by Neha Chauhan
The General elections of 2019 would be remembered for many things, one of them being that India recorded a voter turnout of 67 per cent, the highest ever in the history of the country's democracy. Voter turnout in India has remained perpetually low. Low voter turnout is often defended on the ground that it serves as a barometer reflecting voters' disaffection or discontentment with the level of prevalent politics. But what are often not accounted for by the apologists of low voter turnout are the consequences that would ensue if these low voter turnout trends continue unabated. One immediately discernible consequence is that the resultant elected government would not be truly representative of an electorate which it intends to govern. That's why in the run-up to the US presidential elections of 2016, candidate Bernie Sanders, in addition to issues such as immigration and national security, drew attention to the problem of low voter turnout in the country and wrote on his twitter page: “If we truly believe in a vibrant democracy, then we [the US] must have the highest voter turnout in the world.” A similar sentiment resonated with the former US President Barack Obama when he praised the transformative capacity of compulsory voting in raising voter turnout in Australia.1
Compulsory voting or legally requiring the enfranchised citizens to vote is often presented as the most effective solution to arrest the trend of low voter turnout. In this regard it becomes imperative to state at the very outset that in compulsory voting systems, compulsion is only to turn up at an election booth on a voting day and not to compulsorily cast vote in favour of a particular candidate. In fact in countries with compulsory voting, the voter can cast NOTA or turn in a blank ballot if the voter feels dissatisfied with the political contestants on the list. It is interesting to note here that the Australian Election Commission studies spoilt ballots for interpretation purposes.
It goes without saying that prima facie resistance to the idea of compulsory voting is inherent in the terminology itself. Because how can a law compelling the citizens to vote be democratic? But the practice is entrenched in the political systems of many democracies than is usually expected. Presently there are around 26 countries in the world which employ compulsory voting in some form and the provisions relating to the practice are either entrenched in the Constitutions or statutorily provided in electoral laws. For instance, Article 37 of the Constitution of Argentina states that suffrage shall be universal, equal, secret and compulsory. Also, Article 12 of the Código Nacional Electoral of Argentina states that voting is a duty and exempts persons over 70 years of age from such an obligation. The Constitution of Belgium in its Article 62 states that voting is obligatory and secret. On the other hand in countries such as Australia the provisions related to compulsory voting are not contained in the Constitution but are codified in legislations. In Australia the compulsory voting at federal elections was introduced in 1924 via the Commonwealth Electoral Act.
Compulsory Voting around the World
The idea of compulsory voting is not a recent one as the electors were put under a legal obligation to attend the polls in medieval Switzerland.2 The practice was employed in the elections in American colonies in early seven-teenth century although it fell into disuse later on. As far as the history of compulsory voting in Europe is concerned, it was demanded in France at the time of the French Revolution but eventually came to be applied only in indirect elections to the French Senate. In Belgium compulsory voting was introduced in 1893 and the practice continues till today. In the neighbouring Netherlands, voting was made mandatory in 1917 and was discontinued in 1970 in spite of the absence of any resistance among the public towards the practice. Thereafter compulsory voting was introduced in many European countries, in some it was abolished while the others still retain the practice to this date. African and Middle East regions (Egypt, Gabon, Republic of Congo, Lebanon et al.) have also witnessed sporadic introductions of the practice of compulsory voting. Latin America introduced the obligation to vote over a long period with Colombia, Nicaragua, Cuba and most recently Chile being the only countries which do not formally oblige their citizens to cast vote.
In addition to Belgium, Australia is considered to be the best implemented example of compulsory voting. In Australia, compulsory voting was introduced as an electoral reform at the provincial level in 1915 in Queensland and in 1924 it was extended to the federal level.
As far as Asia is concerned, Thailand introduced compulsory voting as an electoral reform in 1997 to curb the then rampant menace of vote-buying and the State of Gujarat in India introduced the legal obligation to vote in 2014; in the former case the practice was abolished and in the latter the practice remains unimplemented till today.
To Vote or Not to Vote
Although the debates surrounding compulsory voting date back to the time of the French Revolution, the contemporary academic interest in the practice can be attributed to the Belgian scholar, Arendt Lijphart, who in a 1997 paper argued in favour of compulsory voting as the most effective tool for boosting voter turnout and concluded that its advantages outweigh any normative or practical oppositions to the practice.3 The history of franchise can be characterised into a journey of perceiving voting as a function to voting as a right, the former concept denoting a duty and the latter accruing to a person by virtue of his citizenship. It is interesting to note here that in the debates which preceded the adoption of compulsory voting in the Belgian parliament, the view which held sway was that the right to vote is not exercised merely for oneself, rather the franchise is exercised in societal interest.4 Even John Stuart Mill in his monumental work, Considerations on Representative Government, stated that “those who say the suffrage is not a trust but a right, will scarcely accept the conclusions to which their doctrine leads. If it belongs to the voter for his own sake, on what ground can we blame him for using it to recommend himself. It is strictly a matter of duty and he is bound to give it according to his best and most conscientious opinion of the public good.”5 That's why the right-duty relational discourse is the pivot around which the normativity of compulsory voting revolves. In contemporary discussions on suffrage an understanding as to the compatibility of voting as a right with voting as a duty has arisen; however, the debate centers around whether such a duty should be turned into an obligation, more so into a legal obligation. The ubiquity of legal obligations being the hallmark of modern rule of law-based societies, the legal obligation to vote, it is often potently argued, is as warranted a duty as the duty (or a legal obligation) to pay tax, to undertake compulsory military service or serving jury duty.
Compulsory voting is often termed as illiberal and undemocratic. The opponents of compulsory voting assert that inherent in the right to vote is a right not to vote and the practice is violative of the latter right and also of the liberty of the citizen. However, advocates of the practice call it mere lexical ingenuity. Lisa Hill, one of the foremost theorists of compulsory voting, argues that mere lexical inversion of the right to vote doesn't yield in a corresponding unassailable negative right meaning thereby that the act of not voting doesn't mean that a certain right is being exercised. There have been numerous instances when courts have been moved for judicial recognition of the right not to vote but the courts have found the right to vote as preservative of all other rights and citizens' link to their governments and have been wary in declaring judicial support for the same. Liberty is broadly described as freedom from inter-ference as well as freedom from domination by the political theorists. Compulsory voting does violate liberty when it is understood as freedom from intervention but it does strengthen the latter aspect, that is, freedom from domination. Therefore if one aspect of liberty is strengthened, the entire practice can't be termed as illiberal. Even the European Court of Human Rights as far back as 1971 upheld compulsory voting. In the case of X v. Austria, the violation of Article 9 of the European Convention on Human Rights, which concerns freedom of thought, conscience and religion, was asserted by an Austrian citizen to challenge compulsory voting. He argued that the ballot paper listed only two candidates and he found neither of them suitable to be elected as a Federal President; therefore compelling him to vote would violate his freedom guaranteed by Article 9 of the Convention. The court rejected his case as “manifestly ill-founded” as there was no compulsion to mark the ballot in favour of a candidate as the citizen could have simply handed over the blank or spoilt ballot and therefore the court held that compulsory voting does not violate freedom as enshrined in Article 9 of the European Convention on Human Rights.
The debates around compulsory voting remain inconclusive but whichever side is endorsed, it must essentially be kept in mind that elections form the bedrock of democracy and low voter turnout dents the elections thereby adversely affecting the democratic process.
Compulsory Voting in India
Although India has never experienced com-pulsory voting, the concept has been sporadically referred to since the time of the Constituent Assembly debates. The idea of compulsory voting for India was mooted for the first time on January 4, 1949 by M. Anantha-sayanam Ayyangar during the Constituent Assembly debates wherein he proposed for the inclusion of a clause that made voting compulsory in the Constitution and also imposition of a penalty for those who abstained from voting. However, the proposal neither garnered support nor attracted explicit rejection and largely remained non-debated. Thereafter compulsory voting was sporadically referred to on various occasions, at the time of enactment of the Representation of People's Act 1950, in the Tarkunde Committee Report, Dinesh Goswami Committee on Electoral Reforms and in the 255th Report of the Law Commission of India. In all these instances compulsory voting has been rejected citing practical reasons pertaining to its implications. What has been crucially absent is a systematic normative debate over the practice.
Compulsory voting has also been a subject of Private Member Bills, both of the Lok Sabha and Rajya Sabha and has been introduced four times in both the Houses. In the Lok Sabha it was introduced by Shri Janardhan Singh Sigriwal, Shri Varun Feroze Gandhi, Shri Chandrakant Bhaurao Khaire in 2014 and by Sukhbir Singh Jaunpuria and Chandu Barne Shrirang in 2017. In the Rajya Sabha it was introduced by Shri C.P. Thirunavukkarasu in 2001, Dr. T. Subbarami Reddy in 2002, Shri V. Narayanasamy in 2007 and 2009, and Shri Jai Parkash Aggarwal in 2006. The Indian political establishment has displayed curiosity, to say the least, towards compulsory voting time and again. A common thread which runs through the ‘object and reasons' portion of all the Bills is that low voter turnout erodes the representativeness and legitimacy of the elected governments. The Bills contain recognition of the fact that voting should not be perceived as an onerous task by the electorate; therefore many of them contain provisions which stipulate directions to the Election Commission to ensure setting up of adequate polling booths in convenient locations.
In 2014 the State of Gujarat made amendments to its local body laws and introduced an “obligation to vote” in municipal, nagarpalika and panchayat elections.6 The provision says that it shall be the duty of a qualified voter to vote at the election; however, he will be free to cast his vote in favour of none of the candidates contesting in the election.7 Further, the amendment also introduces the term “defaulter voter” who will be designated so by the election officer after the former has been given notice of the same.8 Thereafter the defaulter voter would be required to provide the reasons for failure to vote. There are exemptions to the obligation to vote on the basis of illness, bodily infirmity, abstention on the date of the election from the country or State of Gujarat and other such valid and sufficient reasons.
It has been often asked that what good would “just turning up” on the day of voting do. In the past abstentions from elections served various ends, one of them being that it was considered as a form of political protest. Times have changed and so have the means of protesting. NOTA is a more potent way of protest and a more meaningful activity than not turning up on the election day at all. In 2013 when the Election Commission was directed by the Supreme Court of India to introduce NOTA the Apex Court hoped that it would enhance voter turnout in urban areas as the urban voter would mark NOTA to express discontent with the quality of politics rather than boycotting the polls.9 The right to vote in India is a statutory right provided in the Representation of People Act and also entails refraining from voting at an election within its ambit. But in this case it was observed by the Apex Court that abstaining from voting is not an ideal option for a responsible citizen and the only way such discontentment can be made effectual is through NOTA.10 In a way the Supreme Court restricted the meaning of right not to vote to mean not to cast vote in favour of a candidate if the voter is not satisfied with the kind of candidates listed on the EVM and did not support low voter turnout.
Conclusion
Concurrent elections or simultaneous holding of elections for all levels of government are also suggested as a means of increasing voter turnout. However, studies have shown that there is a downside to concurrent elections, that is, it leads to coat-tail effect which is the ability of a popular leader of a political party to attract votes for other candidates of the same party. That's why compulsory voting is preferred over other means of raising voter turnouts. In fact there have been studies in the non-Indian context which have shown that compulsory voting regimes have high welfare spending policies and as far the effects of the practice on the electoral fortunes of political parties are concerned, it has been observed that compulsory voting outcomes are more favourable for Left parties than the far-Right, as is often feared.
When Lijphart argued that “voluntary voting reproduces social inequalities in the field of political participation”11 and presented a strong case for making electoral participation obligatory, he meant that low voter turnout leads to unequal turnout and promotes representational inequality with the elected government being responsive to a particular class which habitually votes. He was of course referring to the unique American phenomenon where the socio-economically disadvantaged class of people does not vote in same numbers as the privileged class thereby resulting in biased policies. Therefore Lijphart found socio-economic status and voting to be positively linked.12 In India the reverse is true, that is, it is the economically privileged and urban located electorate which defaults when time comes to exercise the franchise. Voter turnout in urban areas is far lower than in the rural counterparts. In the midst of the general elections of 2014, the CEO of Niti Ayog stated that compulsory voting is worth a try in India. It still remains to be seen how the Indian electorate will respond to the practice of compulsory voting. Low voter turnout is “not a benign, neutral or self-equilibrating phenomenon and as such it doesn't appear to serve any positive democratic functions”.13 Trends of low voter turnout in India, especially in urban areas, doesn't show any signs of abatement; therefore the time can't be more ripe for academic engagement with the practice of compulsory voting in the Indian context.
References
1. “Barack Obama praises Australia's mandatory voting rules”, The Guardian (2016) available at https://www.theguardian.com/us-news/2016/apr/10/barack-obama-praises-australias-mandatory-voting-rules.
2. Sarah Birch, Full Participation: A Comparative Study of Compulsory Voting 20 (United Nations University Press, 2009).
3. Arend Lijphart, “Unequal Participation: Democracy's Unresolved Dilemma”, Vol. 91, American Political Science Review, 1-14 (1997).
4. Birch, pg. 41.
5. John Stuart Mill as cited in Birch, 41.
6. Section 16 A, Gujarat Local Authorities Laws (Amendment) Act, 2009 as amended in 2014.
7. Section 16 A (2), Gujarat Local Authorities Laws (Amendment) Act, 2009 as amended in 2014.
8. Section 16 B, Gujarat Local Authorities Laws (Amendment) Act, 2009 as amended in 2014.
9. PUCL v. Union of India [2013] 10 SCC 1.
10. Ibid.
11. Arend Lijphart, “Unequal Participation: Democracy's Unresolved Dilemma”, Vol. 91, American Political Science Review, 1-14 (1997).
12 Lijphart, pg. 1.
13 Jason Brennan and Lisa Hill, Compulsory Voting—For and Against 152 (Cambridge University Press, 2014).
The author is a Doctoral Scholar, The Indian Law Institute, New Delhi.