The story so far: On November 27, the Election Commission of India (ECI) wrote to the Law Ministry, proposing to extend the facility of postal ballots to (eligible) overseas, non-resident Indians (NRIs) for the Assembly elections in Assam, Kerala, Puducherry, Tamil Nadu and West Bengal in 2021. The ECI proposed amending the Conduct of Election Rules, 1961, in order to allow this facility. The postal ballots will be sent to NRIs electronically and they will send these ballots after choosing their candidate via post. This partially electronic facility is now available for service voters (being a member of the armed Forces of the Union; or a member of a force to which provisions of the Army Act, 1950 (46 of 1950), have been made applicable whether with or without modification; a member of an Armed Police Force of a State, and serving outside that State; or a person who is employed under the Government of India, in a post outside India).and is being sought to be extended to overseas NRI voters. The Law Ministry is yet to respond to the proposal.
How can overseas voters currently vote in Indian elections?
Prior to 2010, an Indian citizen who is an eligible voter and was residing abroad for more than six months owing to employment, education or otherwise, would not have been able to vote in elections. This was because the NRI’s name was deleted from electoral rolls if he or she stayed outside the country for more than six months at a stretch.
After the passing of the Representation of the People (Amendment) Act, 2010, eligible NRIs who had stayed abroad beyond six months have been enabled to vote, but only in person at the polling station where they have been enrolled as an overseas elector.
Just as any resident Indian citizen above the age of 18 years (having attained it on the first day of January of the year of revision of electoral rolls for the State) is eligible to vote in the constituency where she/he is a resident, overseas Indian citizens are also eligible to do so. In the case of overseas voters, their address mentioned in the passport is taken as the place of ordinary residence and chosen as the constituency for the overseas voter to enrol in.
How has the existing facility worked so far?
From merely 11,846 overseas voters who registered in 2014, the number went up to close to a lakh in 2019. But the bulk of these voters (nearly 90%) belonged to just one State — Kerala. Of the 25,606 such voters who actually turned up, 25,534 were from Kerala (mostly from Kozhikode and Malappuram districts).
Clearly, a very low proportion of eligible overseas residents actually registered or turned up to vote. The Representation of the People Act, envisaged voters as only the “ordinary residents” in a constituency (https://bit.ly/3p7gIgL) who will choose representatives to represent their local interests while mediating on larger issues in the legislature.
Some democracies that already allow absentee voting stipulate that overseas electors are eligible to vote provided they are not abroad for a specified period of time and/or if they mention an “intent to return”.
Section 20-1A, Part III of the Representation of the People Act addresses this to some extent by qualifying “a person absenting himself temporarily from his place of ordinary residence shall not by reason thereof cease to be ordinarily resident therein” and in essence provides for NRIs who are temporarily staying abroad to be eligible to vote in their local constituencies.
Yet, the proviso of having to visit the polling booth in person has discouraged eligible voters from exercising their mandate. In the winter session of Parliament in 2017, the government proposed to remove the restriction imposed by Section 20A of the Representation of the People Act, which required them to be physically present to vote in their constituencies. The Bill provided for overseas voters to be able to appoint a proxy to cast their votes on their behalf, subject to conditions laid down in the Conduct of Election Rules, 1961. The Bill was later passed in 2018, but lapsed with the dissolution of the 16th Lok Sabha.
Now the ECI has approached the government to permit NRIs to vote via postal ballots similar to a system that is already used by service voters (the Electronically Transmitted Postal Ballot System, or ETPBS).
What is ETPBS and how does it function?
The Conduct of Election Rules, 1961 was amended in 2016 to allow service voters to use the ETPBS. Under this system, postal ballots are sent electronically to registered service voters. The service voter can then download the ETPB (along with a declaration form and covers), register their mandate on the ballot and send it to the returning officer of the constituency via ordinary mail. The post will include an attested declaration form (after being signed by the voter in the presence of an appointed senior officer who will attest it). The postal ballot must reach the returning officer by 8 a.m. on the day of the counting of results.
The ECI now proposes to extend this facility to overseas voters as well. For this to commence, the Law Ministry has to amend the Conduct of Election Rules, 1961 (just as it was done for service voters). In the case of NRI voters, those seeking to vote through ETPBS will have to inform the returning officer at least five days after notification of the election. The returning officer will then send the ballot electronically via the ETPBS. The NRI voter can then register her/his mandate on the ballot printout and send it back with an attested declaration in a process similar to the service voter. Except in this case, the senior officer would be appointed by the Indian diplomatic or consular representative in the resident country of the NRI. The ECI has not specified whether the voter should send in the ballot through ordinary post to the returning officer or drop it off at the Indian consular office/embassy, which will then send the consolidated envelopes constituency-wise to the returning officers.
Will this facility be available to all overseas voters across countries?
There were news reports that the ECI had indicated to the Ministry of External Affairs that it would want postal voting introduced on a pilot basis in non-Gulf countries. But ECI officials told The Hindu that the ECI had asked the Law Ministry to explore the possibility of extending postal ballots to overseas electors and not restrict it to any particular country.
Are postal ballots a viable means of voting?
The ETPBS method allowed for greater turnout among service voters in the 2019 Lok Sabha election. With increasing mobility of citizens across countries for reasons related to work, the postal ballot method has been recognised by the International Institute for Democracy and Electoral Assistance (an intergovernmental organisation that works to support democratic processes and institutions) as a means to allow overseas voters to exercise their right, subject to certain conditions normally related to the time spent abroad or the work carried out abroad.
Postal ballots were proven to be a secure and easy ways of registering the mandate in the presidential elections in the United States recently with many voters preferring to use this method due to the COVID-19 social distancing norms. A postal ballot mechanism that allows for proper authentication of the ballot at designated consular/embassy offices and an effective postal system should ease this process for NRIs, but the rules must be clearly framed for eligibility on the basis of time spent away from the country.
