The Supreme Court in the case Kerala PravasiAssociation And Anr. v. UoI And Anr observed and has issued a notice in a petition seeking directions to the Central Government to permit citizens residing outside India to exercise their franchise, under Section 20A of the Representation of the People Act, 1950 (1950 Act), from their employment or place residence. Thus, the petition asks for external modes/alternate options to be provided to citizens residing outside India for exercising their right to vote, without insisting on their physical presence in their respective polling stations on the day of polling in India.
The present matter was listed before the bench of Chief Justice of India NV Ramana, Justices J.K. Maheshwari and Hima Kohli.
In this case, the petitioner is Kerala Pravasi Association, an organization with the primary objective of providing justice and welfare to the expatriates. It was submitted by the petitioner that while Section 20A of the 1950 Act provides special provisions for citizens of India residing outside India for exercising their franchise, the object purpose of the legislation stands defeated as there is no corresponding provisions in the Rules under the 1950 Act to allow citizens to vote without being physically present in the polling stations of their respective constituencies in India. As per the petition, the discrimination is created between the overseas electors who have the ability to be physically present in the constituency for the election and those who are unable to leave their education, employment etc. to be in the constituency at the relevant time.
It was submitted by the petitioner that the provisions of Representation of the People (Amendment) Act, 2010 (2010 Act) which mandates that Non- Residents of India (NRIs) are to be physically present in their constituencies to exercise their right to cast vote in elections is violative of the Fundamental Rights as enshrined under Article 14, Article 19 and Article 21 of the Constitution of India.
It was stated in the petition that the key objectives of the 1950 Act, as per the Statement of Objects and Reasons of the 2010 Act, are to boost the involvement of citizens who are living abroad and to recognise their right to vote as their legitimate right. Therefore, the Rules under the Act fail in ensuring the involvement of the citizens living abroad and deny them their Right to effectively exercise their franchise.
Further, the petition also states that Section 20A of the 1950 Act arbitrarily classifies and distinguishes Non-Resident Indians who are physically present in their constituencies from those who are not physically present and confers the right to cast votes on the former category and that such right does not have a rational nexus with the object sought to be achieved by the Legislation.
Also, the petition highlights the social divide created by this provision and submitted that Section 20A of the 1950 Act creates a deep divide amongst the NRIs based on the financial conditions and economic strata as only those who are financially stable would be able to travel and can cast their vote physically.
The court, while stating that free, periodical and fair election is the substratum of democracy. The plea filled prays for alternative methods to cast votes and stated that It is necessary that new and alternative methods of casting one’s vote are given effect to ensure maximum participation. It is submitted that the right to vote electronically has been recognized and approved by the Parliament as a means to represent one’s rejection/approval, and to ensure wider participation of the stakeholders in the decision-making process.
The petition also highlights the example of the amendments to Section 108 of the Companies Act, 2013 read with Rule 20 of the Companies (Management and Administration) Rule, 2014, which provided an opportunity to the shareholders to exercise their right to vote by the electronic means on the resolutions placed before the general body meeting of a company without being present physically.
Accordingly, it was stated that the principle of universal suffrage can only be fully achieved if citizens living abroad are entitled to vote in the elections of their home country.