Then the Dinesh Goswami Committee in 1990 considered the question of making “voting compulsory” to increase voter turnouts .however the Committee rejected the idea based on “the practical difficulties involved in its implementation.

·         Subsequently, in 2001, the Consultation Paper of the NCRWC on Electoral Reforms again considered, and rejected the proposal for compulsory voting.

·         Pursuant to this, the issue of compulsory voting was discussed in Parliament in 2004 and 2009, when two Private Members Bill introduced a bill to that effect. In 2004, Mr. B.S. Rawat introduced the Compulsory Voting Bill, 2004 “to provide for compulsory voting by the electorate in the country and for matters connected therewith, be taken into consideration.

·         The Bill was defeated by citing various arguments, inter alia, the coercive nature of the provision; respecting the active decision of some voters to not engage with the democratic process; the inability to reach the polling booths; personal circumstances; and the difficulty of implementation.

·         Finally, Mr. Atul Saronde petitioned the Supreme Court vide a PIL, urging it make voting compulsory to counter low voter turnouts and to ensure the ‘representativeness’ of the elected governments

·         Dismissing the petition in April, 2009, the two-judge bench of Chief Justice Balakrishnan and Justice Sathasivam said, “We are not agreeable to your suggestion that electricity and water connection should be cut if anyone does not vote. These are inhuman methods to make a voter go to the polling booth

·         the Gujarat Local Authorities Laws (Amendment) Bill, 2009 was introduced and (now) passed introducing compulsory voting at local-level elections such as at the Municipality, Municipal Corporation, and Panchayat level.

·         a private member’s bill on Compulsory Voting moved by Janardan Singh in the year 2015.

Evaluating the Arguments For and Against Compulsory Voting

1 . Participation: Does compulsory voting increase voter turnouts and improve the quality of political engagement?

·         These involved the effect of compulsory voting in countering voter apathy by increasing turnout and in making the electorate more politically aware and engaged.

·         Increase in voter turnouts

·         A comprehensive cross-country Institute for Democracy and Electoral Assistance (hereinafter “IDEA”) Study reveals that the difference in voter turnouts between the 28 countries with compulsory voting provisions on their statute books (regardless of enforcement levels) and the 171 countries without such provisions is 7.37%.

·         Nevertheless, an increase in participation is a direct corollary of the severity and strict enforcement of sanctions. Studies have found that levels of abstention in compulsory voting regimes are highest when the quantum/type of penalty and the likelihood of its enforcement are high.There are two major impediments arising from this penalty-enforcement conundrum in the replication of such high levels of turnout in India – the imposition of a heavy penalty, and being likely to enforce it.

·         The first is concerned with the determining the type of penalty.

·         The current law is silent on the form of sanction, and clearly leaves such determination to the government.

·         Consequently, it is unclear whether the penalty will amount to unnecessary coercion (as the “inhumane” suggestion before the Supreme Court in 2009 to cut off electricity and water supplies) or merely an informal sanction.

·         Examples of the former are found in Peru, where defaulters cannot access certain government goods and services; Bolivia, where they are not entitled to receive their salaries for three months; and Belgium, where non-voters find it difficult to get a job in the public sector

 the penalties include being disenfranchised; along with the possible denial of BPL cards, driving licenses, passports, and other services.

Adverse affect

·         Such measures are extreme and will disproportionately and adversely affect the poor or marginalised in India.

·         The solution to non-voting as McMillan points out “cannot be to remove people from the electoral process.”

·         In fact, an unintended consequence of such a measure is the disincentive on “qualified voters” (which is yet undefined) from registering themselves on the voter registration lists.

·         Moreover, instead of specifying the penalty in the law, the criminalisation of non-voting has been left to delegated legislation.This vests great powers with the State, which can use it as a potential tool for harassment.

·         Conversely, if the penalty amounts to informal sanction – a mere slap on the wrist – then it will not act as a deterrent or have the desired effect.

The second concern deals with the difficulty in implementation

Implementation (at a subsequent national level) involves the Election Commission making the more than 800 million eligible voters aware of the new law making voting compulsory.

The Commission has to then expend time and resources in sending notices to each of the non-voters, conduct hearings, and subsequently impose and implement the stipulated penalties.

Former Chief Election Commissioner S.Y. Qureshi, terming the implementation “practically impossible”, cautioned against adding to the caseload of the already overburdened judicial system.

There are additional concerns regarding the registration process and faulty electoral rolls – voters lists often have defects and have names missing

                                                                                                                                               

Improvement in the quality of political participation and debate

·         Interestingly, although the Australian example is widely cited as a successful model of compulsory voting, it has witnessed a high level (to the tune of 1-3%) of “donkey voting”, which occurs when apathetic voters simply choose the first name on a ballot.

·         there is no evidence that individuals will seek out more information in a bid to fulfil their voting obligations; and compulsory voting will not necessarily improve the quality of civic engagement.

Equality: Does compulsory voting ensure the enfranchisement of the weaker classes?       

The participation argument for compulsory voting has an associated equality dimension to it. The argument proceeds on the assumption that voter apathy is more prevalent amongst the weaker, marginalised socio-economic class and thus compulsory voting will ensure that their voices get heard.

 However, such arguments are not applicable in India, where it is the rich, who often do not exercise their voting rights, and whose turnout is often lower than the poor.

Democracy: Does compulsory voting increase the ‘representativeness’ of the government or is it constitutionally untenable?

While democratic representativeness is a laudable goal, compulsory voting is not the appropriate means of achieving it. Very simply, the government cannot “force-feed” democracy by compelling people to vote, because doing so violates the cornerstone of democracy and our Constitution, which is freedom and individual choice.     

First, Article 326 of the Constitution makes it very clear that every citizen “shall be entitled to be registered as a voter at any such election”, thereby providing citizens with an option of not registering themselves as voters.

The Supreme Court also talks about the “right” to vote, noting that, “the right to vote for the candidate of one's choice is of the essence of democratic polity.”

Secondly, as the absence of the right to vote in the Fundamental Duties prescribed in Part IVA make clear, the Constitution does cast any “duty” on citizens.

Thirdly, compulsory voting violates the freedom of expression guaranteed under Article 19(1) of the Constitution

The Supreme Court has repeatedly recognised that there is a “fine distinction… between the right to vote and the freedom of voting as a species of freedom of expression.” 412 Whereas the right to vote is a statutory right conferred only on the fulfilment of certain criteria, the actual act of voting (“freedom of voting”) is a manifestation of the freedom of expression.

Most recently, Fiji abandoned compulsory voting in 2014, Chile in 2012, and Austria (the last remaining Tyrol district) abolished it in 2004. Others such as Egypt, Greece, Mexico, Paraguay, and Thailand have stopped enforcing it.

e, the fact that both Italy (1993) and the Netherlands (1967) have abolished compulsory voting; and others such as Liechtenstein and Greece have moved from a strict to a not-strict or nonenforcement of compulsory voting laws

the Law Commission does not recommend the introduction of compulsory voting in India and in fact, believes it to be highly undesirable for a variety of reasons described above such as being undemocratic, illegitimate, expensive, unable to improve quality political participation and awareness, and difficult to implement.