POV: FREE AND FAIR POSSIBLE BY PROXY?
India has nearly 10 million citizens living overseas mostly for reasons of employment and education. Almost 6 million of them are over 18 years—the voting age. Many of them had been clamouring for voting rights, and the present government approved changes in electoral laws on August 2 that will make it possible.
In 2010, then prime minister Manmohan Singh, conceding the demand, announced at the 8th Pravasi Bharatiya Divas that they would be able to vote from the following year. This right, however, was restricted by two conditions—registering only at the permanent address of the passport holder and being physically present to vote.
After three years, as of January 1, 2014, only 11,846 overseas Indians had enrolled, the overwhelming proportion of this coming from Kerala—11,488 compared with only 398 from the rest of India. That raises a question: was the demand for NRI voting exaggerated? Or was something else a deterrent? Probably the requirement of physical presence in the home constituency.
Hearing a public interest litigation in 2013, the Supreme Court asked the Election Commission to set up a committee to examine the possibility. The committee looked at systems for distance voting worldwide and shortlisted four—voting in embassies, online voting, e-postal ballot and proxy voting. It discussed the issue with political parties. While the BJP supported the proposal, almost all other parties opposed it, mainly citing as reasons that the secrecy of voting may be compromised and lack of trust in proxies, both impinging on the conduct of free and fair elections.
The committee made two recommendations: e-postal ballot, where blank postal ballot paper is transferred electronically to NRI and returned by post, and voting through proxy appointed by the overseas elector.
Importantly, the committee suggested “validation of the process and pilot implementation in one or two constituencies in elections to the legislative assemblies, scaling up to more assembly elections and finally parliamentary Elections if found feasible, practicable and meeting the objectives of free and fair elections”.
Here it is important to remember the inviolability of free and fair elections, as repeatedly asserted by the SC. To quote just a few: “Democracy cannot survive without free and fair elections” (Union vs ADR 2003); “It needs little argument to hold that the heart of the parliamentary system is free and fair election” (Mohinder Singh Gill vs CEC, 1977); and “Free and fair election is the basic structure of the Constitution” (PUCL vs Union, 2013).
The challenges to free and fair elections would be: the impossibility of regulating bribery, intimidation and inducement in the campaign. The EC, which is very rigorous in enforcing legal provisions and the model code of conduct in India, will have no control over campaign malpractices abroad. How can we have two laws and standards, one for voters at home and another for those living abroad? Can there be blatant discrimination between migrants within the country and those living abroad? While the right to equality and freedom against discrimination are fundamental rights, the right to vote is not; it’s just a statutory right. Repeated judgments of the apex court have refused to recognise it as a fundamental right.
Now that the government has opted for proxy voting, we have to convince the nation that it will not lead to buying and selling of votes, which is so rampant. If at all, it should be restricted only to blood relatives. In fact, the debate goes beyond proxies to the wider issue of overseas voting in general. The arguments for and against are equally strong. The implementation of universal suffrage certainly supports the case. However, issues of residency (the right of the citizens living outside the country to influence the composition of representative organs of state, whose decisions are binding only on the citizens living within the state territory), transparency of the election process abroad and tricky dispute resolution of external voting.
It is important to give EC the freedom to try out its new formulation of e-postal ballot and proxy voting on a pilot basis, as done for every landmark reform, including the introduction of EVMs. The Indian electoral system is too sacrosanct to be tinkered with lightly.
One danger with proxy voting is the impossibility of regulating bribery, intimidation and inducement