The Madras High Court on Friday, March 22, 2024, said that though voting is a duty cast upon the electorate, no one could compel a person to vote if he/she chose not to exercise such a valuable right despite availing of a paid holiday on polling day under Section 135B of the Representation of the People Act, 1951.
The observations were made during the hearing of a public interest litigation which sought a direction to the Central and State government as well as the Election Commission of India to ensure that employers grant a paid holiday on the day of polling only if employees submitted proof of having exercised their franchise.
When the first Division Bench of Chief Justice Sanjay V. Gangapurwala and Justice D. Bharatha Chakravarthy asked the petitioner’s lawyer, what if an employee was willing to work on polling day instead of voting but he could not do so because of the establishment remaining shut, the counsel had no answer.
“How can one compel a person to vote?” the Chief Justice asked after stating that Section 135B’s intention was only to ensure that a voter’s employment does not stand in his/her way of casting a vote on polling day. The Bench disposed of the PIL petition after recording their observations.
In his affidavit, the litigant B. Ramkumar Adityan, an advocate based in Thoothukudi district, said Section 135B was inserted in the Representation of the People Act, 1951 through an amendment in 1996 to ensure that every employee gets a paid holiday on the day of polling.
The Section also prescribed punishment to employers who do not offer such a paid holiday and exempted them from granting a paid holiday only in select circumstances. In accordance with the requirement, the Election Commission of India had framed certain guidelines.
Though the law prescribes a penalty if employers do not offer a paid holiday, there was no mechanism to ensure that the employees had indeed exercised their franchisee on poll day without misusing the paid holiday for recreational or other purposes, the petitioner said.
He claimed to have made a representation in this regard to the Election Commission of India as early as on March 26, 2021 and also on February 20, 2024 but lamented that there was no fruitful action taken so far with regard to submission of proof of voting for to claim the paid holiday.
The petitioner also stated that though the ECI had taken up several measures such as Systematic Voters Education and Electoral Participation (SVEEP) programme, voter participation in most constituencies was less than 65%, which was a matter of grave concern in a democracy.
In such circumstances, the statutory right to get a paid holiday on the day of polling should also not be misused by those who choose to do everything but vote even after getting the benefit, the petitioner said.
