Why Allowing Proxy Voting for NRIs May Not Serve the Right Purpose

Besides logistical issues, allowing proxy voting for NRIs violates the principles of ‘secrecy of voting’ and ‘free and fair elections’.

A large number of Indian citizens live abroad while studying, working or for other reasons. Until recently, these non-resident Indians (NRIs) were not registered to vote here due to the law, which required only an “ordinarily resident” citizen within the territorial limits of a constituency is eligible to be registered as a voter. On August 3, the government approved changes in electoral laws allowing NRIs to cast their vote for assembly and Lok Sabha elections from overseas through a proxy, with one caveat – the proxy could be appointed for only one poll. Until now only armed forces personnel were allowed to appoint proxies – they could appoint any adult living in the constituency as permanent proxies for all polls. Approximately one crore Indians are settled abroad, of whom about 60 lakhs are adults and are eligible to vote.

The idea of NRI voting goes back to 2013, when a sizeable group of Indians launched an initiative called the Bharatiya Pravasi Diwas. When their demand snowballed, then Prime Minister Manmohan Singh, in his address to the 8th Bharatiya Pravasi Diwas in 2010, said that NRIs would be able to vote from the following year.

His announcement came out of the blue for the Election Commission (EC). Operational difficulties had neither been studied nor discussed. Just the thought of registering millions of voters and making arrangements for them to vote in the embassies and consulates was unnerving – not just for us at the EC but for the external affairs ministry as well.

To implement this promise, the Representation of the People Act 1950 was amended and came into effect on February 10, 2011, with a new section, Section 20A. This section made special provisions for every citizen of India residing outside the country to enrol themselves an electors, provided they had not acquired the citizenship of any other country and were otherwise eligible to be registered as a voter.

With great trepidation, the EC took up the challenge.

Elections to Kerala, Tamil Nadu and three other states were due within a month at that time. Only NRIs from Kerala registered – about 8500 people – and half of them turned up to vote as well. One NRI even contested the poll. The response in the other states, however, was less than desirable.

Proxy voting

The issue of proxy voting for NRIs came up in a public interest litigation in the Supreme Court in 2014. The Supreme Court asked the EC to initiate a committee to examine the proposal, following which the Committee for Exploring Feasibility of Alternative Options for Voting by Overseas Electors was set up. The EC looked at existing systems across the world and shortlisted four possible ones: voting in embassies, online voting, postal or e-postal ballot and proxy voting.

The EC then discussed the issue with all political parties. Based on the committee report, the BJP was of the view that voting through proxy could be considered as there would be no logistical problem involved. The BSP, the Communist Party of India and the Congress were not in favour of proxy voting as they said it could never be guaranteed that the proxy voter would vote as per the wishes of the actual voter. They also said that proxy voting suffered from the inherent problem of ‘trust deficiency’ and violated the principles of ‘secrecy of voting’ and ‘free and fair elections’.

The committee observed that the proxy voting facility would be a “convenient, efficacious and doable method” of providing voting facility to overseas electors. Since the appointment of the proxy can be made at any point of time, the issue of time constraint, the logistical issues of voting in the embassies and the related issue of seeking the host country’s permission were completely eliminated. The load on the returning officer and the election machinery would also be considerably less.

The committee ruled out the first two possibilities – voting in embassies and online voting – for logistical and technical reasons and zeroed in on the last two – postal ballots and proxy voting. The committee conclude that providing the proxy voting facility was operationally the most simple and viable option for facilitating voting by overseas electors. Regarding the issue of trust in the proxy raised by political parties, it is important to note that this issue is also applicable in the case of service voters who appoint proxies. It is expected that a person will appoint a proxy only when there is trust in the proxy.

The Supreme Court then asked the government to examine the proposals of the committee. On August 3, the government approved changes to the law to allow NRIs to vote through proxies.

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Also read: Modi Government’s Decision to Allow Proxy Voting by NRIs May Kick Up a Hornet’s Nest

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The committee had recommended that proxy voting facility be considered as an option to be provided to overseas electors under the following conditions:

(i) One person can act as the proxy for only one overseas elector.

(ii) Only a person already enrolled in the same constituency in which the overseas elector is enrolled can be appointed as proxy for overseas elector.

(iii) The appointment of a proxy shall be valid till the time it is revoked by the elector who can then make a fresh appointment of proxy.

The government, however, modified the proposal to proxy for one election only.

Arguments against proxy voting

However, many have raised arguments against allowing NRIs to vote through proxies.

The basic argument in favour is that citizens have a democratic right to choose their legislators, wherever in the world they are. But those against the initiative argue that a provision of proxy threatens the very core of democracy. Eminent German political scientists Dieter Nohlen and Florian Grotz argue that “the notion of external voting … goes against one of the classic requirements… namely the residency inside the state territory. Furthermore the implementation of external voting poses heavy technical administrative problems that might interfere with other crucial features of universal franchise, mainly the principle of free elections.”

The arguments against even the broader issue of voting rights for citizens abroad are numerous and strong.

1. The fundamental right to equality is the prime argument. How can we give special privilege of distance voting to some people who have migrated abroad when there are many times more domestic migrants who also seek to have a voting right at their homes? It is patently discriminatory. If a person from Bihar moves to Delhi or Mumbai in search of a job or education, he loses his right to chose his legislator in his village but if he goes to London, he will be entitled to special privilege. Remember that right to vote is not a fundamental right whereas right to equality is.
2. There are strict regulations including the model code for campaigning. Bribery and inducements of voters are strictly kept in check. These are impossible to implement abroad.
3. There can be no guarantee of NRI voters exercising their vote in a free and fair manner as there can be no check on coercion or inducements by the employers and supervisors. Remember, a majority of foreign migrants are poor workers often at the mercy of their employers who even take their passports into custody.
4. There is no guarantee that votes would not be sold to the so called proxy. Nor is it certain that the proxy will vote as per the wishes of the main voter. Secrecy of vote of course goes out of the window.

The committee even recommended a safer alternative of e-postal ballots (sending ballots by email and receiving it back by post). It had also recommended first doing a pilot study and extending it only “if found feasible, practicable and meeting the objectives of free and fair and elections.” Remember a free and fair election is non negotiable and is the basic structure of the constitution as repeatedly asserted by the Supreme Court.

Asserting the right to free and fair elections

Some of the Supreme Court judgements to assert for free and fair elections:

1. Union vs ADR 2003, where the court said, “Democracy cannot survive without free and fair elections.”
2. Mohinder Singh Gill vs Chief Election Commissioner of India, 1977, where the court said, “It needs little argument to hold that the heart of the parliamentary system is free and fair election.”
3. SC 2013 PUCL vs Union (NOTA), where the court said, “Free and fair election is the basic structure of the constitution.” 

It is also important to remember that many election commission officials, including former chief election commissioners T.S. Krishnamurthi and N. Gopalaswamy, have raised doubts about proxy voting.

Krishnamurthi made the following points:

1. Blanket provision for proxy voting is “not desirable”. It should be tried out “on a limited scale to see what is the fallout.”
2. Better to first try very selectively for persons with disabilities and the ailing.
3. It will alter the voting patterns in states with large NRI population.

Gopalaswamy is even stronger in his observations:

1. NRI voting is “something which is uncalled for”. Why not for migrants who have to return to villages losing wages?
2. “It’s a beehive which will sting you.”
3. There seems to be a greater emphasis on NRIs instead of improving voting facilities for soldiers.

I strongly endorse these views. Besides, the arguments of the EC-appointed committee about the inconvenience and workload of returning officers in handling e-postal ballots is not acceptable. A few hundred extra postal ballots will not make them collapse under the weight of the work.

The EC has always treaded with caution. Every reform was first tested in a small territory before scaling it up. Reckless adventurism in as sensitive a matter as elections is fraught with serious consequences.

The matter will now come up in parliament. I hope the parliament will consider this matter by long term national interest instead of possible short term political gains.

S.Y. Quraishi is the former Chief Election Commissioner of India and the author of An Undocumented Wonder – The Making of the Great Indian Election. He is a Distinguished Fellow at Ashoka University.