The right to vote should include the right to not vote: Subhash Kashyap

Interview with leading constitutional experts

According to recent reports, the Gujarat government is set to notify the law on compulsory voting ahead of the municipal elections in the state in October. This would include a penalty clause for non-voters while offering an option to vote online for those who are unable to go to polling booths. One of India's leading constitutional experts, Subhash Kashyap, talks to Ranjita Ganesan about the legality and feasibility of the rules.

What is your view on the idea to have compulsory voting in the municipal elections with a penalty clause?  

Personally, I think it is very dicey. On constitutional and legal grounds, a question would be raised whether the state can compel a person to go to the polling booth and vote if he does not want to. The right to vote should include the right to not vote. This is not a matter of opinion, it is legally questionable. Another point is how far will it be operationally practical? There may be many reasons why a citizen does not vote or decides not to vote. How would they deal with that?

Some say this will go against Article 21 of the Constitution, which guarantees personal liberty. The other argument is that it is fair since people can still use the NOTA option. Your thoughts?
 
Yes, it may be questioned for being against Article 21 of the Constitution. As for the other side, NOTA is only for saying 'none of the above', which means you are not for any of the candidates on the list. It does not amount to the right to reject. Even if the number of NOTA votes is higher than the number of votes the most successful candidate gets, that person will still get elected. For saying NOTA, why would one go to the polling booth? It is only a palliative, it does not have much substance. 

What kind of penalty is likely to be meted out to non-voters? 

I have not seen the exact law and am not aware what penalty they have provided for. But if they impose a financial penalty in a country which has the world's largest number of poor people and illiterates, would it be at all agreeable or enforceable? Also, if someone does not go to vote, how would they expect him to go to pay the fine? 

Apart from penalty, there will be an option of voting online to encourage voters. Would this help in boosting turnouts, especially among the more reluctant in the urban population? 

That is a welcome suggestion. There is no harm there as it has no element of compulsion. Technology should be
integrated in the process. With the advancement of technology going as it is, there should be a provision to have handheld voting machines with people going house-to-house. 

With the option of voting online, some fear a risk of the secret ballot being compromised. Your view?

That a provision can be misused is no argument against the provision itself. Just as jewellery in a house can be stolen, data can be stolen. Cyber crimes exist but you have to do your best to protect information.

What would you suggest in order to boost voter turnouts?

My personal opinion is that instead of being a 'right' to vote, it should be made a fundamental citizenship duty, under the chapter on fundamental duties. To make it really operational and effective, you should provide incentives and disincentives. A large section of people who do not vote are those who have passports and foreign travel; they do not want to stand in the sun to cast a vote.

A certificate of voting should be provided to voters and it should be mandatory to produce it at the time of travel, for the issue of passports or driving licence. It should also be produced to get a ration card or the BPL card. To avail these benefits which flow from your citizenship, you should be required to perform the citizenship duty of voting. If you have not voted, you would have no right to benefits, subsidies, or to travel abroad and open black money accounts there. Income tax rebates under various acts could also be made available only if you vote. You can cover very large sections of people this way. My own study shows if this is implemented, you will immediately have 90 per cent voting. It has the same effectiveness of compulsory voting without the legal problems.