Research Foundation for Governance: in India

The current hullabaloo surrounding Anna Hazare and the Lokpal Bill has taken the country by storm. In my opinion, the way the entire protest has resulted, is a missed opportunity for India.

Anna may have ‘won’ his fight but I am doubtful whether anything actually came out of all this.

People compared Anna with Gandhi and even called his fight the second independence movement for India. Jantar-Mantar was compared with Tahrir Square and the present uproar to the Egyptian revolution.

Let’s be honest! Whatever happened around the Lokpal Bill can hardly even be compared to a revolution. There was no government overthrown, there was no change-agenda, there was no fundamental shift in the way our country functions. What came out of it was setting up of a committee to draft a bill to be passed in the Parliament! A bill which we can just hope will change things around us.

In fact, what the Jan lokpal bill sets out to achieve is being called dangerously unconstitutional by the legal experts!  It purports to create an all-pervasive authority which can even contest the actions of the highest of the offices including the Prime Minister or the Supreme Court judges. Something of this nature would not stand the test of the rule of law in the courts even for a few seconds.

And frankly, our country already has far-too-many well-meaning legislations, which have been conveniently put into their respective toothless positions through interpretation or (lack of) implementation. In all likelihood, the Lokpal Bill may share the same fate.

Who has gained the most from all this are a few ‘representatives’ of the civil society who will be part of the ultimate drafting of the bill. It seems thoroughly surprising as to how these few people were chosen? Who do they actually represent? Why is so much power being given to them?

Unfortunately, the amount of frustration or anger that people had for all these years against bad governance in general and corruption in particular, has finally come out on the Bill which did not really deserve all this.

There were marches and protest across the country! I was receiving messages at all times of the day for joining the protest. This opportunity could have and should have been channelized for a larger cause, a larger agenda of nation-building. The politicians or even these ‘representatives’ should have engaged more openly and transparently with people and should have tried to understand their wants. There should have been a better dialogue on all fronts concerning corruption, a wider agenda for reforms – which are so badly needed.

But sadly, what this ended up becoming was propaganda merely for the Lokpal bill. Sadly, the protest was directionless, ineffective and a waste of everyone’s time. On the top of all this, it ended up setting a bad example of getting things done through a hunger-strike, which in my opinion is a completely unacceptable form of revolt in a democracy.

Many are already cynical about the ultimate outcome of such a protest. Historically it has been proven that even revolutions don’t affect much of a change within the governance processes. Most of the times, they merely result in a regime change. One corrupt government is replaced by another corrupt government.

However, assuming that the best possible Lokpal Bill comes into existence, it still would be a curative measure. What is required is a fundamental shift in the way people perceive governance – a preventive approach where there are no corrupt people to start with! And this can only happen through long term sustainable efforts.

The fast has already been broken and the victory has already been announced. Those who have marched all these days will go back home and wake up next day to the same India. A one that saw a potential for change but was fused out even before it became a wide ranging movement fundamentally shaking the way of governing our political institutions. This could be very dangerous – it might create a disillusioned mass amongst the young generation – who would see their efforts resulting into nothing much.

Although, I hope that the momentum continues. I hope that the present ‘leaders against corruption’ don’t call it quits when their purposes have been achieved. I hope they guide and channelize the energies of people in the right direction. In a secret corner of my heart however, I doubt!

- Kanan Dhru

Ramswaroop Chaudhary, intern at Research Foundation for Governance in India and 1st year student of law at Institute of Law, Nirma University, writes about his visit to the State Election Commission, Gujarat.

^{“I’ve wanted to win at everything, every day, since I was a kid. And time doesn’t change a person; it just helps us get a handle on who we are. I still hate losing–I’m just more gracious about it. I’m also aware that setbacks have an upside; they fuel new dreams.” – Dara Torres}

^{As part of our internship, I and Himani Bhargava, my fellow intern from Research Foundation for Governance in India (RFGI), visited the State Election Commission’s office on 4th of March.  We wanted to get information about party system and election system in India as part of our project at RFGI. The office of the Gujarat State Election Commission is located in 6th flour of 9th block (6th of 9th) in the Gujarat Vidhansabha campus.}

^{Many things came to my mind on seeing the inside view of the campus I had so often seen only from outside! It was full of cars with red and green lights and we were really fascinated by them. In my college, we often discuss about money and power in politics. Today, I realized how power is stronger than money and ultimately, the power is with the people of Gujarat. We clicked some photos near the Vidhansabha building and thought that we should not miss this opportunity.  We reached outside the office and were in a big dilemma whether we will be able to handle the situation with the Commissioner or not? Will they think we are too young and not give us the information we need? But finally we gathered the confidence and reached the 6th floor of 9th block.}

^{First, we introduced ourselves to the Personal Assistant of the secretary of the Commission. He was a very kind person and fixed our appointment with the Commissioner. In a few minutes, the most awaited moment arrived! We went in the cabin of Mr. P. S. Shah, Secretary of Election Commission. His office was very well-furnished and well-equipped. Mr. P.S.Shah was surrounded by many files. Now one thing was clear in my mind that in order to hold this position, you have to be a very responsible and hard-working person. He told to us “sit on the chairs with smile”. Mr. Shah was still busy with signing and checking the files. Now we introduced ourselves and explained our project to him. He asked us our views about the general scenario of election system in India and we tried to answer him with the best of our knowledge. Our discussion went on for about forty-five minutes. He explained us about the whole election system in the State of Gujarat as well as in India. He further told us “How in a democratic country election can bring positive changes”.}

^{I then asked about the problems faced by the Election Commission during elections. He replied that there are many problems in our system that can only suppressed by strong hands and public support. Country like India is still constrained by regionalism, religion, cast and race, he said. We were really enjoying talking to him. We then discussed about the “Representation problems in India through methods such as the First Past the Post system and the Two-Round system. He quickly explained to us his mathematical logic in reply to our questions, which we were trying to solve from last 10 days!  Lastly, he told us on compulsory voting that “in a country like India compulsory voting may be a positive step.”}

^{We were really pleasantly surprised that our government machinery was so accessible for a common man. He in fact asked us to bring more question next time! He also gave us his personal contact number for any query regarding election at any time. Our session end with P.S. Shah got over but those 45 minutes really enlightened our knowledge. It really became a memorable time for us!}

^{We are very thankful to Kanan ma’am  and to RFGI, for giving us such a opportunity.}

Karishma Jain

Despite India’s prodigious progression as a nation, the Politics of this country still seems to have a long way to go before receiving similar distinction. Corruption deeply rooted in the administrative structure, electoral manifestos that are scarcely met, lack of interest in spreading awareness about pivotal social and political issues, weak infrastructure due to inadequate funds and management, even the country’s security apparatus seemed to have exposed loopholes post the 26/11 terror attacks. Of course it is people like us, the common citizens that are left to face the harsh consequences of all these poorly handled and ill-thought-out circumstances. What adds to this frustration is the fact that is it we who elect these so called ‘leaders’ from time to time in the hope of witnessing a change. Could that be the reason for voter apathy, or even a low voter turnout? In fact it has been found that many opt out of voting for a common reason: “They don’t know who to vote for and don’t want to make a mistake and vote for someone who would make things worse than what they already are!” (Williams.C).

Perhaps what could help in this scenario is if the citizens knew more about the candidates and how well prepared and serious they were as far as their manifestos are concerned? Then the answer is pretty straightforward. What we need is election debates, which primarily is a debate revolving around important domestic issues held between the leaders of the parties standing for candidacy. The nature of these debates are such that it would aid the citizens in making informed decisions about the candidates by giving them the opportunity to recognize the right candidate from the right party at the right given point in time, and also distinguish between the various characteristics of each candidate. Of course, this method is no stranger to countries like the United States, France, Australia, New Zealand, and even Iran.

Lets take the example of the United Kingdom. Britain made history earlier this year when the leaders from the three mainstream political parties, namely, Gordon Brown, David Cameron, and Nick Clegg, gave consent to debating in front of the public eye for the very first time, which in fact was also televised live. The results of this debate proved to be fruitful as Mr. Clegg who was not as recognized as Mr. Brown or Mr. Cameron emerged as the winner of Britain’s first TV election debate as this provided him with the valuable platform that gave him the window to boost his profile. (www.theaustralian.com). The lot of intelligent viewers along with the studio audience were given the opportunity to listen and judge each candidates’ oration and rebuttal. Many said that Clegg spoke confidently and passionately, surprising the huge majority who thought he would be the worst performer. In addition, one audience member described Clegg as the ‘Barrack of British politics.’ (Dodds.P). Clearly this method enlightens one on the different shades of a candidates’ personality not noticeable or known otherwise, or perhaps even misunderstood.

As can be understood from the example provided above, the importance of these debates cannot be overstated. To begin with, election debates ease off the process of leaders reaching out to target their audience by providing a direct platform instead. This in turn would obviously save up a lot of capital otherwise spent on traveling extensively around the country and organizing rallies which op top of it all is mainly attended not by the citizens, but by party loyalists. In fact, it has been noted that “the present spending limit for candidates is Rs.25 Lakhs in Parliamentary elections and Rs.10 Lakhs in Assembly elections.” (Bansal.S) What cannot be ignored is the fact that the leaders once elected would hope to acquire the return on investment, and India’s lack of open and fair systems to raise funds for the parties would make this very prejudiced. Thus, conducting election debates would aid in the creation of a level playing field by eliminating the dominance of money power in elections.

The power of the media today in moulding one’s views undoubtedly has serious implications. Among all the establishments that lend a hand towards the make up of a public sphere in society, the media indisputably plays the most pivotal role. However, since we have become aware of the phenomenon of ‘paid news’ it is easy to say that corruption seems to have seeped deep down into this massive institution we call the Indian media. To our dismay, a 2004 article in Asia Times Online claimed that the Times of India too sold its space for paid coverage. (Bansal.S) In addition, playing ‘favourites’ seems to have become a hobby of media houses and journalists who are universally known to cover their stories based on these biases. In an environment like this how many times do we have to endure the tiresome process of going through the do’s and don’ts list before trusting someone? This is where such televised debates come into place as they completely lower the power of these media houses, and in accordance try to set us free of our uncertainty.

In conclusion, as mentioned above, the momentousness of election debates certainly cannot be overstated, as they are pretty much unambiguous. Being able to witness Indian leaders like Rahul Gandhi and Narendra Modi debate it out and give impromptu answers instead of the usual pre-written speeches would definitely be something not worth missing. It gives us, the citizens, the chance to view and analyze everything at face value instead of getting into the ‘he said, she said’ quandary. And of course, having more than a faint idea of who these candidates are would most definitely persuade us citizens to make the effort of going and casting our votes, knowing that we are not electing someone for wrong reasons. Democracy must be brought to every doorstep, and the idea of Election Debates seem to have the prerequisites to achieve this as it most importantly, gives a voice to everyone.

The Bar Council of India (BCI), under the stewardship of Mr. Gopal Subramaniam by announcing for an All India Bar Exam has initiated a much needed reform in the Indian legal system. With nearly 60,000 graduates entering the legal profession every year, it became hugely critical that these graduates be screened before being allowed to represent clients and be a part of the justice delivery mechanism.

The Bar exam will contain 100 multiple choice questions and will be conducted on December 5, 2010.

While, Research Foundation for Governance in India (RFGI), Ahmedabad supports this step in principle whole heartedly, it believes that some important inquiries remain unaddressed.

Firstly, does the BCI even have the mandate to conduct such an exam? In V. Sudeer v. Bar Council of India, the Supreme Court had held that introducing any eligibility criteria to the practice of law other than what is stipulated by Section 24 of the Advocates Act, 1961 would be unconstitutional. We believe thus, that a Bar exam would require, fore-mostly, an amendment to the Advocates Act.

Secondly, it seems the BCI’s decision to conduct a Bar exam is a hasty one. The present CLAT (common law admission test) which is held for admission into 11 National Law Universities was in the pipeline for nearly 3-4 years. It was only after long debates, discussions and deliberations that the CLAT, in its present form came into being.

This hurried decision by the BCI to conduct a Bar Exam has put many a present finalist students to disadvantage. Student concerns, asking for a deferral of the exam were well represented in this petition to Mr. Gopal Subramaniam. See this link: http://www.legallyindia.com/images/stories/docs/letters/bar-exam-NUJS-students-letter-to-BCI.pdf

Also it remains to be seen how BCI would be able to successfully satisfy the logistic requirements and administrative capabilities required for an exam of this magnitude in such a short time.

Thirdly, it must be noted that the Bar Council of India has also conceptualised a common law entrance test (CLET) for admission into all the law colleges in India. We believe that a CLET should have essentially preceded the Bar Exam. It is only after ensuring that our law students are capable enough to study law that can we legitimately expect them to clear an exam which tests their eligibility to practice in the bar.

Fourthly, the BCI announced that the Bar exam is intended to check for ‘eligibility’ and not ‘expertise’ and that it requires ‘a basic amount of preparation’ to pass. RFGI believes that the standards of the bar exam must be raised from an exam testing mere ‘eligibility’ to an exam which tests the ‘competency’ of the candidates.

Finally, the Bar exam will cost the aspirant a huge amount of thirteen hundred rupees. It is pertinent to note that BCI has involved Rainmaker, a private legal talent management company for running the bar exam. While, we have no reasons to doubt Rainmaker’s capabilities to conduct the test, we would humbly like to ask: are law students being made to pay for the profits of a private company?

RFGI, is however, unequivocal in its support for a Bar exam. We congratulate the Bar Council of India on this superlative step. However, we believe that the above mentioned questions deserve BCI’s attention and hope that they will be answered very soon.

When I first looked the Research Foundation for Governance (RFGI) up on the internet, I was happily surprised with how well structured the website was. After reading the introduction, the goals and methods and the section about the RFGI team, I was sure this was going to be the perfect internship for me. Although I always try not to have any expectations at all, the introduction material and articles that I had read left me with the expectation of joining a major organisation which would have been around since at least 5 years or more. Furthermore, after seeing a small part of her extensive and impressing resume, I thought Miss Kanan Dhru would probably be a well established, experienced and educated lady in the age of 50+.

When I arrived at the office, I found myself happily suprised with both the age of the organisation and its team. I can say that I have never come across such a young vibrant and ambitious organisation that gets things done. Many think tanks, NGO’s and other organisations out there are positively motivated but sometimes lack the persistence, expertise and connections to actually deliver. RFGI is not one of them. It gets things done and raises the bar for itself and others time and time again.

Soon I found myself doing a range of projects and activities pertaining to political and legal reforms and spreading awareness. I have had the most wonderful interactive sessions with hundreds of students and schoolchildren, and was pleasantly surprised by the immense successes our sessions had. Schools offered us to provide them with an educational programme and more visits as soon as possible.

Organizing events like the panel discussions and public debates was always a very exciting task. The December 13th event at the Ahmedabad Management Association was called ‘Is India’s legal system hampering the growth of its economy and democracy?’ was attended by many students, lawyers, press representatives and high ranking officials. The discussion sessions during all of our events were a perfect platform for different sectors of the community to interact with each other and provided the tools to collectively think of solutions to realize better governance.

The public debates we have organised were the first of their kind in Gujarat. Themes like compulsory voting laws and the event called: ‘Has the Indian constitution fulfilled its promises?’ on the eve of 60th Republic day of India attracted young people and others from different backgrounds to engage in live debate. Newspapers recognised the progressive steps we were taking, and followed our moves with great interest.

One of the most interesting projects for me was the research on Inner-party politics (IPD). When I joined the project, I realized how difficult the task would be to make an attempt at breaking through the outer shells of political parties and getting an insiders perspective. Especially for a foreigner to this great country. However, I found myself overwhelmed with input from all angles and sectors of society. Everywhere we went, people seemed eager to inform us about the theory and practice of Indian politics. Everybody realized the importance of the issue we were working on. Lawyers, students, journalists, politicians, party members and many others offered their important support and cooperation. In working on this project, I have gained an immense wealth of experience and knowledge about Indian society, politics and culture.

Now that the booklet is on its way to getting published, and my time at RFGI is coming to an end, I can look back at a wonderful time providing me with many lessons, experience and fun times. I am very grateful to Kanan, Kelly, Swar and all the other interns and volunteers who have made my time here so interesting and pleasant. I am proud to be a part of this young organisation, and to have helped shape it in a small way. And I am sure with this mindset, drive and momentum RFGI is on the way to a very bright future. GO RFGI!

- By Ramiro Gomes Monteiro
Political History and International Relations student at Utrecht University, Netherlands

The Curious Cycle of Non-Lawyers at 17[i]

Swethaa Ballakrishnen[ii]

Two years ago, mostly because I was curious if my peers thought the same way about our shared legal education, I interviewed forty odd alumni from the national law schools. My initial impetus was to make the case that these schools provided an elite education that was more or less non-quantifiable. While they granted open pathways to six figure (dollar) salaries and prestigious admission offers, I offered that the value was more in the systemic advantage of credentialism and network creation rather than in the actual education.

Primarily, the hunch was a Weberian extension of status group and control to my own circle of college friends who were now in positions of relative power in their respective careers. As part of an exclusive elite, it seemed like they determined ways (mostly by taking it for granted) to gain advantages from the systems (top recruitment offers, easily transferable job prospects) in forms that later monopolized the benefits within the same group (for e.g. when they were in positions of power, they recruited from their own/similar schools). It was clear that by drawing from the wealth of what was once friendly college ties, these graduates relied on the social capital of their networks to further enhance the value of their elite education within the same peer group[iii]. As an NALSAR’04 graduate remarked of the resourcefulness of her connections  –

“We just know (emphasis intended) each other. There is an enforced bonding that happens over five years of being isolated from the rest of the world and when we graduate, this bonding and networking carries to the next stage of law firms, Corporates, judicial clerkships, graduate schools etc. and consequently makes it easier for members of this close-knit community to break in than for outsiders.”[iv]

The value in the education, then, was not in the training, but instead, the perceived[v] difference. And successful entry into the institutional framework guaranteed benefits of credential that were measured in ways independent of quantifiable merit. And putting aside my reservations of inequality (that I will subsequently dwell on), this credentialing on the system of networks, unlike I initially envisaged, was not entirely a disadvantage.

By creating a sense of branding, these networks (and therefore, these schools), were beginning to offer their students an array of opportunity that was otherwise unnatural for an Indian law graduate. Part of this had to do with the fact that the newly global marketplace demanded more imaginative lawyering roles, but nevertheless, in some part at least, it was the validity provided by these close social ties that allowed students from these schools the option of not being traditional litigating lawyers alone. With their differentiating status, the scope of what a law student could do on graduation expanded: irrespective of whether (s)he actually did it[vi]. As one graduate commented about his choice of attending law school:

“…. I figured that even if I hated and/or was really bad at the law, I would in no way be constrained in terms of my options at the end of the course and could easily branch out into something altogether different. A very important reason was the fact that law school always left open the option to not be a lawyer (emphasis supplied)[vii]”

Thus, these schools, which initially started with an ambition to create socially relevant lawyers, had metamorphosed to an even nobler position: they had became centers of accreditation that allowed their students the luxury of chasing multiple career and educational trajectories, only one of which was to be a lawyer. And despite the popular criticism that these schools “have not served the legal system”, in my mind, without doubt, it is this luxury of transformation that remains the system’s finest achievement.

Yet, my issue with this credentialism resonates critically for other reasons of equality. This social capital and ensuing professional freedom the system provides for its products is indeed powerful, but as demanding of attention is the fact that the sorting that determines these winner-take-all beneficiaries takes place at, approximately, age seventeen!

As high school students unclear about career trajectories, these elite domestic graduates are sorted by a sponsored mobility system that favors the urban elite student with the socio-cultural (educated families knowing the advantage of a school with top opportunities, command over written and spoken English to do well in the classroom, etc) and to some extent, economic (to be able to afford and access preparatory classes to gain admission to these schools and after, to attend them) background to enter and excel in these schools. Using one example (NLSIU’05, Oxford’06):

My father told me to give the Law School entrance exam as a ‘back-up’ – in case I didn’t do too well in the Class XII Board exams. It seemed like a good idea at the time – you see, he is a wise man. I think I got my Entrance results before my Board results. I was a little surprised when I learned that I’d got in – not because I thought that I wasn’t smart enough or didn’t write a good paper or that I wasn’t serious about getting into law school – its just that I didn’t think too much about Law School after I wrote the exam. While the Board exams results were not bad, they were not great either. So I went to law school.

Thus, while it might well be the case that these national law schools have more rigorous curriculum than the other models of legal education in the country, it is unclear that this is the reason they are considered elite. By selecting high school students through a competitive examination that has a low acceptance rate, these schools pre-select an efficient cohort of highly motivated (if not also smart) students who will push themselves towards creating new opportunity not so much because of the schools, but sometimes despite the structural limitations of the systems.

This is clearly, only the first cut of an obviously larger project. Further research to locate the exact nature and impact of this sorting will be useful in deciphering the arguable unequal stratification. This could entail an enquiry with a larger sample set (my observations reflect interviews with about 45 alumni and survey data from about 80 current students at these law schools). Further, accounting for particular, perceived advantages in both this training (initial income disparity, immediate earning requirements, capacity to deal with law school debt, external credentials, access to more elite networks) and access to it (parental SEI, differential spatial distribution among successful applicants, class perception, resultant language skills), will not be out of order to push the suggested hypothesis.

But an even more effective study of the educational choices and its impacts within the system, requires a keener understanding of the profession in itself. While an attempt has been made here to suggest a possible disconnect between the actual technical and cultural / social advantages that these schools provide, a deeper dive will necessarily involve a larger study of the profession, with a focus on the creation, control and protection of the status groups (some non-national) within it.

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[i] A longer version of this paper is forthcoming in the Journal of Commonwealth Law and Legal Education (Spring 2010). Please forward comments to Swethaa@stanford.edu.

[ii] B.A., B.L.(Hons) (NALSAR), LL.M (Harvard). Currently, the author is a Sociology Ph.D Candidate at Stanford University where she studies institutional theory, elite network dynamics and stratification, mainly relating to higher education and the professions with a focus on South Asia.

[iii] In limited illustration of this peer group dynamic, of the twelve students from India who were admitted to Harvard Law School’s LL.M program in 2008 (the largest South Asian graduate student cohort at the school), only one (who had attended an undergraduate institution in India) was not a graduate of the national law school. Author data on file. February 2008.

[iv] Interestingly, this alumni joined a top law firm on graduation where almost every (if not all) first year associates who joined that year were from one of the national law schools.

[v] From interviews and observation, it seemed unclear that there was an actual difference in these schools in terms of quantifiable structure. “Did these students learn more law? Perhaps (and mostly because they had stern attendance requirements and constant evaluation). Did they have better faculty? Debatable. Were alumni from these schools better first year associates at top law firms because they were trained in a certain school or, instead, because they were selected into that school a certain way? Unclear”. Author interview on file, January 2010.

[vi] And not only did they think they could do anything – they in fact could explore more options with the safety net of this elite degree. In the course of my interviews, I spoke with alumni from these schools who, on graduation, spent time being non-lawyers. One alumni from NLSIU (’05) had spent a year taking a photography course in the South Indian hill station of Ooty and an alumni from NALSAR (’04) had spent the last three years in the Delhi theatre circuit. Yet both these graduates were applying and had been accepted into prestigious law school programs abroad (Cambridge, Columbia, respectively) and were entirely successful, because of their credential, in making the considering veering back into law when it suited them. Seen as bright intellectuals (and not necessarily, lawyers) they could perceivably do anything with their education and still be regarded as suitable for legal study / practice on their return. Author Interviews on File, February 2008.

[vii] This graduate went on to graduate with a Rhodes scholarship with, potentially, all the unbridled opportunity that he had hoped for on admittance. Author Interview on File, February 2008.

With the passing of the Gujarat Local Authorities Laws (Amendment) Bill of 2009, (herein “the bill”) the State Assembly has made voting compulsory. While there are good arguments for and against the bill, at present only some of the details have been worked out. Specifically, all eligible voters in Gujarat must cast their ballot in Municipal, Nagarpallika and Panchayat elections or be subjected to punishment. Non-voters would have 30 days to explain their absence to avoid punishment. And if voters don’t like any of the candidates they have the option of a “none of the above” vote, although it is not yet clear what would happen if “none of the above” were the most popular ballot.

While it is new to India, compulsory voting is used in many countries. In Australia voting has been legally mandatory since 1924, where non-voters must either explain their absence or pay a fine. In Peru, where voting has been compulsory since 1933, citizens must carry proof of their having voted in order to obtain certain social services provided by the state. In many more countries, voting is legally required but rarely enforced. These include Paraguay, Thailand, Egypt and Costa rica, among others.

The bill has attracted a variety of responses, but both critics and supporters are premature. While we have the text of the bill in hand, we have no idea what it will amount to in practice. In theory, the bill makes voting in state elections mandatory, but it does not spell out the consequences of not voting. At this point we do not know whether there will be a light punishment, a harsh punishment, or any punishment at all for failing to vote. The sanctions chosen by the state government will play a large role in determining whether this law bends towards unnecessary coercion, or remains a mere suggestion.

Proponents of the bill dismiss the concerns over coercion. They point out that we already accept government coercion in many instances – for example, taxes are a coercive use of state power, as are the actions of police officers. So, they argue, why should we be concerned about coercing people to elect their governments?

But the existence of some coercion does not justify any amount of coercion used for any reason. For example, requiring citizens to have voted in order to access any government service or bureaucracy is fairly extreme, and many might consider it far more coercive than is necessary to achieve higher voting turnouts. On the other hand, a fine of only a few rupees might be an acceptable amount of coercion comparable to the taxes that citizens are already coerced into paying. The question, then, is not whether any coercion is acceptable, but what level of coercion is acceptable to achieve certain goals.

Without knowing how it will be enforced, we can at best guess at the positive and negative outcomes of the bill. On the plus side, it may in fact encourage more voting. Some critics have argued that compulsory voting will be irrelevant to those who already care about politics, since they would vote in any situation, and it will be unfairly coercive to those who wish not to vote. The result, they say, is that the only increase in voter turnout will be among those who will just spoil their ballot or vote randomly.

But reality is more complex than this. Surely there are also people who do care about politics, but for whatever reason fail to vote – perhaps they were too busy, simply forgot, or are just too lazy to make the trip. A small fine might be enough of a cost to compel them to make a stronger effort to get to the polls. If this is the case, then the resulting government would, in fact, have a larger mandate since more individuals who had an opinion were able to express their preferences by electing their government.

Proponents argue that it will be easier for political parties to campaign on issues, since they will no longer have to spend funds simply trying to encourage people to vote. And because the entire population – or at least, a vast majority – are voting, the resulting government would have a stronger mandate. However both of these arguments assume that compulsory voting will actually increase voter turnout. Although in some cases this has happened – in Australia, voter turnout is often 95% – we cannot be sure that it would have the same effect in Gujarat. Especially when we still do not know how the government will be enforcing the law.

It is possible that the punishment will be far more severe than a small fine. The state assembly could opt for a scheme similar to the one used in Peru, where access to any government service would be contingent on having voted. This is not only extremely coercive, but it is also very unfair. The poorest in society are often those who depend the most on access to government services like BPL cards, free education or employment through schemes such as NREGA. For these people, failing to vote – or choosing not to vote – could have a severe negative impact on their lives. They could lose their job, lose their source of income, or have their children turned out of school. Meanwhile, the wealthy and middle classes who can survive without government assistance would be hardly inconvenienced by such a punishment. We must ask ourselves if a slightly higher voter turnout is so important as to warrant such severe and potentially unjust methods.

Many are also skeptical of how this law would be implemented. If the political establishment has a hard time getting their message out to the population today, how can they be sure they can inform the entire population of their new obligation to vote? And if a million people fail to vote in upcoming elections, does the state election commission have the capacity to apply some punishment to each and every one of them? As Jasmine Shah of the Jaagte Raho campaign notes, many electoral rolls are still filled with errors. If the government can’t even sort out who can vote, can they really sort out who must vote?

Perhaps the most worrisome thing about this bill is the precedent it sets for both voting and citizenship. Compulsory voting reshapes our view of democracy – no longer is it a right, but a duty to be involved with the political process. If we think that “voting with your feet” by avoiding the polling booth is an act of freedom of expression, then we must oppose this criminalization of non-voting. If the bill restricts access to social services, then it is reshaping our notion of citizenship. No longer is it enough to simply be a citizen of India to access the benefits promised by the constitution – you must also take part in elections.

For the state government to make a responsible decision there must be informed discussion. The population and our elected politicians must carefully weigh the benefits and harms that could result from carrying through with this plan. It is disappointing that the bill passed largely free of opposition in the State Assembly, and if punishments for non-voters are ever discussed we hope that all MLAs take a thorough look at the legislation and its potential consequences. Whether voting should be a responsibility or a right – and how such a responsibility should be enforced – is a fair topic of debate, but such decisions should not be made quickly and without public input. Perhaps we should begin by forcing our politicians to actually debate legislation before we worry about forcing citizens to elect them.

(This piece has been developed by Joshua J.M. Stark, winter 2009 intern at RFGI)