Compulsory Voting and Right to Freedom of Speech and Expression

These days everything is in question. If you thought voting was the political right and duty of every citizen of the country, this blog has something else to say. Read along to know how freedom of speech and expression given in Article 19(1)(a) of the Constitution can be violated with voting being forced.

Introduction

The idea of making voting compulsory was rejected by Dr. B.R Ambedkar on account of practical difficulties. Compulsory voting is a concept where eligible citizens cast their votes in the national or local elections. An effective compulsory voting leads to penalties on citizens who fail to cast their vote.

Violation of Fundamental Rights

Imposing an obligation to vote in elections are in violation as an unreasonable restriction of the Fundamental Right to Freedom of Speech and Expression.

It is a settled principle of law that legislative enactments are fit to be struck down on the grounds of violation of Fundamental Rights[1]. The nature of the Fundamental Rights which are infringed by the compulsory voting is the Fundamental Right to Freedom of Voting[2] and the Fundamental Right to Freedom of Peaceful Protest[3] both of which find an authoritative place within the Meaning of Article 19(1)(a) that guarantees the Fundamental Right to Speech and Expression.

Violation of Right to Freedom of Voting

“Voting is a formal expression of will or opinion by the person entitled to exercise the right on the subject or issue in question[4]”.

The Right to Freedom of Voting under Article 19(1)(a) amounts to “the casting of vote in favor of one or the other candidate marks the accomplishment of freedom of expression of the voter[5]”.

The Right to Freedom of Expression indubitably implies in its existence the right not to express one’s self. Freedom of Speech and Expression thus predicates the freedom of dissent[6].  Where an individual, chooses to remain silent and not express his political will, by not participating in the electoral process, State’s compulsions enforcing the contrary amount to an unreasonable restriction upon both the Right to Freedom of Expression and the Liberty of an individual. 

Also Read  Insolvency and Bankruptcy Law: Expectations and Reality

Unreasonable Restriction on the Freedom of Voting

The concept of compulsory voting put restrictions upon the Freedom of Voting amounts to an unreasonable and therefore, unlawful restriction upon said Fundamental Right as the impugned Sections[7] comprehend in their consequences the suppression of the will of an individual who may choose to desist from exercising his freedom. A right, cannot justly imply an obligation and where the obligation so placed is ultra vires the Fundamental Rights guaranteed by the Constitution itself, it ought to be struck down.

It is settled principle of law that the restrictions imposed on the Freedoms guaranteed under Article 19 must be reasonable and this restriction may derive its authority on predetermined grounds established under Clauses (2) to (6) of Article 19 lest it be struck down by the Courts on account of the abovementioned encumbrance upon such Freedoms[8].

The grounds for reasonable restriction of Freedom of Speech and Expression are enumerated as follows:

  • Sovereignty and Integrity of India
  • Security of the State
  • Friendly relations with foreign States
  • Public order, decency and morality
  • Contempt of Court
  • Defamation

Incitement to an offence.

The objects to be achieved by the provisions of Compulsory Voting, that is, increase in voter participation, draws no nexus with any of the grounds for the Reasonable Restrictions enumerated above.

Violation of Right of Freedom of Right to Protest

The concept is clearly violative of an individual’s Fundamental Right of Freedom to Protest by creating a compulsion to vote.

Right to show dissent by way of peaceably protesting forms a fundamental right guaranteed under the Constitution. It can be seen by the case of Anita Thakur and Ors. Vs. Govt. of J and K and Ors.[9]:

“8.…It hardly needs elaboration that a distinguishing feature of any democracy is the space offered for legitimate dissent. One cherished and valuable aspect of political life in India is a tradition to express grievances through direct action or peaceful protest. Organised, non-violent protest marches were a key weapon in the struggle for independence, and the right to peaceful protest is now recognised as a fundamental right in the Constitution.”

And in compulsory voting it unjustly take away the right of people to peacefully protest against the administration and his grievances as regards the Government by desisting from voting at an election thereby resulting in drop in voter turnout and lack of public participation.

Also Read  GST: Footing with Constitutional Mandates

As is propounded in the aforementioned case, India has had a colorful history of bringing about change at vast magnitudes both social and political exercising the power of directs action and peaceful protest. It is a tool for social change, which is necessary. Those who make peaceful revolution impossible, make violent revolution inevitable[10]. It is no question, that peaceful protests form an integral part of a just democratic system as they are the most eloquent means of communicating the grievances and needs of the people by utilizing the means of social inclusion and empowerment.

Conclusion of Compulsory Voting

Hon’ble Supreme Court in the case of Ram Singh Vs. State of Delhi[11]that it is the Right that is fundamental, not the limitations and it is the duty of the Supreme Court and all Courts in the land to guard and defend those rights, zealously. It is the great merit of the  dissenting judgment of Mr. Justice Khanna in the Habeas Corpus Case[12]that he pointed out that if it was enough to justify conduct by saying that there is law, then the laws of the Nazi Germany were laws! So, what is wanted in a law is something more than mere positive injunction: the law must be reasonable law[13].

We must say that compulsory voting is manifestly unlawful and unconstitutional as it Violates the Fundamental Right to Freedom of Voting under guaranteed under Article 19(1)(a).

Also read Article 368: Keeping Constitution Alive


[1]Rajbala&Ors. v. State of Haryana & Ors. (2016) 2 S.C.C. 445.

[2]People’s Union for Civil Liberties and Anr. v. Union of India .and Anr. (2003) 4 S.C.C. 399; People’s Union for Civil Liberties v. Union of India, (2013) 10 S.C.C. 1; Rajbala&Ors. v. State of Haryana & Ors. (2016) 2 S.C.C. 445.

[3]Anita Thakur and Ors. v. Govt. of J and K and Ors., 2016 (7) SCALE 725.

Also Read  Corruption: Understanding with Context to Impunity

[4]Lily Thomas v. Speaker, Lok Sabha, (1993) 4 S.C.C. 234.

[5]People’s Union for Civil Liberties and Anr. v. Union of India .and Anr. (2003) 4 S.C.C. 399.

[6]Abrams v. U.S.,250 U.S. 616, 630(1919).

[7]Ibid.

[8]Kameshwar v. State of Bihar, A.I.R. 1962 S.C. 1166.

[9]2016 (7) SCALE 725.

[10] JOHN F. KENNEDY, PROFILES IN COURAGE (1ST EDITION).

[11]A.I.R. 1951 S.C. 270.

[12] Additional District Magistrate, Jabalpur v. Shivakant Shukla, A.I.R. 1976 S.C. 1207.

[13]F H SEERVAI, THE SEERVAI LEGACY (2nd Edition).