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NRIs to get voting rights : A complete analysis of the issue

What has the Supreme Court said?

The Supreme Court told the Centre that it should within eight weeks amend necessary laws to  allow NRIs to vote in Indian elections. Union government informed the Supreme Court that it has accepted Election Commission’s recommendation to allow NRIs to vote from overseas through e-postal ballots or proxy voting.

How did the situation arise ?

Several NRIs had petitioned the apex court citing examples from multiple countries that allow their citizens living overseas to vote in domestic elections. SC asked EC to examine the issue. The poll panel set up a group of experts that proposed four options:

  • Electronic voting, over email
  • Proxy voting- someone they authorize votes on their behalf
  • Physical ballot boxes at Indian missions overseas
  • Asking NRIs to return home to vote

What did the EC recommend ?

Election Commission panel recommended to allow voting for the NRIs through proxy and e-postal ballot. The panel contemplated that e-postal ballot system has almost no risk of manipulation, rigging or violation of secrecy. E-postal ballots would be sent electronically to the NRIs by the concerned district election officer but would have to be posted back as a hard copy. Proxy voting facility would be a convenient, efficacious and doable method of providing voting facility to overseas electors. Since the appointment of proxy can be made at any point of time, the issue of time constraint, the logistical issues of embassy and the related issue of host country permission is eliminated in this system. The panel though ruled out the possibility of allowing NRIs to vote through the Internet or at diplomatic missions abroad for the time being. Internet voting is prone to technical vulnerabilities which might not be addressable currently.

Who will benefit?

All Indian passport holders physically not in India at the time their municipality, state or India goes to polls. NRIs do not include members of the Indian diaspora who though of Indian origin are now foreign citizens. NRIs are not Persons of Indian Origin (PIO). Be wary of this difference.

What about PIO/OCI card holders then? Can they vote ? NO

Government is merging PIO – OCI cards schemes. That means PIO-OCI card holders cannot vote. The PIO-OCI cards are not issued to Indian citizens. But the extension of voting rights to NRIs will likely lead to a chorus from India’s influential diaspora for similar rights.

What does the law say right now ?

  • According to the provisions of the Representation of People Act, 1950, a person who is a citizen of India and who has not acquired the citizenship of any other country and is otherwise eligible to be registered as a voter and who is absent from his place of ordinary residence in India owing to employment, education or otherwise, is eligible to be registered as a voter in the constituency in which his place of residence in India, as mentioned in his passport, is located.
  • However the person will be able to exercise the franchise only if he or she is physically present in their constituency on the polling day at the polling station along with the original passport. This caveat of physically present is problematic and impractical. A petition was filed in the Supreme Court that Section 20A of the RP Act be amended to allow NRIs to vote from abroad without having to be present in India. The petition argued that the provision was in violation of Article 14 of the Constitution to the extent that it implicitly treated persons on a different footing based on economic classifications.

Which Law has to amended ?

Representation of People Act , 1950 has to be amended to allow Indian nationals not in Indian territory to vote.

The Election Commission will test NRI voting in two constituencies in an Assembly election. Once convinced it can implement the policy nationally, the poll panel will introduce voting for NRIs across the country.

Analysis of this decision

  • The government’s decision to allow NRIs to vote could set the stage for expatriates to emerge as a decisive force in the country’s electoral politics. The fact that 114 countries conduct such voting makes it all the more incumbent on India, the largest democracy,  to enable a larger and more inclusive electorate.
  • This decision also, historically, removes an “unreasonable restriction” posed by Section 20(A) of the Representation of the People (Amendment) Act of 2010, requiring overseas electors to be physically present in their constituencies to cast their votes.
  • There are 10 million Indian citizens staying abroad, and with 543 Lok Sabha constituencies, this means an astonishing average of 18,000 votes per constituency may get polled from abroad. These additional votes, if polled, will obviously play a crucial role in state and general elections.
  • The traditional argument against such external voting has been that only citizens who are present in the territory and affected by the consequences of their vote should be entitled to vote. NRIs as per them lack knowledge of domestic conditions. They would be irresponsible in exercising their choices. But, today with an increase in cross-border migrations, the concept of nationhood and political membership is increasingly being decoupled from territorial locations. India’s move towards enabling voting from overseas is an instance of a larger global trend towards increased citizen participation.
  • The fear that the demographics of some constituencies could change may be slightly exaggerated. Although it is a fact that some indirect influences could have an effect on elections as an NRI voter base could potentially be an influential segment capable of affecting media reporting and analysis at election time. This could, in turn, have a bearing on the thought processes of the electorate .
  • There is a concern that it can never be guaranteed that the proxy voter will vote as per the wishes of the actual voter. The method of proxy voting suffers from an inherent problem of trust deficiency and violates the principle of secrecy of voting. EC is of the opinion that proxy voting system is the most simple and viable option. It is expected that a person will appoint a proxy only when there is trust in the proxy. Voting from abroad is also fraught with other practical challenges like confirming NRI voters before every election and ensuring their post is received on time.
  • EC planned to launch the Electronic Roll Management System (ERMS) coinciding with the National Voters’ Day on January 25.
    ERMS will enable internet users across the country to view the complete voters’ list and allow them to see details such as the constituency in which they are registered and the polling station where they must vote. This move will prove to be helpful when NRIs get to vote. EC must strive to improve quality, transparency and speed through the use of digital technology and internet in election management.

What is the postal ballot and who avails it right now?

To enable all to be a part of electoral process, those who due to work commitments for the state basically are unable to vote in their constituency can avail postal ballot facility. Postal voting describes the method of voting in an election whereby ballot papers are distributed or returned by post.

Section 20(8) (d) of the Representation of the People Act, 1950 along with Section 60(b) of the Representation of the People Act, 1951, allows government servants and certain other class of persons to vote via postal ballot following the Election Commission’s consent.

Postal ballot facility is availed by :

a) service voters – members of armed forces , diplomats
(b) special voters
(c) the wives of persons referred to in clauses (a) and (b) above, who are originally residence with them,
(d) electors subjected to preventive detention
(e) voters on election duty
(f) Notified voters

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