Bernie Sanders, in the run up to the U.S. Presidential elections of 2016 wrote on twitter “if we truly believe in a vibrant democracy, then we [the U.S.] must have the highest voter turnout in the world.”

Similarly, the former U.S. President Barack Obama hailed the transformative capacity of compulsory voting in making Australia a country with one of the highest voter turnouts in the world. In the wake of dismal voter turnout in the present Lok Sabha elections in India, especially in the urban areas, the CEO of Niti Aayog recently said that compulsory voting is worth a try in India. Simply speaking, compulsory voting is a legal obligation on enfranchised citizens to attend the polls during election time and is often purported as a solution to the problem of low voter turnout.

In compulsory voting regimes voters are not compelled to cast their votes in favour of a particular candidate; rather they are free to mark the ballots as per their own volition and can even cast blank ballots or None-of-the-above (NOTA) if they are dissatisfied with the candidates on the ballot. Presently there are around 26 countries in the world which practice compulsory voting in some form. In these countries, the provisions related to the practice are either entrenched in Constitutions or find place in statute books.

The Belgian Constitution, for instance, in its Article 62 states that voting is obligatory and secret. On the other hand, in Australia the provisions related to compulsory voting are not contained in the Constitution but are codified in the Commonwealth Electoral Act. In 1997, Thailand adopted compulsory voting in order to curb the then rampant phenomenon of vote buying. In India in 2014, the state of Gujarat made it mandatory for all eligible voters to cast their ballots in Municipal, Nagarpalika, and Panchayat elections or be subjected to disadvantages or consequences.

The idea of compulsory voting for India, however, was mooted for the first time on 4 January 1949 by M. Ananthasayanam 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 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 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 and in many private member bills. The highest ever voter turnout that India experienced was in 2014 which was 66.4 per cent. And as per Election Commission of India, the voter turnout up to the fifth phase has been 62.46 per cent with urban areas lagging behind their rural counterparts in terms of democratic participation.

The prima facie opposition to the institution of compulsory voting stems from its terminology. Because how can a law compelling the electors to vote be liberal and democratic? It is further argued that inherent in the right to vote is a right not to vote and compulsory voting violates the latter right. The situation becomes even more problematic in India because the Representation of People’s Act in Section 79 (d) defines “electoral right” as “to vote or refrain from voting at an election”. Firstly, political theorists attribute non-domination and noninterference as components of liberty.

Compulsory voting violates one conception of liberty i.e. liberty as noninterference but preserves and strengthens the other conception i.e. non-domination from the political class and by consequence democracy. So, to term compulsory voting to be entirely illiberal would be incorrect. Secondly, doubts have been cast on the tenability of the assumption that a positive right invariably results in a corresponding negative right. In other words, the “act of not voting” does not indicate that a right is being exercised. In PUCL v. Union of India (2013) while directing the Election Commission to include the option of NOTA in EVMs, even the Supreme Court observed that “abstaining from voting is not an ideal option and the only way discontentment can be made effectual is through NOTA”.

The attempts of asserting the right of not voting have been put to judicial tests since early twentieth century, most prolifically in Australian courts. But the courts (even American) have held the right to vote as fundamental, “preservative of all rights” and “the citizen’s link to his laws and government”. The Australian courts have observed that there has been a “form of irreversible evolution in the development of electoral laws towards maximum participation in elections” and any law which has the effect of “rendering voting voluntary would be constitutionally invalid due to its negative effect on maximising participation”.

The opponents of compulsory voting often ask what good would “just turning up” on the election day do? The impact of voter turnout goes beyond “just turning up” because even if the voters turn up to cast NOTA, it’s still a more meaningful and information- laden activity signalling discontent. In fact, the the Australian Electoral Commission undertakes analysis of blank and spoilt ballots. There have been studies (in non- Indian context) that properly enforced compulsory voting improves income distribution. In Belgium, studies have shown that the abolition of compulsory voting would result in “over-representation of the affluent and the male gender”.

As far as the effect of compulsory voting on the fortunes of political parties (left, right or far-right) is concerned, studies in the Australian context have shown that compulsory voting seems to favour left-based parties. The resistance to a compulsory voting system in a voluntary voting regime is obvious. Although the implementation of compulsory voting in the local body elections in Gujarat has been stayed by the state’s High Court but its implementation is not entirely out of the realm of possibility.

Of course, implementation of law of such an import would come with unforeseen financial and administrative costs. If it is to be made palatable to an electorate which has never experienced it, the practice should not be introduced as a piecemeal measure. The ease of getting voter identity cards made, hassle free transfer of voter IDs in case of change in residence, weekend voting are some such measures which can make the act of voting less burdensome. Australian compulsory voting laws were first tried for the local elections before being implemented at federal level.

The same can be tried in India as well. Compulsory voting has the capacity to achieve higher than highest voter inclusion. Demos is the single most important constituent of democracy and can dictate the agenda of the governments if it turns up in large numbers. Therefore, discrediting compulsory voting by terming it illiberal and undemocratic when all it seeks to attain is high turnouts at elections would require evidence to the effect that high turnout is inimical to democracy and the rights of the citizens.

(The writer is a P.hD candidate at the Indian Law Institute)