The Gujarat government’s new law making >voting compulsory in local body elections will surely attract judicial attention, as it expressly raises the constitutional question whether citizens, qualified to be electors, can be compelled to vote when they do not wish to. The idea of making voting compulsory in response to declining voter turnout in successive elections has been debated for many years, but so far this country has not been able to make up its mind on such a far-reaching measure. The principal objection has always been that voting in a particular way, or even refraining from voting, is a matter concerning the freedom of expression. Even though the right to cast one’s vote is only a statutory right, the Supreme Court has recognised that the act of choosing one candidate over another falls under the freedom of expression guaranteed in Article 19(1)(a) of the Constitution. It is as a complementary or auxiliary right flowing from this fundamental right that it held that voters had a right to know the background of candidates so that they can exercise their right in an informed manner. Therefore, there is little doubt that the Gujarat Local Authorities Laws (Amendment) Bill, 2009 will impact on this fundamental right. Former Governor Kamla Beniwal had declined to give her assent and returned the 2009 Bill to the Gujarat government for reconsideration in 2010 on the same grounds, observing that “forcing voters to vote is against the principles of individual liberty”.
The Gujarat Assembly adopted it again in March 2011. Once again, Ms. Beniwal did not give her assent. It has now received the assent of Governor O.P. Kohli. According to the statement of objects and reasons, “… due to low turnout of voters to discharge their duty by exercising their right to vote, the true spirit of the will of the people is not reflected in the electoral mandate.” It says that if a voter failed to vote for reasons other than those permitted in the rules, he may be declared a “defaulter voter”. However, the penalty has not been spelt out and it may find a place only in rules to be framed in future. The ruling Bharatiya Janata Party considers it a revolutionary measure, while the Congress has opposed it. The amendment includes a provision to fix the reservation for women in local bodies at 50 per cent, a provision that nobody objects to. While Gujarat has the right to adopt laws in tune with the aspirations of its own people, legislation such as this with far-reaching consequences is best adopted after evolving a wider consensus. As far as general voting principles go, it is relevant to see what Section 79(d) of the Representation of the People Act says: that “electoral right” includes the right “to vote or refrain from voting at an election”.
