By Ashit Kumar Srivastava and Viraj Lahane
The principle of universal adult franchise states that all citizens above a fixed age have the right to vote. No one can be denied this right based on caste, creed, race, economic status, religion or gender. Adult suffrage/franchise is also defined under Article 326 of the Constitution. But a recent case from Gujarat where over 1,000 corporate houses signed agreements with the Election Commission (EC) to monitor the “electoral participation of their workforce” has raised a serious question—can anyone be made to exercise the constitutionally protected right to vote by force?
On October 19, 2022, Gujarat Chief Electoral Officer P Bharathi reportedly said: “We have signed 233 MoUs (Memorandum of Understanding) that will help us enforce the guidelines of the Election Commission. For the first time in Gujarat, we will be monitoring the electoral participation of the workforce belonging to 1,017 industrial units.” In addition, the names of those who don’t vote will be published on the websites or office notice boards of these corporates.
While the CEC said it cannot enforce compulsory voting, it wanted to identify workers in big industries who don’t vote despite availing the holiday as promised to them under Section 135B of the Representation of the People Act, 1951. Asked if this was a step towards compulsory voting, he reportedly said: “As there is no compulsory voting, this is an attempt to identify those who do not vote.”
But this clearly appears to be an effort to impose “compulsory voting” as the pinpointing and publication of the names of employees who do not vote can lead to a fear of retaliation from the government and even society as not casting a vote is seen as a social stigma.
Even if not said explicitly, this is an attempt by the EC to coerce the populace into casting the ballot. But legally can anyone be forced to vote?
This is not the first time such an initiative was taken in Gujarat. In 2015, the state announced that voting in elections for local self-governing bodies would be compulsory. This made voting in elections for municipal corporations, municipalities and village panchayats mandatory. The Act also contained provisions for punishing persons who do not cast the ballot.
However, this move was challenged in Khemchand Rajaram Koshti vs State Of Gujarat, 2015 in the High Court of Gujarat which stayed the implementation of this order. Acting Chief Justice Jayant Patel and Justice JB Pardiwala while passing their judgment stated: “Right to vote is a statutory right conferred upon any voter. By virtue of statutory provisions, it entitles voters to cast the vote. The moment such provision is accepted as that of entitlement to cast the vote, compulsion or obligation created to cast the vote would negate the entitlement on the right of any voter. Once the name of any person is included in the voter’s list, entitlement on right to cast the vote would accrue but thereafter obligation or compulsion cannot be read or provided upon the voter to cast the vote.”
In the present case, the EC’s move, on the face of it, is not in violation of Section 79(d) of the Representation of the People Act, 1951, because it does not restrict the rights of the citizen to refrain from voting. Instead, it creates a situation of fear.
In Khemchand Rajaram Koshti vs the State Of Gujarat, it was stated: “In order to protect the right in terms of Section 79(d) and Rule 49-O, viz., ‘right not to vote’, we are of the view that this Court is competent/well within its power to issue directions that secrecy of a voter who decides not to cast his vote has to be protected in the same manner as the Statute has protected the right of a voter who decides to cast his vote in favour of a candidate.”
It is crucial to note that the court emphasises the confidentiality of the voter who chooses not to vote and believes that his rights should be protected. But in the current case, the MoUs signed between the corporate houses and the GEC specifically contain the provision of publishing the names of those who don’t vote, which is contrary to the ruling made by the Gujarat High Court in Khemchand Rajaram Koshti. It creates a situation where not only the secrecy of residents who choose not to vote is violated, but forces voters to vote under duress.
In 2015, in a petition submitted to the Supreme Court, Satyaprakash argued that every person who is able to vote should be required to do so. He gave the examples of Argentina, Brazil and Belgium, where all citizens are required to vote. Additionally, he used Gujarat as an example and claimed that the state requires all of its citizens to vote in every election. The Supreme Court had requested that the centre submit a response in the light of these considerations.
In a response submitted in 2015, the law ministry said: “The introduction of a system of mandatory voting would lead to the emergence of an anti-democratic environment in the nation. The Supreme Court had already acknowledged the right to vote. The Union argued that in addition to the right to vote, there is also a right not to vote.”
The idea of compulsory voting also surfaced in 2004 and 2009. Bachi Singh Rawat, a Lok Sabha MP, introduced the Compulsory Voting Bill, 2004, as a Private Member’s Bill. The proposed law would have made voting mandatory for all eligible voters and only allowed for exemptions in specific circumstances such as illness or other extenuating circumstances. The House did not pass the Bill.
In 2009, JP Agarwal, an MP, submitted a Private Member’s Bill about compulsory voting. Veerappa Moily, the law minister, contended that if mandatory voting was implemented, Parliament would more truly reflect the wishes of the electorate. He did, however, add that participation in a democratic system must be voluntary.
In fact, in the 2013 NOTA judgment [PUCL vs Union of India and another (2013) 10 SCC 1)] under Paragraph 39, the Supreme Court emphasised how “a right not to vote” is part of an expression of a voter in a democratic country. The statement was made in reference to “revealing of identity of individual who have opted not to cast vote in favour of any candidate in electoral process”. The Supreme Court also highlighted that it will not be an idealistic situation to abstain from voting for a conscientious and responsible citizen.
However, voting is a matter of individual choice and fundamentally related to the larger question of expression. The current situation in Gujarat does not directly enforce “compulsory voting” per se, but the GEC’s action interferes with voters’ rights to refuse to cast the ballot.
Under Section 79(d) of the Representation of the People Act, 1951, “electoral right” means the right of a person to stand or not to stand as, or [to withdraw or not to withdraw] from being a candidate, or to vote or refrain from voting at an election. From this, it is clear that no one can be forced to cast his vote. Also, the scope of this Section is broader and incorporates not only direct interference, but any indirect interference which seems “forceful” or “compulsory voting” as in this case.
In her article, “Is There a Right Not to Vote?”, author Heather Lardy has given an apt interpretation of the right to not vote. She says: “It is possible that the right not to vote might be a claim to a liberty which forms part of an established political right other than voting. So, just as the right to speak freely in support of particular political policies at election time is protected by freedom of speech, perhaps the right not to vote forms part of freedom of thought or of conscience. Those freedoms might be argued to protect the liberty of a voter to abstain, either on grounds of principle or for mundane reasons. Additionally, it might conceivably be argued that the right not to vote is a part of freedom of expression, as non-voting is an expressive act, communicating the non-voter’s disenchantment with, or alienation from, the electoral process.”
Therefore, the decision of the GEC violates Section 79(d) of the Representation of the People Act, 1951, because it is creating a situation of compulsory voting, which, while not directly applicable, will nonetheless take effect if such MOUs are put into practice. In addition to breaching Section 79(d), this action violates citizens’ freedom of thought and conscience which safeguards their right to refrain from voting. Thus, it is not legal to force someone to vote.
Former CEC SY Quraishi reportedly said that instead of emphasising on the compulsion, there should be systematic education of the voters for voter participation. Quraishi also highlighted the fact that the EC has been running a programme of SVEEP (systematic voter education for electoral participation) since 2010 for achieving the goal. He said that in his personal capacity, he had contacted CEC Rajiv Kumar regarding the issue where it came to light that the MoUs were merely for the purpose of education and facilitation of the voters and not compulsion. The former CEC suggested to come up with clarification about the same to put this issue to an end at its beginning stage.
Whatever be the reality, attempts to force people to vote are against democratic norms.
—Ashit Kumar Srivastava is Assistant Professor of Law, Dharmashastra National Law University, Jabalpur, while Viraj
Lahane is a 2nd year law student