POV: FREE AND FAIR POS­SI­BLE BY PROXY?

India Today - - INSIDE - By S.Y. Qu­raishi The writer is former Chief Elec­tion Com­mis­sioner and au­thor of An Un­doc­u­mented Won­der: The Mak­ing of the Great In­dian Elec­tion

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

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