Election Commission of India Planning To Exclude Non Resident Indians (NRIs) Living In Gulf Countries From Electronically Transmitted Postal Ballot System (ETBPS) — Why It Would Be Bad In Law & Policy
By — Avani Bansal and Neha Bhupathiraju
On November 27, 2020 the Election Commission (hereinafter, EC) wrote to the Law Ministry that it is administratively and technically ready to implement Electronically Transmitted Postal Ballot System (ETBPS) for overseas voters i.e. NRIs who have retained their Indian citizenship despite ordinarily residing abroad. As per this scheme, EC will send ballots to NRIs electronically, so they don’t have to travel all the way to India, and they will have to return the ballots via post. The EC stated that it is ready to implement ETBPS for the next legislative assembly elections of West Bengal, Tamil Nadu, Kerala, and Puducherry. However there is something strange in EC’s proposal for electronic voting for Indian NRIs. As per media reports, the EC said that in its pilot project, it will exclude the NRIs living in Gulf Countries from using this facility of casting votes through Electronically Transmitted Postal Ballot System.
The core idea behind facilitating electronic voting for NRIs is to make it easier for them to cast their votes, as it is very onerous to expect citizens of India, residing abroad, to travel all the way to India to cast their votes. All major democracies have facilitated similar electronic voting for their citizens living abroad, to ensure that they are not practically excluded from casting their votes. But why exclude NRIs in Gulf Countries from exercising the option of electronically voting, one may wonder?
Legally speaking — is there any reasonable classification that Article 14 of the Indian Constitution for specifically excluding NRIs living in Gulf Countries, while extending this option to NRIs living elsewhere?
Before coming to this, it may be pertinent to trace brief history of the right to voting for NRIs in India. The NRIs first got to vote in India only in 2010, through the amendment in the Representation of the People Act (hereinafter, 2010 Act). Section 20A of the 2010 Act stipulated that any Indian citizen : a) whose name is not in the electoral roll b) is of Indian citizenship and c) ordinarily resides outside India owing to education, employment etc. shall be entitled to get themselves registered in the electoral roll from the same constituency mentioned in their passport. So if an NRI wished to vote for their constituency, they would have to cast their vote in person i.e. travel to India and vote upon the submission of their passport.
A petition was then filed in the Supreme Court in February 2013 by three citizens in Nagender Chindan v. Union of India to grant either e-postal or online voting rights to citizens living abroad. Another petition was filed in 2013 by Members of Pravasi Bharat praying for the same, they also cited examples of countries like Canada and the United Kingdom who provide their citizens living abroad with postal ballot facilities. In 2014 in Dr. Shamsheer V. P. v. Union of India, the petitioner asked the Supreme Court to set up a Committee to study different voting facilities for NRIs on the ground that voting rights cannot be denied to those who go abroad for education and/or employment purposes.  The Supreme Court then tagged the 2013 petitions along with Dr. Shamsheer’s petition. Upon the Supreme Court’s direction, a Committee called ‘Committee for Exploring Feasibility Of Alternative Options for Voting By Overseas electors’ was set up by the EC. Let us briefly explore the various options that were discussed by this Committee.
Committee for Exploring Feasibility Of Alternative Options for Voting By Overseas electors
The Committee had called for the opinions of six national parties, out of whom only four, namely Bharatiya Janata Party (BJP), Indian National Congress (INC), Communist Party of India (CPI), Communist Party of India (Marxist) had responded. The Committee had made recommendations after thoroughly considering the parties’ recommendations on various voting methods for NRIs.
A Summary Of The Recommendations:
Option A: Physical Vote At Embassy/High Commission/Designated Polling Station
The Committee was of the view that this is not a viable option as the numbers turning up at these designated places could amount to lakhs, even if a small number turns up, and these places may not have high logistical or organisational capability for smoothly conducting such physical voting. This may also lead to an unsupervised electoral process. In agreement with a representative of the Ministry of External Affairs, the Committee opined that holding such exercises on such a large scale will require permissions of the host country, which may be difficult to procure.
Option B: Online/Internet Voting
The Committee noted that this method, despite being technically feasible and easy, might not be a safe or secure option. The internet poses several potential hazardous risks, besides the act of voting is different from online banking or shopping. “There are many factors which affect the security of Internet voting, such as Hardware, software, system and internet security, use of proprietary or open source software and the protections on the system against insider and outsider threats”.
The Committee had listed several possible loopholes in the online voting system, including but not limited to credential/data theft, modification of ballot paper, domain redirection, spoofing attack, software bugs in the voter’s computer etc. All political parties also expressed that online voting is not a safe and secure option and will hamper free and fair election process. The Committee only recommended online voting in the long-term — when there is enough technological wherewithal to deal with the several vulnerabilities of online voting, but mentioned that currently, it is not a feasible option.
Option C: Postal Ballot
There are two variants of this method — a) Postal Ballot and b) E-Postal Ballot)
Postal Ballot — Rule 54A of the Conduction of Election Rules 1961 (hereinafter, 1961 Rules) mentions that votes received through post must be counted only 13 days after the contesting candidates are announced and no votes that are received on the day of counting shall be counted. Service voters are the only people eligible for voting through postal ballot. Political parties had expressed that there were inordinate delays in receiving the ballot papers even in the case of service voters. If extended to NRIs, this exercise would be even more cumbersome because of larger numbers. The time period of 14 days for receiving and sending back the ballot paper is not sufficient. This method would also require attestation of the ballot paper by the Embassy or Consulate official, which would require the voters to visit the officials at the Embassy or Consulate, again requiring logistical arrangements including obtaining permission from host countries.
E -Postal Ballot — In this variant, the proposal was to send the ballot to the voter electronically, which then has to be returned by the voter to India through post. This would imply that both the ballot receiving and dispatching process will be much more smoother. The Committee was in favour of this method, but recommended that this method will work effectively only if adequate technical precautions are taken. While the vulnerabilities inherent in the online method will still be applicable, it will still be relatively safer since the vote dispatch by the voter will be through post.
Since the Committee considered this method safer, secure and democratic, it listed several precautions to ensure e-postal ballot can be an effective system. For e.g. since attestation by Embassy/Consular officers is difficult, the Committee recommended self-attestation method by voters, which is also followed by other countries. To ensure that the e-postal ballot is free and fair, the Committee recommended a pilot project in a few constituencies to assess its fairness and effectiveness.
Option D: Proxy Voting
In this method, the voter would appoint an adult proxy to place their vote in their registered constituency. Currently only service professionals can cast their votes through a proxy system. The Committee is of the view that this is the most feasible option for overseas voting since this method does not entail logistical concerns like all the other methods. Except for BJP, all other political parties contended that there is no way to ensure that the proxy voter had cast the vote as per the wishes of the voter and is highly susceptible to unfair voting and malpractices. The Committee then replied this is the safest option and voters will have to appoint somebody they can ‘trust’.
The Committee was of the view that other countries often provide their overseas voters with an option to choose their method of voting and the same could be done in the case of India as well.
Pursuant to the report being submitted at the Supreme Court, the Government accepted the recommendations made by the Committee in 2017. In 2016, the 1961 Rules were amended to allow service voters to vote through e-postal ballot. It was in 2017, that the government considered an amendment to the Representation of the People Act 1951, to make voting easier for NRIs.
Subsequently on December 18, 2017 the Law Minister introduced the Representation of the People (Amendment) Bill 2017 to amend Section 60 which proposed to allow NRIs to vote either in person or ‘proxy’ and not in any other manner. The opposition parties were critical of this move to give proxy voting rights to NRIs, citing the same reasons they had in the 2014 Committee’s report — viz. that there is no guarantee of free and fair voting process, and also no way to ensure that the proxy is voting as per wishes of the NRI and that the whole process is free from malpractices. “The Voter Verified Paper Trail was being cited as a solution to the issue, but verification of vote involves a lot of procedures and is not easy either.”
The Bill was however, passed by the Lok Sabha on August 09, 2018. While the Bill was awaiting Rajya Sabha’s nod, the Bill lapsed owing to dissolution of Seventeenth Lok Sabha.
As per data with the Ministry of External Affairs there are 3.10 crore Indians living abroad, out of which 99,807 are registered in the electoral rolls and only 25,606 had voted in the 2019 Lok Sabha elections. Of the 25,606 NRIs who voted, 25,091 hailed from Kerala, mostly from the Kozhikode and Malappuram districts. Another unofficial, contradictory report says only 10,000–12,000 NRIs had cast their vote as it is an expensive affair to travel to India solely to vote.
In 2019, reports surfaced that a fresh bill may be introduced for the same but it did not actualize. Pursuant to this delay, the Supreme Court “considered a fresh compilation of orders passed till date in the six-year-old plea, which was submitted to draw the attention of the court to the delay in taking an action on the long-pending demand.” The Supreme Court then passed an Order that a legislative exercise is currently being contemplated which will address the grievances of the petitioner. (Same petitioner from the 2014 case).
Finally on November 27, 2020 the EC wrote a letter to the Law Ministry contending its confidence in implementing ETBPS for overseas voters, simply by amending the 1961 Rules, allowing NRIs to vote through e-postal ballot like the service voters. The EC proposed to implement ETBPS in the next year’s assembly elections of Kerala, Tamil Nadu, Puducherry and West Bengal.
Soon media reports started surfacing that the EC will initially only implement ETBPS for overseas voters in non-gulf countries. As per an Indian Express report, “Interestingly, the MEA expressed strong reservations over attesting the declaration that NRI voters will have to send along with their marked ballot papers. The MEA had said “diplomatic missions do not have the logistical wherewithal to handle attestation for a large number of overseas electors” and that they would have to seek the permission of the host country for organising such activity, which may be difficult in non-democratic countries.” Anurag Srivastava, spokesperson of the Ministry of External Affairs, neither denied nor confirmed the report.
General Secretary of CPI(M), Sitaram Yechurry, wrote to the EC, soon after the media reports surfaced, contending that they are shocked by the Election Commission making such a move without consulting all political parties, which has been a modus operandi till date. He called it a ‘blatant departure’ and said that the EC should immediately convene an all-party meeting. Perhaps the most interesting criticism of the e-postal ballot by CPI(M) has been that the working conditions of overseas voters are vulnerable to external influences, including their foreign employers.
So it’s important to consider, whether such a proposed move by the EC is in consonance with the practice in other countries. Let’s take a comparative look at other countries’ on this issue -
American overseas citizens can use absentee voting to cast their votes. About 3 million Americans abroad are eligible to vote, however the turnout has been historically low and the 2016 elections witnessed only 7.8% votes from Americans living abroad. The federal government formulated legislations and policies over the years to facilitate smooth overseas voting. One of the important ones is ‘The Uniformed and Overseas Citizens Absentee Voting Act.’ This legislation mandates that overseas voters register through the Federal Post Card Application, which the voter shall receive 45 days prior to election. Another Act allows voters to send their ballot electronically, either by email or fax, however most States mandate that voters must sign and return another form through post. Prior to the 2020 elections in November, the Department of Homeland Security issued an advisory to states to discourage sending ballot electronically.
In addition to poll-site and postal voting, France allowed its citizens to exercise their vote through a software called Scytl in the 2012 legislative elections, enabling abroad voter turnout of over 55%. Considered innovative and progressive at the time, France dropped online voting over cybersecurity issues. Currently, only overseas advisers and consular delegates are allowed to vote on Scytl.
Estonia’s citizens can vote from anywhere in the world using i-voting from 2005 — all that a citizen needs is a computer connected to internet. The government infact considers postal/electronic methods of voting as costly and time consuming. Despite cyberattacks in 2007, the country has strengthened its software. An independent report however confirmed cyberattacks that altered votes.
Australians’ can vote overseas either in person at Embassy/Consulate or through post, the application for postal voting can also be submitted online. Australia however treats its overseas citizens as second-class citizens, they will be eligible to vote only if they register as a voter within three years of going abroad and intend to return within five or six years. A Joint Senate Committee Report concluded that the current rules in June 2009 “form a valid method of measuring whether a continuing interest in Australian political affairs exists.”
EXCLUSION OF GULF COUNTRIES
The question remains — if the EC decides to implement the pilot ETBPS for the next assembly elections in non-gulf countries, is that constitutional? The primary argument against excluding NRIs living in Gulf countries from this scheme is that — ballot paper voting requires attestation by the embassy or consular official in the host country, and it may be difficult to organize attestation for a large number of voters in non-gulf countries. Organizing activities like the elections require permissions from the host country, allegedly difficult in non-democratic countries. The crux of this decision is on the premise that Gulf nations are non-democratic, difficult to please and require diplomatic logistics that are currently absent. The same problems were expressed in the 2014 EC Report repeatedly. Gulf Countries will include UAE, Saudi Arabia, Bahrain, Iraq, Oman, Qatar, Kuwait.
First things first. Out of 20 million overseas Indians, 10 million live in the six Gulf nations whereas the remaining 10 million live in 194 other countries. So the first concern is whether such a large number of NRIs can be excluded from the process?
Professor Irudaya Rajan from for Development Studies in Trivandrum, Kerala believes that the reason the Government feels hesitant to organise overseas voting in the Gulf nations is due to their sheer numbers, organizing elections in the Gulf nations would be an administrative challenge. On this point however, it may be helpful to see the policy of other countries. American Arabs have actively engaged in the US Elections and US policy issues for years. Apart from being possibly the second highest ethnic group at polling booths, Arab Americans in Saudi Arabia conduct activism, care about American health and economy and even foreign policy. American consulates and embassies at UAE even help Americans post their ballot for election, this is however not the case in every country in which America has a diplomatic presence. US citizens can also vote in Qatar. Similarly Canadians are also permitted to vote from UAE, but there is a limit — if a Canadian has resided abroad (not just UAE) for more than five years, they lose their right to vote. Until then, Canadians have the right to vote. There are apparently 40, 000 Canadians in the UAE. A Philippines citizen has to visit the Philippines embassy in Doha, Qatar to cast their vote. Omani citizens outside Oman can also participate in elections back home. While organizing elections for overseas Indians could be far more challenging because of the huge numbers, but is that a reason good enough to exclude a large number of NRIs living in Gulf Countries, especially when other countries have been doing it successfully for years?
Secondly, NRIs in Gulf countries reportedly feel like second-class citizens. Jagdeep Chhokar, founding member of Association for Democratic Reforms, is of the opinion that NRIs in the Gulf are migrant workers, unorganized and poor whereas the ones in the non-Gulf are relatively rich, influential and organized and “it is not difficult to guess why the EC is not thinking about them”. In 2017 alone remittances from Gulf countries amounted to $69 Billion dollars which is 53% of the total cash inflows. Mohammed Abed, who lives in Dubai, contends that the fact of the matter remains that they send the highest amount of remittances back to India, more than NRIs in any other country. Therefore for both signalling purpose and also economic factors, would it be a good policy and law to exclude the NRIs living in Gulf countries under the ETBPS scheme?
Thirdly, the exclusion of the largest set of NRIs will lead to a disproportionate effect on election results, given their sheer number, even for a pilot project. This disproportionate effect on elections is not something a democratic country like India should afford. While proxy-voting rights were being contemplated in 2017, MLA Parakkal Abdullah from Kerala, with several supermarkets and restaurants in Qatar, says that several hindrances prevent Keralites prevent them for getting registered on the electoral roll, “Voter registration is a tedious process, and the majority of Keralites in the Gulf countries cannot spend time on it…..embassy should take immediate measures to ensure their registration. Otherwise, they will be deprived of the benefits of a crucial electoral reform.” Political leaders also opined that overseas proxy voting has the potential to change the outcome in ‘five of the 140 Assembly constituencies — Nadapuram, Perambra, Kuttiadi, Palakkad and Varkala — which have fairly large non-resident populations.’ In another instance in Kerala, flying down of NRIs to Kuttiadi solely to vote caused MLA Parakkal Abdullah from the Indian Muslim League to win by a thin margin. So there is also an understandable concern that the benefit under ETBPS scheme may be denied to NRIs in Gulf countries for clear but unsaid reason — i.e. an understanding of who these proposed excluded voters are most likely to vote for.
In any case, the above statistics demonstrates that the NRIs’ voting capability does have the power to change the face of elections. Therefore, exclusion of such a large diaspora of NRIs from voting by excluding the NRIs living in Gulf countries from the ETBPS scheme goes against the very tenets of the Constitution of India. It will satisfy the intelligible differentia test (or rational classification) under Article 14 of the Indian Constitution. Dividing those who may benefit from the ETBPS scheme on the basis of Gulf Countries and Non-Gulf countries does not serve the purpose for which it is intended and instead does a disservice by treating ‘equal citizens’ unequally.
Americans, Canadians, Philippine citizens have been voting from the Gulf for all these years — so why should India exclude its voters on the pretext of inability to manage attestation of votes? India has emerged as an economic and diplomatic superpower over the years, surely it can sometime in the future, just like America and the other countries, make arrangements for Indian voters in the Gulf. Such exclusion would thus lead to a disproportionate effect on the election results (even in the pilot phase) and does not achieve the objective of securing effective and easy voting process for all NRIs. The Election Commission needs to reconsider its proposed stand before making any concrete advancement in this regard.
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