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Published : February 27, 2017 | Author : Tushti
Category : Constitutional Law | Total Views : 753 | Unrated

  
Tushti
Author is LLB, LLM and is committed to cause of justice.
 

Voting Rights in India to Non-Resident Indians: A Legal Perspective

Human rights are the most basic, inalienable, interdependent and universally recognized rights that are indispensable for existence and growth of any human being. These human rights are to be enjoyed by all human beings by virtue of being human, irrespective of the place they belong. However, certain humans who immigrate (due to manifold reasons) are denied these fundamental human rights including the most important democratic right to vote. Migration/immigration can never be a justification to reduce a person to a non-person.

Right to vote ensures participatory and responsible democratic government that empowers the citizens to influence governmental decision-making, policy and safeguards their other human rights. It is a guarantee against tyranny and oppression. Free and fair elections help to prevent war and bloodshed by allowing for peaceful transfers of power, while derogation of voting rights may provoke violence and civil unrest. When the government is elected by the people and consists of their representatives, there will be more co-operation and obedience of laws among the masses. Right to vote encourages civic consciousness as it encourages political participation, and the citizens will thus keep checks on the government .

Internationally, right to vote and the right to public participation in government is recognised as basic human right. The Universal Declaration of Human Rights (“UDHR”) inter alia provides that everyone has the right to take part in the government of his country, directly or through freely chosen representatives and the will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures. Similarly, the International Covenant on Civil and Political Rights (“ICCPR”) inter alia provides that every citizen shall have the right and the opportunity, without any of the distinctions and without unreasonable restrictions to take part in the conduct of public affairs, directly or through freely chosen representatives and to vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the elector. Similar is found in other international instruments. This right emphasizes that “no distinctions are permitted between citizens in the enjoyment of these rights on the grounds of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Nevertheless, in some countries, certain citizens are denied their voting rights as a matter of law.

The Constitution of India guarantees fundamental rights for equal protection of law and equality before law and no discrimination can be made between citizens living in India and citizens living abroad merely for purpose of education, employment or otherwise as they also have right to life and liberty. Furthermore, as per Article 326 of the Constitution of India, read with Article 19 and 16 of the Representation of People Act, 1950 and 11A and 62 of the Representation of People Act, 1951, provides that any person not otherwise disqualified and has attained eighteen years of age and is ordinarily resident in a constituency, has a right to get registered in electoral roll and vote in elections of House of the People i.e. Lok Sabha and Legislative Assembly Elections. The said Article, permits disqualification of a voter under the Constitution or a law on the grounds of “non-residence, unsoundness of mind, crime or corrupt or illegal practice”.

As per law, ‘ordinary residence’ in constituency remained a pre-condition for being registered in the electoral roll. However, for Non-Resident Indians the election law was relaxed in 2010 bestowing right to vote even in cases of non-residence in India but physical presence in the constituency is necessary for casting their votes.

This theoretical right did not find practical basis as the Non-Resident Indians (NRIs) are unable to exercise their valuable right to vote mainly due to lack of resources and time to travel back to India. Such tacit denial of right to vote has been challenged before the court of law. The Government is considering alternative methods of voting for NRIs such as e-postal ballot, proxy voting etc. It is high time that the law is amended to remove legal complexities that impede the exercise of right to vote.

The Researcher in the paper study the right to vote as available to the non-resident Indians and explore options by which the right to vote can be successfully safeguarded to the Non-Resident Indians. The scope of study would be limited to understanding the Right to vote of the Non-Residents of India (not convicted or under-trials), eligible to otherwise vote in India in elections of House of People i.e. Lok Sabha and State Legislative Assemblies and make suggestions for ensuring effective exercise of right to vote of Non-Resident Indians.

II Who are Non-Resident Indian Electors?

A Non-Resident of India (NRI) is an Indian citizen who is not residing in India due to manifold reasons. Further, for tax purposes, a NRI is an individual who is citizen of India or Indian passport holder and lives outside India for more than total, not necessarily continuous, 182 days in a financial year is an NRI. Thus, persons posted in United Nations and its organizations/ office or deputed abroad by the central, state governments and public sector undertakings or on temporary assignments are also NRIs.

A Non-Resident of India or an Overseas Elector is “a person who is a citizen of India and who has not acquired citizenship of any other country and is otherwise eligible to be registered as a voter and who is absenting from his place of ordinary residence in India owing to his employment, education or otherwise is eligible to be registered as a voter in the constituency in which his place of residence in India as mentioned in his passport is located. According to the provisions of Section 20A of the Representation of People Act, 1950, an NRI settled in foreign land can become an elector in electoral roll in India”.

Non-Resident of India is different from Overseas Citizen of India as the latter does not enjoy any voting rights. The Overseas Citizenship of India (OCI) Scheme was introduced by amending the Citizenship Act, 1955 in August 2005 in response to persistent demand for “dual citizenship” though dual citizenship was not granted. The Scheme provides for registration as Overseas Citizen of India (OCI) of all Persons of Indian Origin (PIOs) who is of full age and capacity and is citizen of another country but were citizens of India on 26th January, 1950 or thereafter or were eligible to become citizens of India on 26th January, 1950 except who is or had been a citizen of Pakistan, Bangladesh or such other country as the Central Government may specify by notification in the Official Gazette. However, an overseas citizen of India shall not be entitled to the rights conferred on a citizen of India, inter alia under section 16 of the Representation of the People Act, 1950 (43 of 1950) in regard to registration as a voter.

As per information compiled in May, 2012, there are approximately 10037761 NRIs across the world, out of which 11,846 overseas citizens are enrolled in the electoral rolls of India. To get registered one has to file an application (accompanied by duly self attested copy of the relevant documents like Visa etc) prescribed in Form 6A before the Electoral Registration Officer / Assistant Electoral Registration Officer of the constituency within which the place of ordinary residence of the applicant in India as given in his/her passport falls.

Thus, a Non-Resident Indian Elector is absenting from his place of ordinary residence in India and is different from Overseas Citizen of India as latter has no voting rights.

III Legal Provisions regarding right to vote of NRIs

The Constitution of India recognises right of every citizen to vote. The statutory provisions are contained under the Representation of the People Act, 1950 and the Representation of the People Act, 1951 and rules include the Conduct of Elections Rules, 1961 and Registration of Electors Rules, 1960.

“…[R]ight to vote presupposes a right to be enrolled as an elector provided, of course, he has the requisite qualifications prescribed by the Constitution and the election laws and other statutes and has none of the disqualifications enumerated in those laws.

Section 62 of the Representation of the People Act, 1951 recognizes ‘Right to vote’ and states that no person who is not, and except as expressly provided by this Act, every person who is, for the time being entered in the electoral roll of any constancy shall be entitled to vote in that constituency. As per section 19 of the Representation of the People Act, 1950, every person who is not otherwise disqualified, is not less than eighteen years of age on the qualifying date i.e. 1st January and is ordinarily resident in a constituency; shall be entitled to be registered in the electoral roll for that constituency. Further he must not have been confined in prison or convicted of corrupt practice or otherwise disqualified under section 16 of the Representation of the People Act, 1950 by virtue of ceasing to be citizen of India; or declared by a competent Court as of unsound mind; or for the time being disqualified from voting under the provisions of any law relating to corrupt practices and other offences in connection with election, as the name shall forthwith be struck off the electoral roll on disqualification unless such disqualification is removed under any law authorizing such removal.

Furthermore no person can be registered in more than one constituency or more than once in any constituency and so accordingly cannot vote more than once, if he does so than all his votes shall be null and void.

It may be noted that the “Ordinary residence” in the constituency is a pre-condition to get enrolled as voter and thus vote. The phrase ‘ordinarily resident’ is defined in Section 20 of the Representation of the People Act, 1950. A person is not Ordinary resident of a place merely because he possesses a dwelling house or is saying as patient or is detained in prison or in police custody. However, a person absenting himself temporarily from his place of ordinary residence shall not by reason thereof cease to be ordinarily resident therein. A wife of a person shall be deemed to be ordinary resident of place of residence of her husband. Persons holding Office of India as declared by the President shall be deemed to be ordinary resident of place they were ordinarily residing.The Central Government may determine and frame rules to decide if a person is ordinary resident of a place or not at a given time.

In Election Commission of India and Anr. v. Dr. Manmohan Singh and Ors., the Supreme Court while interpreting the word ‘ordinarily resident’ stated that “…‘ordinarily resident’ in a constituency as mentioned in the Representation of the People Act, 1950 shall mean a habitual resident of that place or a resident as a matter of fact in regular, normal or usual course. It means an usual and normal resident of that place. The residence must be permanent in character and not temporary or casual. It must be as above for a considerable time, he must have the intention to dwell permanently. He must have a settled abode at that place for a considerable length of time for which a reasonable man will accept him as the resident of that State.”

NRIs/Overseas Electors living aboard faced difficulty in establishing themselves as ‘ordinary resident’ of place they were residing before they left India. In 2010, the Representation of the People Act, 1950 was amended to insert section 20A for providing special provisions for citizens of India residing outside India. The section starts with a non-obstante clause that “Notwithstanding anything contained in this Act”, every citizen of India (a) whose name is not included in the electoral roll; (b) who has not acquired the citizenship of any other country; and (c) who is absenting from his place of ordinary residence in India owing to his employment, education or otherwise outside India (whether temporarily or not), shall be entitled to have his name registered in the electoral roll in the constituency in which his place of residence in India as mentioned in his passport is located and the time for such registration may be prescribed. Every person registered under this section shall, if otherwise eligible (for example not disqualified, is eighteen years old etc) to exercise his franchise, be allowed to vote at an election in the constituency.

Further, while correcting or including names, no amendment, transposition, deletion, inclusion or striking off of name shall be done without proper verification in manner as prescribed by the Electoral registration Officer.

Similarly, the Registration of Electoral Rules, 1960 was amended by the Registration of Electoral (Amendment) Rules, 2011. It for first time defined “Overseas Elector” as citizen of India as referred in section 20A of the Representation of the People Act, 1950 and is above 18 years of age. Place of residence shall be construed to be any mentioned in the Passport. Notice by way of Notification in Official/ Electronic gazette for registration of names in electoral rolls. The NRI Applicant has to file an application in prescribed Form 6A (as per Rule 8B) along with relevant document, like copy of passport and visa, may be filed before the Electoral Registration Officer / Assistant Electoral Registration Officer of the constituency as mentioned in passport or can be sent through post and can also be filed online. If personal hearing is necessary then a person in Indian Mission will be so designated for the same.The electoral roll is also to be published in Official/Electronic gazette.

The manner and procedure of voting is by paper Ballot or Voting Machines and save as expressly provided by this Act, no votes shall be received by proxy. Section 60 of the Representation of the People Act, 1951 read with Rule 18 of the Conduct of Election Rules, 1961, provides that certain class of voters like armed force personnel/service voter can cast vote by postal ballot or by proxy and persons like Government employee employed outside India or on election duty can cast vote by postal ballot. As per recent amendment in the Conduct of Election Rules, 1961, dated 21st October, 2016, postal ballots can be transmitted by Returning Officer by electronic means. Along with Ballot paper (containing names of candidates along with occupation or address in case two or more have same names), a counterfoil containing name, ballot paper no., electoral roll detail is sent and a declaration for attesting officer that sign was in his presence, a cover, a large cover addressed to the returning officer and instructions for the guidance of the elector. Voting by proxy can be done by service voter, where he can apply and nominate a proxy voter and also a substitute proxy vote (in case main proxy voter dies or service voter wants to revoke him) and intimation of such name is given to service voter.Further, to prevent personation of electors, a marking with indelible ink of the thumb or any other finger of every elector at a polling station before he votes. However, if a person acts as proxy then he may have two such marks on his hand one on his left forefinger (acting for himself) and left middle finger (when he gives proxy vote).

Despite above provisions the Overseas Elector need to be physically present in his constituency in India to cast his precious vote. The provision can be said to be in violation of Article 14 of the Constitution of India to the extent that it implicitly treated persons on a different footing based on economic classifications as Overseas Electors would have to travel back to India, accordingly needs to be amended.

IV Judicial Interpretation to protect right to vote of NRIs

Democracy is said to be the basic feature of Constitution of India. “Free and fair elections alone are guarantee of growth of a healthy democracy in the country. The “fair” denotes equal opportunity to all people. Universal adult suffrage conferred on the citizens of India by the Constitution has made it possible for these millions of individual voters to go to the polls and thus participate in the governance of our country. For democracy to survive, it is essential that the best available men should be chosen as people’s representatives for proper governance of the country.” Accordingly, right to vote of even citizens though living outside India must be safeguarded.

Speaking about the concept of voting, the Supreme Court in Lily Thomas v. Speaker of Lok Sabha, has ruled that “…..Voting is a formal expression of will or opinion by the person entitled to exercise the right on the subject or issue in question [and that] ‘right to vote means right to exercise the right in favour of or against the motion or resolution. Such a right implies right to remain neutral as well’.”

Further ‘Right to vote’ “includes within its ambit the right of an elector to cast his vote without fear of reprisal, duress or coercion. Protection of elector’s identity and affording secrecy is therefore integral to free and fair elections” Accordingly, such mode of voting need to be devised that secrecy of NRI Voter’s vote is accorded as given to citizens residing in India.

It may be noted that at present three combined petitions are pending in the Supreme Court of India regarding giving teeth to the right to vote by considering various alternative modes by which the NRIs can exercise their vote without actually being required to be physically present in India. In Nagender Chindan & Ors. v. Union of India and ors, the petitioner along with two other citizens of India working in United Kingdom filed the petition in February 2013 for granting voting rights by way of postal ballot or online voting facility to NRIs who are living outside India. In Naresh Kumar Hanchate & Ors. v. Union of India & Anr., the petitioners are Members of Pravasi Bharat and they have also raised the same issue and cited the example of countries like United Kingdom, Canada, etc. who provide postal ballot for their citizens abroad. While in Dr. Shamsheer V.P. v. Union of India & ors., the petitioner originally belonging to Kerala sought a similar directions to provide external voting in different forms, such as voting in diplomatic Missions, postal voting, proxy voting, electronic voting as available in various countries. During pendency of this case the Election Commission of India informed that court they have set up a Committee to study the various options of voting to Overseas Electors, accordingly the court directed for the report to be placed on record. In last orders dated 12/08/2016 it was submitted before the court that the Government of India has, in principle, accepted the Report and that necessary steps for making suitable amendments in the Representation of People Act are being taken by the Government.

Note that recently, the Defense personnel vide Notification dated October 21, 2016 have been given voting right through postal ballot that can be transmitted electronically. However, the rights of Overseas Electors to vote without being physically present at the constituency they are enrolled as voter is still to see light of the day.

V Alternative Methods of Voting

As discussed in part III of this paper that voting by Overseas Elector can be done by being physically present in the country on paper ballot or electronic voting machines and however, some other classes of voters can vote via postal ballot and proxy voting. This part would discuss the feasibility of various alternative methods that can be effectively devised for voting from outside India.

In this regard, a study got conducted by the Election Commission of India with regard to various voting methods, as discussed below:
Voting facilities in diplomatic missions for overseas citizens-
As per handbook of International Institute for Democracy and Electoral Assistance (IDEA), around 50 countries in the world provide voting facilities in diplomatic missions for overseas citizens. There are two basic methods prevailing globally: (i) Carving out extra territorial electoral constituencies for external voters; and (ii) External voters in normal course are assigned to a particular constituency in home country, generally, in the constituency where external voter is registered. Personal voting in the embassies/consulates is akin to voting in polling stations in home constituency. However, NRIs in many countries run into lakhs and then arranging ballot or EVMs for 543 parliamentary constituencies or 4120 assembly constituencies in the country in a country abroad is a difficult task. Further logistical support including security need to be available that is equally complex job. Also certain host countries may not permit or object to such large scale people gathering at a certain place.

Voting on Internet- E-voting may be considered to be done at polling stations by setting up electronic Kiosks or from anywhere by way of protected passwords on website of the Election Commission of India. This method also has its own peculiar limitations. It is difficult to build a software than can effectively work on all computer systems/servers especially when heavy load is there. Further there is lack of secrecy and security in the method as is susceptible to various computer crimes like hacking, theft, exposure to virus, malware, spyware, information stealers that can also corrupt the computer and destroy information. Also similar named domain name made be made to re-direct vote to some other site or tampering with computer source documents or phishing or spoofing may be done. Thus this method can be misused and rigged.

Voting through Postal Ballot Paper or E-Postal Ballot- An Elector may apply for postal ballot or in case of service voter the Returning Officer himself provides with the Ballot paper. The identity of the voter is to be established and as for format, officers prescribed like magistrate must check identity of voter and attest his signatures. However, again providing copy of the ballot may prove to be a problem and if only officers at embassy or consulate can only attest then permission of host country or arranging logistics etc will be required. Also this method is very time-consuming and susceptible to delays and in certain cases of ballot reaching after election date vote will not be counted.

However, transmission of postal ballot electronically can also be considered. This way on request made by elector to the Returning Officer upto six months before the dissolution or house or on announcement of elections, on verification, online postal ballot may be available to the voter online that is protected by a password. Here again the lacunas of using online facilities as discussed above apply and security, secrecy and need for foolproof software can remain a concern. With use of technology, such as unique ID generated through customized random algorithm and Water Marking, QR/Bar Code and Numbering that allow only one print to be printed by the voter, the lacuna in system can be taken care of to an extent.

Voting through duly appointed proxy- Proxy can be appointed as done in cases of service voters who can vote in the constituency of behalf of the Overseas Elector. The appointment of proxy can be made any time including when the Overseas Elector was about to leave India, the logistic support in other country and the requirement permission of host country can be eliminated. However, a proxy may vote for someone else or electors who may not have any trustworthy known persons in his constituency may suffer. Further as per present procedure one proxy can vote for only one Overseas Elector as the ink mark is put on his left middle finger. This system is not foolproof either.

Thus, there is no perfect method by which an Overseas Elector can cast his/her vote as all methods tend to have some lacunas that need to be addressed before those methods of voting can be legally brought into force.

VI Conclusion and Suggestions
The Indian Diaspora residing abroad is entitled to basic human right that includes the most important political right to vote, as available to other citizens living in India. Migration/immigration cannot be considered a good ground to deny this right to vote or say in democratic process of country that is universally recognised as fundamental to life of human.

The Overseas Elector (OE) or Non-resident Indian (NRI) by reasons of migration/immigration for education, employment or otherwise remains a citizen of India and is the important drop to that can decide and shape the future of the country as government policies can affect him and his dear ones. Right to vote is his hands strengthens the democratic setup, instills a sense of belongingness towards the nation and creates a sense of responsibility in him as well as the candidates contesting to be fair leader. Accordingly, the Overseas Elector as distinguished from the Overseas Citizenship of India has right to vote and participate in elections.

The Constitution of India as well as Statutes recognise ‘Right to vote’ of the NRI as precious right. A person needs to be citizen of India of at least eighteen years of age, not otherwise disqualified by law and must be ordinary resident of the constituency to be enrolled as voter. A person can be enrolled in only one place in one constituency and has only one vote.

However, in 2010, provision was made for Overseas Elector to get enrolled and vote in India. For exercise of his franchise he needs to be physically present in India. Practically, it meant no right at all and defeat of the said provision as larger number of Overseas Electors/NRIs were unable to divest the time and have to money to travel back to India to vote.

Despite several millions of overseas citizens living aboard only a few got themselves registered to cast their votes as due to lack of awareness and difficulty of being physically present to cast vote. Accordingly, the doors of the Supreme Court were knocked for giving life to right to vote by providing alternative methods of voting. The Election Commission of India got a study conducted regarding feasibility of alternative methods of voting, which was accepted by the Government of India and appropriate amendments were stated to be considered. However, till date no such methods have been provided to the NRIs as yet, though alternate methods are made available to Defense Personnel by amendment dated 21 October 2016.

Various alternative methods of voting can be by way of voting at embassy or consulate however, difficulty of arranging ballot or EVMs for 543 parliamentary constituencies or 4120 assembly constituencies along with logistics and security and timely permission of host country is main challenge of this method. Internet voting is quick, less expensive however, susceptible to cyber crimes and technology issues. Voting may be done by appointment of proxy, however only one person can act proxy for one, also a person may not be able to find trustworthy proxy in his constituency to vote on his behalf and proxy may vote for other candidate than directed. However, voting by proxy does not require logistic issues and permission of host country and proxy can be appointed at any time even when person leaves India. Voting may be done through Postal Ballot Paper or E-Postal Ballot, for most special class of voters this system is followed. The procedure of system is too time taking as first request needs to be sent to Returning Officer who on verification would send postal ballot with cover and a declaration and attestation needs to be done regarding identity of the person and delay may lead to nullification of vote. However, electronic transfer of postal ballot with use of effective technology that does not permit duplication can save half time.

Thus, no alternative method is foolproof that can be completely relied for voting by NRIs/OE as there as lacunas in traditional methods of voting as well like rigging of polls, improperly functioning voting machines etc.

It is suggested that a culmination of all methods can prove to be more effective measure along with online-registration which is already in place. Voters may be given option of proxy voting movement they plan to leave India and two substitute proxy voters in case main proxy is dead or ill or unavailable or the voter wishes to change. A declaration to that effect may be published on the Election Commission of India website or other places as to clarity of proxy nominated. Postal ballot/E-Postal Ballot method can be used from time when six months time is left in elections or from time of notification. A list of persons competent to attest such as government employer abroad, judge etc, who are available other than embassies etc may be made available. Also use of digital signatures to retransmit ballot can also be considered. For ensuing Online-Voting, research and development of technology needs to be encouraged. Software needs to be devised that can permit video-recording method or biometric of giving votes also password secured gateways with one time passwords must be used to ensure safety and secrecy. Voting at Indian missions/embassies/consulates or E-kiosks may also be made available to ones who are unable to use either of above mentioned with assigning reasons this way pressure on staff etc will be less and will be easy to take permission of the host country. Accordingly, necessary amendments may have to be carried out in Section 60 of the Representation of the People Act, 1951

Further, mandatory provision for spread of awareness regarding this right to vote to NRIs/OE must also be made so all NRIs can available any method as per their convenience.

Thus, law needs to be amended to provide multiple methods of voting including by online, proxy or in Indian Missions abroad or postal ballot and adequate steps to safeguard the various methods needs to be done to make the NRIs/OE’s right to vote a reality.

End-Notes:
# “Human right to vote in India – the role of law”, available at: www.dspace.vpmthane. org:8080/jspui/bitstream/123456789/1637/1/Human_right_to_vote_in_India.pdf (last visited on 30th October, 2016).
# "The Right to Vote: A Basic Human Right in Need of Protection”, available at: www.humanrightsadvocates.org/wp-content/uploads/2010/05/The-Right-to-Vote-A-Basic-Human-Right-In-Need-of-Protection.pdf (last visited on 30th October, 2016).
# “Why is right to vote important?”, available at: www.quora.com/Why-is-right-to-vote-important (last visited on 30th October, 2016).
# Ibid.
# General Assembly Resolution No. 217A(III), U.N. Doc. A/810 (1948).
# Universal Declaration of Human Rights, Article 21 (1).
# Universal Declaration of Human Rights, Article 21 (3).
# General Assembly Resolution No. 2200A (XXI) of 16 December 1966 came into force on 23 March 1976, India acceded to the Convention on 10 April 1979.
# International Covenant on Civil and Political Rights, Article 25 (a).
# International Covenant on Civil and Political Rights, Article 25 (b).
# Article 13 of the African Commission on Human and People’s Rights, Article 23 of the American Convention on Human Rights, Article 5 of the International Convention on the Elimination of All forms of Racial # Discrimination, 1966, Article 7a of the and Protocol One of the European Convention on Human Rights (“ECHR”).
# Human Rights Committee, General Comment 25 (under Article 40), para. 3 and 15 (to stand in election), U.N. Doc. CCPR/C/21/Rev.1/Add.7 (12 July, 1996).
# Supra note 2.
# The Constitution of India, Article 14 , 19, 21 and 21A.
# The Income-tax Act, 1961, Section 6.
# “Non-resident Indians”, available at: www.gktoday.in/non-resident-indians-nris/ (last visited 3 November 2016).
# “Overseas (NRI) Electors”, available at http://eci.nic.in/eci_main/nri/NRI_2122013.pdf(last visited 3 November 2016).
# Lakhs of OCI have been registered with India, see Annexure to Reply given in Parliament Unstarred Question No.3968 for answer in Lok Sabha on 17.12.2014; available at: http://164.100.47.193/Annexture_New/lsq16/3/au3968.htm (last visited 3 November 2016).
# The Scheme was launched during the Pravasi Bharatiya Divas convention 2006 at Hyderabad. A registered Overseas Citizen of India is granted multiple entry, multi purpose, life-long visa for visiting India, he/she is exempted from registration with Foreign Regional Registration Officer or Foreign Registration Officer for any length of stay in India, and is entitled to general parity with Non-Resident Indians in respect of all facilities available to them in economic, financial and educational fields except in matters relating to the acquisition of agricultural or plantation properties. Specific benefits/parity is notified by the Ministry from time to time. See, # “Overseas Citizenship of India Scheme”, www.mea.gov.in/overseas-citizenship-of-india-scheme.htm (last visited 3 November 2016).
# The Citizenship Act, 1955, section 7A.
# The Citizenship Act, 1955, section 7B (f).
# Parliament Unstarred Question no. 2854 dated 30.07.2015 for answer in Lok Sabha; available at: http://164.100.47.194/Loksabha/Questions/QResult15.aspx?qref=14154&lsno=16; also see http://164.100.47.190 /loksabhaquestions /qhindi/8/AU1612.pdf (last visited 3 November 2016).
# See page 5 of ECI Report, available at: http://eci.nic.in/eci_main1/current/NRI Voting_Final draft23012015.pdf (last visited 3 November 2016).
# The Supreme Court of India has stated that “right to elect” is not a fundamental right nor a common law right; it is a statutory right, and any question relating to election has to be resorted within the four corners of the Act as held in Jyoti Basu and others v. Debi Ghosal and others, Civil Appeal No. 1553 of 1980 (Decision dated 26-2-1982) in para 8. While in People’s Union for Civil Liberties v. Union of India [(2003) 4 SCC 399] it was held that the “Right to Vote” is a constitutional right but not merely a statutory right.
# Lakshmi Charan Sen and Others v. A.K.M. Hassan Uzzaman and Others, Civil Appeal Nos. 739 to 741 and 742 of 1982 and Transferred Case No. 3 of 1982 (Decision dated 8.5.1985).
# The Representation of the People Act 1950, Section 14.
# The Representation of the People Act, 1951, Section 62 (5).
# The Representation of the People Act, 1951, Section 11-A.
# The Representation of the People Act, 1951, Section 62 (2).
# The Representation of the People Act 1950, Section 17.
# The Representation of the People Act 1950, Section 18.
# The Representation of the People Act, 1951, Section 62 (3)& (4).
# The Representation of the People Act, 1950, Section 20 (2).
# The Representation of the People Act, 1950, Section 20 (IA); Added by Act No. 58 of 1958.
# The Representation of the People Act, 1950, Section 20 (6).
# The Representation of the People Act, 1950, Section 20 (4).
# The Representation of the People Act, 1950, Section 20 (7).
# (2000) 1 SCC 591; Also see Sunil Kumar Kori & Anr. v. Gopal Das Kabra & Ors.. Civil Appeal No. 9728-9729 of 2016 (Arising out of SLP (C) No.20677-20678 of 2016) ‘Ordinary residence’ is different from ‘contonement’.
# The Representation of the People (Amendment) Act, 2010, Act no.36, dated 21 September 2010.
# The Representation of the People Act, 1950, Section 20A (3).
# The Representation of the People Act, 1950, Sections 22 and 23.
# The Registration of Electoral Rules, 1960, Rule 2 (cc).
# “‘Passport’ means a passport issued by the Indian Government, in which visa endorsement has been made. It doesn’t mean necessarily the current passport, since in many cases the current passport may not contain details of the address in India, mentioned in the original passport but may contain the address in foreign land”; see Frequently Asked Questions Overseas (NRI) Electors, available at: # http://eci.nic.in/eci_main/nri/NRI_2122013.pdf (last visited on 4 November 2016).
# Ibid.
# The Registration of Electoral Rules, 1960, Rule 8B.
# The Registration of Electoral Rules, 1960, Rule 10.
# The Representation of the People Act, 1951, Section 61A.
# The Representation of the People Act, 1951, Section 59.
# The Conduct of Election Rules, 1961, Rules 22 and 23.
# The Conduct of Election Rules, 1961, Rule 27M (c) and The Representation of the People Act, 1951.Section 60.
# The Conduct of Election Rules, 1961, PART IIIB.
# Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299.
# People’s Union for Civil Liberties (PUCL) v. UOI, (2013) 10 SCC 1 28. (NOTA case).
# (1993) 4 SCC 234.
# Krishnamoorthy v. Sivakumar & Ors., Civil Appeal No.1478 OF 2015 (Arising out of SLP(C) No. 14918 of 2009) para 56.
# Writ Petition (Civil) No. 80 of 2013.
# Writ Petitions (Civil) No. 1010 of 2013.
# Order available at: http://courtnic.nic.in/supremecourt/casestatus_new/querycheck_page2.asp (last visited on 1 November 2016).
# Notification S.O. 3263(E) in PART II—Section 3—Sub-section (ii), available at: http://egazette.nic.in/WriteReadData/ 2016/172278.pdf (last visited on 1 November 2016).
# Report of Committee for Exploring Feasibility Of Alternative Options for Voting By Overseas Electors, available at: http://eci.nic.in/eci_main1/current/NRI Voting_Final draft23012015.pdf(last visited on 1 November 2016).
# “Patterns of Extra-territorial Voting”, http://www.migrationdrc.org/publications/working_papers/WP-T22.pdf(last visited on 1 November 2016); also see, “Overseas Constituency”, available at: # https://en.wikipedia.org/wiki/Overseas_constituency (last visited on 1 November 2016).
# Ardita Driza Maurer and Jordi Barrat, E-Voting Case Law: A Comparative Analysis (Routledge Publishers, 2015).
# Supra note 60.
# Information Technology Act, 2000, Section 66.
# Information Technology Act, 2000, Section 65.
# “Phishing Scams in India and Legal Provisions”, available at: http://www.neerajaarora.com/phishing-scams-in-india-and-legal-provisions/ (last visited on 1 November 2016).
# Information Technology Act, 2000, Section 66A; also see “Cyber Laws in India”http://www.iibf.org.in/documents /Cyber-Laws-chapter-in-Legal-Aspects-Book.pdf(last visited on 1 November 2016).
# The Conduct of Election Rules, 1961, Rule 54A.
# Supra part III of this paper for procedure.

 

 




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