Supreme Court Issues Notice On PIL Seeking Postal Ballot, E-Voting Facility For NRI Voters, People Living Outside Constituencies

The PIL filed by a Kerala based political activist K. Sathyan stated that these days, a vast majority of population reside temporarily away from their constituency, for many reasons including profession, occupation, trade, business, education, marriage etc. It was urged that such people should be extended the benefit of voting through postal ballots.

During the hearing, the bench led by the Chief Justice of India was first disinclined to admit the PIL, observing that voting was not a fundamental right. The bench also initially expressed that the Court has limitations in directing electoral reforms.

CJI SA Bobde said, "If a voter chooses to stay out of his constituency, and does not choose to come for voting, there is no denial of voting right. He cannot sit in USA and say that he wants to vote in Kerala."

However, Advocate Kaleeswaram Raj appearing for the Petitioner argued that insistence of physical presence for voting by imposing rigid conditions violates a person's fundamental right to trade and profession, to choose place of residence and also the right of movement guaranteed under Article 19 of the Constitution.

"Persons cannot be forced to choose between their right to vote and right to better employment. This violates their right to carry on their right to trade/ profession", Raj argued.

He added,

"Practise of postal votes can be expanded. They are going outside the country for livelihood." Raj informed the bench that Section 60(c) of the Representation of People Act, 1951 enables the respondents to make provisions to allow voting through postal ballot. However, the same is currently limited to a few categories of persons.

Kaleeswaram Raj also informed the bench that even as per the 2011 census, there were nearly 45 crores Indian emigrants who have gone to foreign nations in search of employment, and denying voting right to such a vast population was wholly unjustified.

After the brief arguments by the petitioner's counsel, the bench, also comprising Justices AS Bopanna and V Ramasubramaniam, agreed to examine the plea and issued notice on the same.

"Omission to include the categories of persons stationed outside their constituency. from the category of persons enjoying the right to vote through postal ballots, is arbitrary and violative of their fundamental rights under Article 14, 19(1)(a), 19(1)(d), 19(1)(g) and 21 and the right to vote under Article 326," the petition stated.

Section 60(c) states that any person belonging to a class of persons notified by the Election Commission in consultation with the Government may give his vote by postal ballot and not in any other manner, at an election in a constituency where a poll is taken.

The plea states that it is essential to read down the phrase "not in any other manner", other than postal ballot, occurring in Section 60 (c) of the 1951 Act.

"Such a term in the provision, cannot and should not stand in the way of providing other remote electronic voting methods, which the law makers could not foresee at the time of legislating the Act," it is contended.

Inter alia, it is asserted that the term "ordinarily resident" occurring under Section 20 of the 1950 Act, in the context of persons who are entitled to enrol as voters in the electoral roll, requires a pragmatic understanding and application in keeping with the current times (where a vast population resides outside their voting constituencies), to bring out the legislative intent behind the provision.

The Petitioner has sought that the access of citizens to the electoral process should be expanded by facilitating more platforms for casting votes by:

• Decentralising the voting system by expanding access to voting
• Enhancing the existing system of postal voting to other categories, by expanding the scope of certain classes of people" occurring in Section 60 of the 1951 Act
• Facilitating an option for e-voting

He has also urged the Court to ensure a fairer election process, through technological and other means and by curbing malpractices and corrupt practices such as booth capturing, vote rigging, in absentia voting, misuse of open vote etc. by taking the following steps:

• Providing double databases for transactions, namely a central database and a local database, which would drastically reduce the chance of manipulation of data and Electronic Voting Machines (hereafter, referred as EVMs)
• Evolving a One-Time Password (hereafter, referred as OTP) system for the purpose of fault free identifications of voters without infringing privacy rights
• Installation of Closed-Circuit Television (hereafter, referred as CCTV) in all the polling booths across the country so as to ensure probity in the process of voting;
• Steps to curtail misuse of the facility for assisted voting for blind and physically infirm persons
• Steps to curb multiple voting by necessary verifications