Unit 5 [For Academic Purpose only]

Voting Rights in India to Non-Resident Indians: A Legal Perspective

Human rights are the most basic, inalienable, interdependent and universally recognized
rights that are indispensable for existence and growth of any human being. These human
rights are to be enjoyed by all human beings by virtue of being human, irrespective of the
place they belong. However, certain humans who immigrate (due to manifold reasons) are
denied these fundamental human rights including the most important democratic right to
vote. Migration/immigration can never be a justification to reduce a person to a non-person.

Right to vote ensures participatory and responsible democratic government that empowers
the citizens to influence governmental decision-making, policy and safeguards their other
human rights. It is a guarantee against tyranny and oppression. Free and fair elections help to
prevent war and bloodshed by allowing for peaceful transfers of power, while derogation of
voting rights may provoke violence and civil unrest. When the government is elected by the
people and consists of their representatives, there will be more co-operation and obedience of
laws among the masses. Right to vote encourages civic consciousness as it encourages
political participation, and the citizens will thus keep checks on the government.

Internationally, right to vote and the right to public participation in government is recognised
as basic human right. The Universal Declaration of Human Rights (“UDHR”) inter alia
provides that everyone has the right to take part in the government of his country, directly or
through freely chosen representatives and the will of the people shall be the basis of the
authority of government; this will shall be expressed in periodic and genuine elections which
shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free
voting procedures. Similarly, the International Covenant on Civil and Political Rights
(“ICCPR”) inter alia provides that every citizen shall have the right and the opportunity,
without any of the distinctions and without unreasonable restrictions to take part in the
conduct of public affairs, directly or through freely chosen representatives and to vote and to
be elected at genuine periodic elections which shall be by universal and equal suffrage and
shall be held by secret ballot, guaranteeing the free expression of the will of the elector.
Similar is found in other international instruments. This right emphasizes that “no distinctions
are permitted between citizens in the enjoyment of these rights on the grounds of race, colour,
sex, language, religion, political or other opinion, national or social origin, property, birth or
other status. Nevertheless, in some countries, certain citizens are denied their voting rights as
a matter of law.

The Constitution of India guarantees fundamental rights for equal protection of law and
equality before law and no discrimination can be made between citizens living in India and
citizens living abroad merely for purpose of education, employment or otherwise as they also
have right to life and liberty. Furthermore, as per Article 326 of the Constitution of India,
read with Article 19 and 16 of the Representation of People Act, 1950 and 11A and 62 of the
Representation of People Act, 1951, provides that any person not otherwise disqualified and
has attained eighteen years of age and is ordinarily resident in a constituency, has a right to
get registered in electoral roll and vote in elections of House of the People i.e. Lok Sabha and
Legislative Assembly Elections. The said Article, permits disqualification of a voter under
the Constitution or a law on the grounds of “non-residence, unsoundness of mind, crime or
corrupt or illegal practice”.

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As per law, ‘ordinary residence’ in constituency remained a pre-condition for being
registered in the electoral roll. However, for Non-Resident Indians the election law was
relaxed in 2010 bestowing right to vote even in cases of non-residence in India but physical
presence in the constituency is necessary for casting their votes.

This theoretical right did not find practical basis as the Non-Resident Indians (NRIs) are
unable to exercise their valuable right to vote mainly due to lack of resources and time to
travel back to India. Such tacit denial of right to vote has been challenged before the court of
law. The Government is considering alternative methods of voting for NRIs such as e-postal
ballot, proxy voting etc. It is high time that the law is amended to remove legal complexities
that impede the exercise of right to vote.

II Who are Non-Resident Indian Electors?

A Non-Resident of India (NRI) is an Indian citizen who is not residing in India due to
manifold reasons. Further, for tax purposes, a NRI is an individual who is citizen of India or
Indian passport holder and lives outside India for more than total, not necessarily continuous,
182 days in a financial year is an NRI. Thus, persons posted in United Nations and its
organizations/ office or deputed abroad by the central, state governments and public sector
undertakings or on temporary assignments are also NRIs.

A Non-Resident of India or an Overseas Elector is “a person who is a citizen of India and

who has not acquired citizenship of any other country and is otherwise eligible to be
registered as a voter and who is absenting from his place of ordinary residence in India owing
to his 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.
According to the provisions of Section 20A of the Representation of People Act, 1950, an
NRI settled in foreign land can become an elector in electoral roll in India”.

Non-Resident of India is different from Overseas Citizen of India as the latter does not enjoy
any voting rights. The Overseas Citizenship of India (OCI) Scheme was introduced by
amending the Citizenship Act, 1955 in August 2005 in response to persistent demand for
“dual citizenship” though dual citizenship was not granted. The Scheme provides for
registration as Overseas Citizen of India (OCI) of all Persons of Indian Origin (PIOs) who is
of full age and capacity and is citizen of another country but were citizens of India on 26th
January, 1950 or thereafter or were eligible to become citizens of India on 26th January, 1950
except who is or had been a citizen of Pakistan, Bangladesh or such other country as the
Central Government may specify by notification in the Official Gazette. However, an
overseas citizen of India shall not be entitled to the rights conferred on a citizen of India, inter
alia under section 16 of the Representation of the People Act, 1950 (43 of 1950) in regard to
registration as a voter.

As per information compiled in May, 2012, there are approximately 10037761 NRIs across
the world, out of which 11,846 overseas citizens are enrolled in the electoral rolls of India. To
get registered one has to file an application (accompanied by duly self-attested copy of the
relevant documents like Visa etc) prescribed in Form 6A before the Electoral Registration
Officer / Assistant Electoral Registration Officer of the constituency within which the place
of ordinary residence of the applicant in India as given in his/her passport falls.

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Thus, a Non-Resident Indian Elector is absenting from his place of ordinary residence in
India and is different from Overseas Citizen of India as latter has no voting rights.

III Legal Provisions regarding right to vote of NRIs

The Constitution of India recognises right of every citizen to vote. The statutory provisions
are contained under the Representation of the People Act, 1950 and the Representation of the
People Act, 1951 and rules include the Conduct of Elections Rules, 1961 and Registration of
Electors Rules, 1960.

“…[R]ight to vote presupposes a right to be enrolled as an elector provided, of course, he has

the requisite qualifications prescribed by the Constitution and the election laws and other
statutes and has none of the disqualifications enumerated in those laws.

Section 62 of the Representation of the People Act, 1951 recognizes ‘Right to vote’ and states
that no person who is not, and except as expressly provided by this Act, every person who is,
for the time being entered in the electoral roll of any constancy shall be entitled to vote in that
constituency. As per section 19 of the Representation of the People Act, 1950, every person
who is not otherwise disqualified, is not less than eighteen years of age on the qualifying date
i.e. 1st January and is ordinarily resident in a constituency; shall be entitled to be registered in
the electoral roll for that constituency. Further he must not have been confined in prison or
convicted of corrupt practice or otherwise disqualified under section 16 of the Representation
of the People Act, 1950 by virtue of ceasing to be citizen of India; or declared by a competent
Court as of unsound mind; or for the time being disqualified from voting under the provisions
of any law relating to corrupt practices and other offences in connection with election, as the
name shall forthwith be struck off the electoral roll on disqualification unless such
disqualification is removed under any law authorizing such removal.

Furthermore, no person can be registered in more than one constituency or more than once in
any constituency and so accordingly cannot vote more than once, if he does so than all his
votes shall be null and void.

It may be noted that the “Ordinary residence” in the constituency is a pre-condition to get
enrolled as voter and thus vote. The phrase ‘ordinarily resident’ is defined in Section 20 of
the Representation of the People Act, 1950. A person is not Ordinary resident of a place
merely because he possesses a dwelling house or is saying as patient or is detained in prison
or in police custody. However, a person absenting himself temporarily from his place of
ordinary residence shall not by reason thereof cease to be ordinarily resident therein. A wife
of a person shall be deemed to be ordinary resident of place of residence of her husband.
Persons holding Office of India as declared by the President shall be deemed to be ordinary
resident of place they were ordinarily residing. The Central Government may determine and
frame rules to decide if a person is ordinary resident of a place or not at a given time.

In Election Commission of India and Anr. v. Dr. Manmohan Singh and Ors., the
Supreme Court while interpreting the word ‘ordinarily resident’ stated that “…‘ordinarily
resident’ in a constituency as mentioned in the Representation of the People Act, 1950 shall
mean a habitual resident of that place or a resident as a matter of fact in regular, normal or
usual course. It means an usual and normal resident of that place. The residence must be
permanent in character and not temporary or casual. It must be as above for a considerable
time, he must have the intention to dwell permanently. He must have a settled abode at that

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place for a considerable length of time for which a reasonable man will accept him as the
resident of that State.”

NRIs/Overseas Electors living aboard faced difficulty in establishing themselves as ‘ordinary

resident’ of place they were residing before they left India. In 2010, the Representation of the
People Act, 1950 was amended to insert section 20A for providing special provisions for
citizens of India residing outside India. The section starts with a non-obstante clause that
“Notwithstanding anything contained in this Act”, every citizen of India (a) whose name is
not included in the electoral roll; (b) who has not acquired the citizenship of any other
country; and (c) who is absenting from his place of ordinary residence in India owing to his
employment, education or otherwise outside India (whether temporarily or not), shall be
entitled to have his name registered in the electoral roll in the constituency in which his place
of residence in India as mentioned in his passport is located and the time for such registration
may be prescribed. Every person registered under this section shall, if otherwise eligible (for
example not disqualified, is eighteen years old etc) to exercise his franchise, be allowed to
vote at an election in the constituency.

Further, while correcting or including names, no amendment, transposition, deletion,

inclusion or striking off of name shall be done without proper verification in manner as
prescribed by the Electoral registration Officer.

Similarly, the Registration of Electoral Rules, 1960 was amended by the Registration of
Electoral (Amendment) Rules, 2011. It for first time defined “Overseas Elector” as citizen of
India as referred in section 20A of the Representation of the People Act, 1950 and is above
18 years of age. Place of residence shall be construed to be any mentioned in the Passport.
Notice by way of Notification in Official/ Electronic gazette for registration of names in
electoral rolls. The NRI Applicant has to file an application in prescribed Form 6A (as per
Rule 8B) along with relevant document, like copy of passport and visa, may be filed before
the Electoral Registration Officer / Assistant Electoral Registration Officer of the
constituency as mentioned in passport or can be sent through post and can also be filed
online. If personal hearing is necessary then a person in Indian Mission will be so designated
for the same. The electoral roll is also to be published in Official/Electronic gazette.

The manner and procedure of voting is by paper Ballot or Voting Machines and save as
expressly provided by this Act, no votes shall be received by proxy. Section 60 of the
Representation of the People Act, 1951 read with Rule 18 of the Conduct of Election Rules,
1961, provides that certain class of voters like armed force personnel/service voter can cast
vote by postal ballot or by proxy and persons like Government employee employed outside
India or on election duty can cast vote by postal ballot. As per recent amendment in the
Conduct of Election Rules, 1961, dated 21st October, 2016, postal ballots can be transmitted
by Returning Officer by electronic means. Along with Ballot paper (containing names of
candidates along with occupation or address in case two or more have same names), a
counterfoil containing name, ballot paper no., electoral roll detail is sent and a declaration for
attesting officer that sign was in his presence, a cover, a large cover addressed to the
returning officer and instructions for the guidance of the elector. Voting by proxy can be done
by service voter, where he can apply and nominate a proxy voter and also a substitute proxy
vote (in case main proxy voter dies or service voter wants to revoke him) and intimation of
such name is given to service voter.Further, to prevent personation of electors, a marking
with indelible ink of the thumb or any other finger of every elector at a polling station before
he votes. However, if a person acts as proxy then he may have two such marks on his hand

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one on his left forefinger (acting for himself) and left middle finger (when he gives proxy
vote).

Despite above provisions the Overseas Elector need to be physically present in his
constituency in India to cast his precious vote. The provision can be said to be in violation of
Article 14 of the Constitution of India to the extent that it implicitly treated persons on a
different footing based on economic classifications as Overseas Electors would have to travel
back to India, accordingly needs to be amended.

IV Judicial Interpretation to protect right to vote of NRIs

Democracy is said to be the basic feature of Constitution of India. “Free and fair elections
alone are guarantee of growth of a healthy democracy in the country. The “fair” denotes
equal opportunity to all people. Universal adult suffrage conferred on the citizens of India by
the Constitution has made it possible for these millions of individual voters to go to the polls
and thus participate in the governance of our country. For democracy to survive, it is essential
that the best available men should be chosen as people’s representatives for proper
governance of the country.” Accordingly, right to vote of even citizens though living outside
India must be safeguarded.

Speaking about the concept of voting, the Supreme Court in Lily Thomas v. Speaker of Lok
Sabha, has ruled that “…..Voting is a formal expression of will or opinion by the person
entitled to exercise the right on the subject or issue in question [and that] ‘right to vote means
right to exercise the right in favour of or against the motion or resolution. Such a right implies
right to remain neutral as well’.”

Further ‘Right to vote’ “includes within its ambit the right of an elector to cast his vote
without fear of reprisal, duress or coercion. Protection of elector’s identity and affording
secrecy is therefore integral to free and fair elections” Accordingly, such mode of voting need
to be devised that secrecy of NRI Voter’s vote is accorded as given to citizens residing in
India.

It may be noted that at present three combined petitions are pending in the Supreme Court of
India regarding giving teeth to the right to vote by considering various alternative modes by
which the NRIs can exercise their vote without actually being required to be physically
present in India. In Nagender Chindan & Ors. v. Union of India and ors, the petitioner
along with two other citizens of India working in United Kingdom filed the petition in
February 2013 for granting voting rights by way of postal ballot or online voting facility to
NRIs who are living outside India. In Naresh Kumar Hanchate & Ors. v. Union of India
& Anr., the petitioners are Members of Pravasi Bharat and they have also raised the same
issue and cited the example of countries like United Kingdom, Canada, etc. who provide
postal ballot for their citizens abroad. While in Dr. Shamsheer V.P. v. Union of India &
ors., the petitioner originally belonging to Kerala sought a similar direction to provide
external voting in different forms, such as voting in diplomatic Missions, postal voting, proxy
voting, electronic voting as available in various countries. During pendency of this case the
Election Commission of India informed that court they have set up a Committee to study the
various options of voting to Overseas Electors, accordingly the court directed for the report to
be placed on record. In last orders dated 12/08/2016 it was submitted before the court that the
Government of India has, in principle, accepted the Report and that necessary steps for

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making suitable amendments in the Representation of People Act are being taken by the
Government.

Note that recently, the Defense personnel vide Notification dated October 21, 2016 have been
given voting right through postal ballot that can be transmitted electronically. However, the
rights of Overseas Electors to vote without being physically present at the constituency they
are enrolled as voter is still to see light of the day.

V Alternative Methods of Voting

As discussed in part III of this paper that voting by Overseas Elector can be done by being
physically present in the country on paper ballot or electronic voting machines and however,
some other classes of voters can vote via postal ballot and proxy voting. This part would
discuss the feasibility of various alternative methods that can be effectively devised for
voting from outside India.

In this regard, a study got conducted by the Election Commission of India with regard
to various voting methods, as discussed below:

Voting facilities in diplomatic missions for overseas citizens- As per handbook of

International Institute for Democracy and Electoral Assistance (IDEA), around 50 countries
in the world provide voting facilities in diplomatic missions for overseas citizens. There are
two basic methods prevailing globally: (i) Carving out extra territorial electoral
constituencies for external voters; and (ii) External voters in normal course are assigned to a
particular constituency in home country, generally, in the constituency where external voter is
registered. Personal voting in the embassies/consulates is akin to voting in polling stations in
home constituency. However, NRIs in many countries run into lakhs and then arranging
ballot or EVMs for 543 parliamentary constituencies or 4120 assembly constituencies in the
country in a country abroad is a difficult task. Further logistical support including security
need to be available that is equally complex job. Also, certain host countries may not permit
or object to such large-scale people gathering at a certain place.

Voting on Internet- E-voting may be considered to be done at polling stations by setting up

electronic Kiosks or from anywhere by way of protected passwords on website of the
Election Commission of India. This method also has its own peculiar limitations. It is
difficult to build a software than can effectively work on all computer systems/servers
especially when heavy load is there. Further there is lack of secrecy and security in the
method as is susceptible to various computer crimes like hacking, theft, exposure to virus,
malware, spyware, information stealers that can also corrupt the computer and destroy
information. Also, similar named domain name made be made to re-direct vote to some other
site or tampering with computer source documents or phishing or spoofing may be done.
Thus, this method can be misused and rigged.

Voting through Postal Ballot Paper or E-Postal Ballot- An Elector may apply for postal
ballot or in case of service voter the Returning Officer himself provides with the Ballot paper.
The identity of the voter is to be established and as for format, officers prescribed like
magistrate must check identity of voter and attest his signatures. However, again providing
copy of the ballot may prove to be a problem and if only officers at embassy or consulate can
only attest then permission of host country or arranging logistics etc will be required. Also,

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this method is very time-consuming and susceptible to delays and in certain cases of ballot
reaching after election date vote will not be counted.

However, transmission of postal ballot electronically can also be considered. This way on
request made by elector to the Returning Officer upto six months before the dissolution or
house or on announcement of elections, on verification, online postal ballot may be available
to the voter online that is protected by a password. Here again the lacunas of using online
facilities as discussed above apply and security, secrecy and need for full proof software can
remain a concern. With use of technology, such as unique ID generated through customized
random algorithm and Water Marking, QR/Bar Code and Numbering that allow only one
print to be printed by the voter, the lacuna in system can be taken care of to an extent.

Voting through duly appointed proxy- Proxy can be appointed as done in cases of service
voters who can vote in the constituency of behalf of the Overseas Elector. The appointment
of proxy can be made any time including when the Overseas Elector was about to leave India,
the logistic support in other country and the requirement permission of host country can be
eliminated. However, a proxy may vote for someone else or electors who may not have any
trustworthy known persons in his constituency may suffer. Further as per present procedure
one proxy can vote for only one Overseas Elector as the ink mark is put on his left middle
finger. This system is not full proof either.

Thus, there is no perfect method by which an Overseas Elector can cast his/her vote as all
methods tend to have some lacunas that need to be addressed before those methods of voting
can be legally brought into force.

VI Conclusion and Suggestions

The Indian Diaspora residing abroad is entitled to basic human right that includes the most
important political right to vote, as available to other citizens living in India.
Migration/immigration cannot be considered a good ground to deny this right to vote or say
in democratic process of country that is universally recognised as fundamental to life of
human.

The Overseas Elector (OE) or Non-resident Indian (NRI) by reasons of

migration/immigration for education, employment or otherwise remains a citizen of India and
is the important drop to that can decide and shape the future of the country as government
policies can affect him and his dear ones. Right to vote is his hands strengthens the
democratic setup, instills a sense of belongingness towards the nation and creates a sense of
responsibility in him as well as the candidates contesting to be fair leader. Accordingly, the
Overseas Elector as distinguished from the Overseas Citizenship of India has right to vote
and participate in elections.

The Constitution of India as well as Statutes recognise ‘Right to vote’ of the NRI as precious
right. A person needs to be citizen of India of at least eighteen years of age, not otherwise
disqualified by law and must be ordinary resident of the constituency to be enrolled as voter.
A person can be enrolled in only one place in one constituency and has only one vote.

However, in 2010, provision was made for Overseas Elector to get enrolled and vote in India.
For exercise of his franchise he needs to be physically present in India. Practically, it meant
no right at all and defeat of the said provision as larger number of Overseas Electors/NRIs

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were unable to divest the time and have to money to travel back to India to vote.

Despite several millions of overseas citizens living aboard only a few got themselves
registered to cast their votes as due to lack of awareness and difficulty of being physically
present to cast vote. Accordingly, the doors of the Supreme Court were knocked for giving
life to right to vote by providing alternative methods of voting. The Election Commission of
India got a study conducted regarding feasibility of alternative methods of voting, which was
accepted by the Government of India and appropriate amendments were stated to be
considered. However, till date no such methods have been provided to the NRIs as yet,
though alternate methods are made available to Defense Personnel by amendment dated 21
October 2016.

Various alternative methods of voting can be by way of voting at embassy or consulate

however, difficulty of arranging ballot or EVMs for 543 parliamentary constituencies or 4120
assembly constituencies along with logistics and security and timely permission of host
country is main challenge of this method. Internet voting is quick, less expensive however,
susceptible to cyber-crimes and technology issues. Voting may be done by appointment of
proxy, however only one person can act proxy for one, also a person may not be able to find
trustworthy proxy in his constituency to vote on his behalf and proxy may vote for other
candidate than directed. However, voting by proxy does not require logistic issues and
permission of host country and proxy can be appointed at any time even when person leaves
India. Voting may be done through Postal Ballot Paper or E-Postal Ballot, for most special
class of voters this system is followed. The procedure of system is too time taking as first
request needs to be sent to Returning Officer who on verification would send postal ballot
with cover and a declaration and attestation needs to be done regarding identity of the person
and delay may lead to nullification of vote. However, electronic transfer of postal ballot with
use of effective technology that does not permit duplication can save half time.

Thus, no alternative method is foolproof that can be completely relied for voting by NRIs/OE
as there as lacunas in traditional methods of voting as well like rigging of polls, improperly
functioning voting machines etc.

It is suggested that a culmination of all methods can prove to be more effective measure
along with online-registration which is already in place. Voters may be given option of proxy
voting movement they plan to leave India and two substitute proxy voters in case main proxy
is dead or ill or unavailable or the voter wishes to change. A declaration to that effect may be
published on the Election Commission of India website or other places as to clarity of proxy
nominated. Postal ballot/E-Postal Ballot method can be used from time when six months’
time is left in elections or from time of notification. A list of persons competent to attest such
as government employer abroad, judge etc, who are available other than embassies etc may
be made available. Also use of digital signatures to retransmit ballot can also be considered.
For ensuing Online-Voting, research and development of technology needs to be encouraged.
Software needs to be devised that can permit video-recording method or biometric of giving
votes also password secured gateways with one-time passwords must be used to ensure safety
and secrecy. Voting at Indian missions/embassies/consulates or E-kiosks may also be made
available to ones who are unable to use either of above mentioned with assigning reasons this
way pressure on staff etc will be less and will be easy to take permission of the host country.
Accordingly, necessary amendments may have to be carried out in Section 60 of the
Representation of the People Act, 1951

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Further, mandatory provision for spread of awareness regarding this right to vote to NRIs/OE
must also be made so all NRIs can available any method as per their convenience.

Thus, law needs to be amended to provide multiple methods of voting including by online,
proxy or in Indian Missions abroad or postal ballot and adequate steps to safeguard the
various methods needs to be done to make the NRIs/OE’s right to vote a reality.