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Report No. 255

(iii) Democracy: Does compulsory voting increase the 'representativeness' of the government or is it constitutionally untenable?

9.14.1. The democratic argument is premised on a substantive notion of democracy where the elected government is truly representative of (all) the people, and not just a "self-selecting few". Thus compulsory voting is seen as increasing the "democratic degree" of elected assemblies.407

407. Jason Briggs and Karen Celis, For and Against: Compulsory voting in Belgium and Britain, 4(1) Social And Public Policy Rev. 1, 5 (2010)

9.14.2. While democratic representativeness is a laudable goal, compulsory voting is not the appropriate means of achieving it. Very simply, the government cannot "force-feed" democracy408 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.

This is buttressed by sections 62 and 79(d) of the RP Act that expressly talk about the "electoral right" of a person as including the right to "vote or refrain from voting at an election". The Supreme Court also talks about the "right" to vote, in Lily Thomas v. Speaker, Lok Sabha, (1993) 4 SCC 234, the Supreme Court defined voting as "formal expression of will or opinion by the person entitled to exercise the right on the subject or issue" [Emphasis supplied] noting that, "the right to vote for the candidate of one's choice is of the essence of democratic polity." PUCL v. Union of India, (2003) 4 SCC 399

408. Mcmillan, supra note 390

9.14.3. 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. This is especially important given the government's failure to act on the recommendations of Justice Verma's Committee Report of 1998 and the NCRWC's Report on Fundamental Rights, Directive Principles, and Fundamental Duties to amend Part IVA, Article 51-A to include "duty to vote at elections, actively participate in the democratic process of governance and to pay taxes."411 At most voting can be considered a civic duty of every citizen; but, to enforce it compulsorily is against the principles of an individual liberty.

411. Chapter 3, Fundamental Rights, Directive Principles, and Fundamental Duties, para 3.40.3 in Ministry of Law and Justice, Report of the National Commission to Review the working of the Constitution Report of the NCRWC,
<http://lawmin.nic.in/ncrwc/finalreport/v1ch3.htm>

9.14.4 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." Kuldip Nayar v. Union of India, (2006) 7 SCC 1; PUCL v. Union of India, (2003) 4 SCC 399; Union of India v. Association for Democratic Reforms, (2002) 5 SCC 294, where the Court said "a voter 'speaks out or expresses by casting vote.

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.413 Similarly, the Court in the NOTA judgment clarified that, "a positive 'right not to vote' is a part of expression of a voter in a parliamentary democracy and it has to be recognized and given effect to in the same manner as 'right to vote'".414

413. The Court in the 2003 PUCL judgment further states, "freedom of voting as distinct from right to vote is thus a species of freedom of expression.

414. PUCL 2013, at para 37

9.14.5. The Supreme Court and other government functionaries have recognised that voters' refrain from voting on account of various factors such as the poor quality of candidates in the fray;415 the opportunity cost of foregoing a daily wage, or the forced homelessness due to riots or natural disasters;416 the absence of an enabling environment due to problems with electoral identity cards, and the difficulty in reaching the polling stations.417

In such cases, "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)(a) of the Constitution."418 Thus, coercing citizens to be involved in the democratic process contravenes their freedom of expression, while also reeking of "illiberalism".419

415. PUCL 2013, at para 37 states, "A voter may refrain from voting at an election for several reasons including the reason that he does no consider any of the candidates in the field worthy of his vote

416. Qureshi, supra note 1; Qureshi, supra note 367

417. Why ex-Gujarat Guv Kamla Beniwal vehemently opposed compulsory voting?, BUSINESS STANDARD, 10th November 2014,
<http://www.business-standard.com/article/politics/why-exgujarat-guv-kamla-beniwal-vehemently-opposed-compulsory-voting-114111000972_1.html>

418. PUCL, 2013, at para 19

419. Sanjay Hedge, Gujarat's Compulsory voting Experiment Smacks of Illiberalism, ECONOMIC TIMES, 16th November 2014,
<http://articles.economictimes.indiatimes.com/2014-11-16/news/56137264_1_gujarat-local-authorities-laws-compulsory-voting-municipal-elections>

As Hegde notes, American philosopher Harold Stearns wrote,"The root of liberalism, in a word, is hatred of compulsion, for liberalism has the respect for the individual and his conscience and reason which the employment of coercion necessarily destroys." Harold Stearns, Liberalism In America: Its Origin, Its Temporary Collapse, Its Future (1919)

9.14.6. Finally, political science perspectives on the complexity of democracies argue that democracies need to accommodate dissent and diversity of views. This includes the option of disengagement, namely "rights to abstain, to withhold assent, to refrain from making a statement or from participating" if people believe "voting is mistaken, undesirable, unnecessary or immoral."420

420. Annabelle Lever, Compulsory Voting: A Critical Perspective, 40(4) BR. J. OF POL. SC. 897,924, 926 (2010)



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