On Tuesday morning, I woke up to the shocking news in The Indian Express that the Election Commission had signed MoUs with over 1,000 corporate houses undertaking to monitor “electoral participation of their workforce” and publish on their websites and notice boards those who do not vote.
To make matters worse, the Chief Electoral Officer of Gujarat has said that the employees of state public sector units and government departments who don’t vote will also be tracked. The report also mentioned that on a recent visit to Gujarat, the CEC himself had said that though the commission cannot enforce compulsory voting, it “wanted to identify workers in big industries who don’t vote despite availing the holiday”.
These shocking developments raise once again serious issues surrounding voters’ rights, compulsory voting, secrecy of voting and debates around privacy and coercion. Any coercion — particularly coercion of the kind being proposed by the EC in this case — betrays an authoritarian approach that is not only antithetical to democracy, but is directly violative of the Constitution and the laws of the land.
The Supreme Court, in PUCL vs Union of India, 2013, (popularly known as the NOTA judgment) has held that abstention from voting and negative voting are protected as freedom of expression — a fundamental right (Article 19). Earlier, in April 2009, the Court had taken the same view while dismissing a plea that sought to make voting mandatory on grounds of governments not representing the majority because of low turnouts.
In every election, there will be those who do not vote out of conviction or for ideological reasons. More importantly, there are millions of daily wage workers, and many homeless and ill. How can those who are unable to vote, given their circumstances, be called anti-democratic and forced to act under duress? The proposal for compulsory voting has been raised for years in response to chronic voter apathy, especially in urban areas. However, persuasion and motivation by education rather than compulsion is the answer. The EC has consistently held and practised this by implementing its flagship programme called SVEEP (Systematic Voters Education for Electoral Participation) since 2010.
It is important to have a look at all the legal and constitutional provisions that this action would be violative of. First, Section 79 D of the Representation of People Act, 1951 defines “electoral right” to mean the right of a person to… vote or refrain from vote at an election”. The same provision exists in the Indian Penal Code, vide Section 171A (b).
The law completely enables, but does not force, citizens to vote. Section135B of the Representation of People Act, 1951, grants a paid holiday to every person employed in any business, trade, industrial undertaking or any other establishment.
Even a daily wage worker shall be paid for the day. Contravention of the law carries a fine for the employer which may extend to Rs 500. This amount may sound laughable but please remember, it was fixed over 25 years ago. The only exception is essential services. Employers at best can cut the wages of those who take leave but don’t go to vote. This leave or wage deduction is normal in the functioning of companies, but such information is not to be put up on notice boards.
It is important to recall the rulings of the apex court on the matter. In PUCL vs Union of India, the Court said: “… free and fair election is a basic structure of the Constitution and necessarily includes within its ambit the right of an elector to cast his vote without fear of reprisal, duress or coercion. Protection of elector’s identity and affording secrecy is therefore integral to free and fair elections and an arbitrary distinction between a voter who casts and a voter who does not cast his vote is violative of Article 14. Thus, secrecy is to be maintained for both categories of persons.” (Emphasis added) How then can the list of non-voters be put up on a company’s notice board or website? It will clearly be contempt of court.
The noble objective of enhanced voter participation can be best achieved through systematic voter education, amply demonstrated by the ECI in elections in all the states and Union territories since 2010 when a voter education division was set up. This soon evolved into its SVEEP programme. This has led to all elections ever since seeing the highest-ever turnouts. In the 2019 Lok Sabha election, the 67.3 per cent turnout beat all previous records. Many states have reached close to 90 per cent turnout and above. The EC’s consistent assertion that motivation and facilitation, rather than compulsion, are the best ways to address the issue, has been clearly vindicated.
The voter education programme has sought to motivate the youth to participate in democracy by registering as voters, voting in every election and voting ethically —that is, without inducement. It has involved schools and colleges to take the registration facility to the doorstep by introducing voter clubs, campus ambassadors and youth icons and placing drop boxes in colleges for new applications.
Employers have been encouraged to create similar facilities in their offices. They are legally obliged to close their establishments on poll day, but this is seldom enforced. Instead, employers are asked to allow the employees a couple of hours off to enable them to go and vote. “Naming and shaming” of non-voters is not an option available, even to the Election Commission.
In fact, alarmed by the news report in The Indian Express, I took the liberty to contact Rajiv Kumar, CEC, who clarified to me that the MoUs are only for voter education and facilitation and not for compelling them to vote, not to speak of “naming and shaming”. I think the statements of CEO Gujarat and of the CEC himself to the media have set the cat among the pigeons. The ECI must immediately issue a clarification to nip the commotion in the bud.
The writer is former Chief Election Commissioner of India and author of An undocumented wonder — The making of the great Indian election
