Saturday, August 22, 2015



HC stays compulsory voting rule
Gujarat government's controversial legislation making voting compulsory in civic body polls and imposing a fine for any violation was on Friday stayed by the High Court which observed that the 'right to vote' itself provided right to refrain from voting. Under rules notified by the state government in July for implementation of the compulsory voting law, a fine of Rs 100 is to be levied on voters if a registered voter failed to vote in the local body polls in the state without giving any valid reasons.

There are conditional relaxations for elderly, students, those suffering from illness, mourning a death or attending a wedding on the day of election. The local body polls in 253 municipalities, 208 taluka panchayats, 26 district panchayats and six municipal corporations are expected to be held in October this year. The 'right to vote' itself provides right to refrain from voting and it cannot be turned into 'duty of voting', HC observed while admitting a petition challenging the Gujarat Local Authorities (Amendment) Act 2009, which makes voting mandatory in local body polls in the state.


The division bench of acting Chief Justice Jayant Patel and Justice N V Anjariya stayed implementation of compulsory voting while admitting the plea filed by lawyer K R Koshti of Swaraj Abhiyan against the Act. A Bill making voting compulsory for all the citizens in civic bodies was passed by the state Assembly in 2009 and became a law when present Governor O P Kohli signed it. Petitioner's lawyer P S Champaneri submitted, "The right to vote is an expression of a citizen and whether or not to vote includes the right to not vote. The right to vote cannot be termed as the duty by the state and therefore the provision of compulsory voting Act is violative of fundamental rights given to any citizen under the Indian Constitution."

He also argued that the state Legislatures does not have any legislative competence to enact a law regarding voting, as it comes under the purview of the Constitution and any such law can only be amended or enacted by Parliament. The petitioner demanded that the Gujarat government and the State Election Commission be restrained from implementing the provisions of the Gujarat Local Authorities (Amendment) Act, 2009.


The Gujarat Local Authorities (Amendment) Bill was first introduced in the state Assembly in December 2009 and passed by a majority vote when Modi was chief minister. It was, however, returned by the then Governor Dr Kamla Beniwal in April 2010 with remarks that "forcing voter to vote is against the principles of an individual liberty". Beniwal had returned the Bill to the government, with her comments, for reconsideration. "The present Bill violates the freedom which a citizen is entitled to enjoy under Article 21 of the Constitution," she had said in her letter asking the then state government to make amendments to the Bill. However, ignoring her suggestions, the then state government had once again got the bill passed on December 28, 2011 by majority vote in the Gujarat Assembly which was sent to Beniwal for her assent.

In November 2014, after the change of government in Delhi, Gujarat Governor O P Kohli gave his approval. The proposal to make voting compulsory in local elections was drawn up when Modi was chief minister. Although he stepped down from the post in May last year after his triumph in general election, the legislation continued to be steered through the state legislature and was finally approved last month. Modi's support for the measure has led to expectations that he may try to make voting compulsory in other polls.


Opposition Congress hailed the order, but the BJP government vowed to "not give up legal fight" over the matter and "exhaust all remedies" available. Senior Congress leader Shankarsinh Vaghela said, "The stay order is a warning to the state government's action against democracy. The HC order is a slap on the face of BJP leaders who have autocratic mindset." Sociologist Gaurang Jani also welcomed the stay, saying: "Voting is the constitutional right of a citizen but it should not be made compulsory. It is a citizen's choice whether s/he wants to vote.

Instead of forcing people to vote, how about making it compulsory for political leaders to fulfill their commitments. Why are they not held responsible for not fulfilling the assurances they gave during poll campaign?" Human rights activist Father Cedric Prakash said, "Making voting compulsory is against human rights. People should be encouraged to vote by making elections free and fair. Even today, there are several people whose names are not part of the voters' list. I welcome the HC order as they have stopped violation of human rights."

Meanwhile, government spokesperson and Health Minister Nitin Patel said, "We will go through the HC order and take further action. We are not going to give up. This is just a stay, not a final order. We will definitely fight the case till the end." Asked if the BJP Government will challenge the stay order before the Supreme Court, Patel said the administration will exhaust "all legal remedies" in the case.

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