Wednesday, April 15, 2009

Voting Rights for Indians Living Abroad

Since many of our readers are Indians living abroad I thought there would be interest in Abhinav Chandrachud's op-ed in today's Hindu, "Overseas Citizens: A Horse with No Name", in which he calls for giving voting rights to Indians residing in foreign countries. As he points out, government officers are entitled to vote while living abroad, but not those Indians who are otherwise working or studying outside India.

I noticed this election cycle there seems to be a new group of younger candidates that have spent time studying outside the country, returned and made a name for themselves, and are now running for political office. With so many talented Indians working and studying abroad right now giving them the right to vote may help entice them to stay politically active and think of themselves as invested in their country's future in a different way. This could pay large dividends down the road even if just on the margins.

Does anyone out there have a good understanding of the constitutionality of not allowing Indians living outside the country to vote, especially if government officials outside the country can vote? This is not my area, but I'd like to hear others who do know more speak to whether they think there is any sort of legal case here.

15 comments:

tarunabh said...

the problem, as abhinav rightly points out, is the SC judgment which says that the right to vote is a statutory rather than a fundamental right!! how ridiculous. well, perhaps not fundamental, but not all rights in the constitution are mentioned in Part III. the right to property is a constitutional right, without being a fundamental right. surely, the provision requiring direct elections can be read to mean a constitutional right to vote? the only difference between a fundamental right and any other constitutional right is that article 32 is only available for the former. but this does not rule out the availability of other procedures, like art 226.

tarunabh said...

of course, since officers abroad have the vote, even fundamental rights (article 14) are attracted.

Winnowed said...

I think it is mainly a question of logistics and expense. There are millions of Indians living overseas. The ballot paper or electronic list of candidates for each NRI voter will depend on which Indian constituency the NRI voter belongs to. Organising all that will be a very expensive exercise. Further, the percentage of overseas Indians when compared to the voting population of India is very small. NRI votes are unlikely to swing elections in India. Another possible reason is that the BJP is much stronger among NRIs than the Congress. For this reason, Congress led governments have not been too enthusiastic about this idea.

Nick Robinson said...

South Africans abroad who were registered to vote did so today (ironically enough)(http://www.mg.co.za/article/2009-04-15-south-africans-line-up-in-london-to-make-their-mark) because of a Constitutional Court decision in March of this year - you can find it here that ruled it was unconstitutional to bar registered voters from voting because they lived abroad (http://www.constitutionalcourt.org.za/site/Richter.htm). Perhaps, this would be good inspiration to look to if the Supreme Court reconsiders the issue.

arun said...

This idea is far fetched and too ambitious. This surely invloves resources which would be better spent on ensuring every Indian within India has his/her name on the voting list and does not face any hassle in voting.
Its not that Indians living abroad are not entitled to vote. Its just that government is providing another 'perk' to its employees. Certainly, government official need to feel invested more in the country than other Indians.
Even within India, large number of professionals are unable to vote, being away from home. Many of them try to make up for it by trying to spread political awareness and prompting others to vote who otherwise would not.

Shiv said...

Here are some details on the RPA-1950 clauses: Section 19 allows a person to register to vote if he/she is above 18 years of age and is an ‘ordinary resident’ of the residing constituency i.e. living at the current address for 6 months or longer. Section 20 of the above Act disqualifies a non-resident Indian (NRI) from getting his/her name registered in the electoral rolls. Consequently, it also prevents an NRI from casting his/her vote in elections to the Parliament and to the State Legislatures.

We took up this issue and formulated a petition for absentee voting rights: http://www.petitiononline.com/abvindia/
We have also hosted a web page http://www.voterswithoutborders.org/
to post details and updates. Support for petition from thousands of Indian students and working professionals abroad would help us moving this forward and eventually file a PIL in supreme court.

K.V.DHANANJAY said...

The Right to Vote, as often proclaimed by Courts, is a statutory right only and may be varied by statute. A Citizen of India is eligible to vote provided he complies with the applicable statute.

Therefore, Citizens who reside outside India are, by the Statute, forbidden from voting either to the State Legislature or to the Parliament.

This is reasonable indeed. If Indian Citizens living outside India wish to vote, they could challenge the constitutionality of the offending provisions of the Statute. As of today, nobody seems to have done that yet.

One good ground could be the unequal treatment between Government agents and non-Government agents.

It is possible to argue that the exclusion of citizens residing abroad is opposed to public policy and that such exclusion is founded on insidious considerations and that the burden involved in removing the exclusion is relatively insignificant in view of the fact that computerisation of records and digitisation have become the dominant mode of preserving voter information.

Also, it is possible to argue that several laws, like the Income Tax Act have extra territorial operation and it has always been recognised, historically, that imposition of taxes without representation constitutes a grave wrong.

So, that Non-Resident Indians are anyway subject to taxes and several other laws made by the Parliament or one of more State Legislatures, they could prevail upon such constitutionality claims without much difficulty if only they make an earnest attempt first.

Alok said...

There are two things here:

1. Resident Indians who are not resident in India at the time of elections, such as students studying a course abroad. Such persons are entitled to vote as per S.18 in the constituency in which they are registered.

Of course some will not be able to fly back to India to vote. However, like every other citizen it is still upto them to vote in the elections. There are immense logistical difficulties in getting such persons to vote outside India given the huge number of constituencies in India, and the real possibility of voter fraud.

It is a different matter from getting a few hundred, or a thousand votes from government employees abroad to hundreds of thousands of votes spread over all constituencies at the time of each election. It can be done, but the infrastructure will take a lot of time to put in.

2. In the context of non-resident Indians or PIOs, that is those who cannot be registered as voters in India, I don't see what argument can be used to demand voting rights for them.
The "taxation without representation" argument is too flimsy as Income Tax is not charged on non-residents (except in a few cases), and if that argument were to be extended anyone who paid taxes at any point of time to the Indian government would be able to claim voting rights, which is absurd.

K.V.DHANANJAY said...

The Income Tax law does not tax Non-Residents? Many Non-Residents would salivate to even hear of such a ‘prospect’!

Severe logistics problem? Ever heard of DHL or UPS?

Voter Fraud? Really? Has Voter Fraud ever been a good ground to exclude Citizens from participation in the democratic process? Saudi Arabia and North Korea think so. Is it even relevant at all here?

‘Taxation Without Representation’ is a flimsy argument? It indeed is the foundational principle of ‘Constitutional Jurisprudence’. Heard of Article 265 of our Constitution? Probed it in depth?

Are we discussing here on ‘how to get just about anybody to vote’? Because, such a discussion is not one that should engage the attention of intelligent men. The discussion here is about, ‘What should a Citizen, excluded from participation in the democratic process, do’?

What he should be doing is to identify how he has been excluded. In case of our country, he has been so excluded by the prescription of a ‘residence requirement’ for a ‘certain duration’. He must move a Constitutional Court, a High Court under Article 226 or the Supreme Court under Article 32, to claim that, his exclusion from the voting process is not matched by a corresponding immunity from laws made by the very Parliament or the Legislature to choose whom, he has been unjustly and unreasonably deprived from. That is, as much as a Citizen is deprived from an opportunity to vote on the ground that he does not meet the residence requirement, he enjoys no immunity from the operation of some laws issued by excluding him.

And a ‘Republican’ and a ‘Democratic’ form of Government entitles him to seek participation (to vote), should he be subject to the very laws in the making of which, he is excluded on the basis of an unreasonable ‘residence requirement’ that cannot be shown:

a) to confer any legitimate ‘qualification’ in people complying with it and

b) to deprive such legitimate ‘qualification’ in people not so complying.

I fail to understand that, more than 50 years after the RPA, this Country has not witnessed a constitutional challenge yet to provisions that exclude Citizens from voting by prescribing a ‘narrow residence requirement’.

However, I am not very surprised considering the pattern of abuses the people of this country have tolerated by their reluctance to move their Constitutional courts.

Of all arguments that a citizen can make in reclaiming his right to vote, the ‘taxation without representation’ argument stands at the forefront. To remove it from there to serve a premise - ‘how can just about anybody get to vote’ is, as rightly expressed, very ‘flimsy’ because the premise itself is no less ‘flimsy’.

Should a Constitutional Court strike down the offending provisions, the Government then would invite qualifying Non Residents to register within a specified time. Upon ‘Registration’ they would be allotted an Identity Card or some other ‘information’ that would be elicited during the conduct of elections. During elections, postal votes are cast, counted upon and added to domestic votes to arrive at the result. Revolutionary? Hardly.

An American Citizen is eligible to vote from outside his country and the most potent basis of this right happens to be his liability to pay taxes on his income derived in any part of the world. Nobody should be suggesting that an Indian Citizen in a similar situation is not afforded an equivalent remedy. Besides, our Constitution goes farther than the American Constitution in matters of ‘Representation’. We gave ourselves a ‘Republican’ and a ‘Democratic’ form of Government. We wrote Article 265. We are due now to strike down the offending provisions of the Statute Law on voting.

Suresh said...

Just curious, can't a person who is still on the electoral rolls but living abroad always go back and vote? True, this may be very costly but then the decision to live abroad is a voluntary one unless one is sent abroad by the Government of India itself.

Does the constitution really oblige the government to open voting counters in all countries? If the constitution does oblige that, then why not go further and have counters within the country (say in each state capital) to enable voting by those registered to vote in one place but living temporarily in a different place within the country? What's the difference? As we all know, geographical distances can be substantial within India.

Two further points. First, India does not have diplomatic missions in all countries. So what happens to an Indian citizen living in a country where there is no Indian diplomatic mission? Should the government make arrangements to enable such people to vote within the country where they reside?

Second, there is still a substantial population which lives a nomadic existence within India - according to Wikipedia, they are around 7% of our population! I would not be surprised if a large fraction of this population is unable to exercise its voting rights simply because they have no fixed address. Or even if they are registered, unable to exercise their franchise because they are away from the place where they are registered. Before worrying about "NRI nomads", shouldn't we first sort the problem of "resident nomads"?

Coming to the US case, I note that while the US does make arrangements for its overseas citizens to vote in presidential elections, there is no such universal provision in state elections. Some states have provisions to allow state residents living outside the state to vote but not others. If the right to vote via postal ballots is a "fundamental right" then does it apply to just national elections? How about state elections? Or local elections? Are bye-elections covered? Clarifications appreciated.

Interestingly, I found this editorial in the Israeli newspaper Ha'aretz opposing a proposed legislation to allow overseas Israelis to vote:

http://www.haaretz.com/hasen/spages/1071950.html

Of course, India is no Israel or vice versa but I am just pointing to this editorial because I am not convinced that having the right to vote while resident abroad is a "fundamental right."

V.Venkatesan said...

Dear Suresh,
The migrant voter within India has the option to register himself as a voter where he has migrated, before the elections (one month before the polling date) whereas the voter who migrated abroad has no such option.

Suresh said...

Dear Venkatesan,

Point taken. However, our country is diverse and so a vote is not "transferable" precisely. To take a simple example, if I was studying in Chennai, I might still want to vote in Manipur (say). The fact that I can vote in Chennai may not mean that much. We just can't wish away our diversity.
Hence, I think that if the country is going to take the additional trouble of making arrangements to allow NRIs to vote in their home constituencies, then it should do the same for the internal migrants also.

tarunabh said...

this interesting article makes a political theory (rather than constitutional) claim against extending the right to vote to NRIs.

arun said...

There are so many laws in India that are just there without any practical enforcement.The residency requirement is one such. A friend recently told about a domestic help from Bangladesh living in Delhi who recently became a 'citizen' by virtue of getting a vote and was travelling all the way to West Bengal to partake of her new found citizenship by exercising her democratic right.
By the way, did Manmohan Singh violate the residency requirement by voting in Assam. Does the residency requirement apply to India or the constituency?

Samer said...

The Telegraph article was interesting and balanced, but there is a serious legal drawback with the local representation analysis. First, by casting your vote in Chennai, you aren't thereby precluded from moving to Delhi the next day for the next five years. In that sense Second, a person temporarily resident in Assam is not precluded from flying down to Chennai a day before the election, voting for his candidate, and flying back to Assam. The current legal framework doesn't support the 'local residence' framework proposed. Third, [and this is just an incidental point evidencing discounting of 'local representation' emphasis in Indian legal set up] correct me if I'm wrong but the Supreme Court held in 2006 that members of Parliament (or is it only the Rajya Sabha?) need not be resident in the constituency from which they are elected.