Differential Voting Rights

This article has been written by Uzma Fatima, from Jamia Hamdard.

It has been published by Rachit Garg.

Introduction

A small number of voters have access to postal voting. By marking his/her choices on the ballot paper and handing it back to the election official before the vote is recorded, a voter can cast a remote ballot using this service.

Armed personnel, including those in the Army, Navy, and Air Force, as well as members of a state’s armed police force who serve outside the state, as well as government employees who are stationed outside of India and their wives, are only entitled to cast ballots by mail. They cannot vote in person, to put it another way. Only individuals who are in preventive custody are eligible to vote via mail.

Postal ballots may be cast by the President of India, the Vice President, Governors, Union Cabinet Ministers, Speaker of the House, and government employees who are on election duty. Individuals must use a specific form to apply for this benefit, though.

The Law Ministry has established a new category of “absentee voters” who can now cast ballots via mail at the request of the Election Commission. These are voters who are unable to cast ballots because of their employment in vital services. At this time, representatives of the Northern Railway (Passenger and Freight) Services, the Delhi Metro Rail Corporation, and the media have been selected as absentee voters.

The process of votes recorded by a post

Within 24 hours of the final day for withdrawal of nominations, the returning officer must print and distribute ballots. This is done to ensure that the concerned voter receives the ballots well before the election, allowing her plenty of time to return them before the counting day.

Postal ballots are distributed to military personnel by their record offices. Members of a state’s armed police force (serving outside the state), government employees deployed outside India, and their spouses may receive the voting paper via mail or electronically. The ballots for the following categories can be delivered in person or mailed.

After receiving it, the voter can place a checkmark or a cross next to the candidate’s name to show her preference. Additionally, they need to sign a declaration that is legally proven and states they have marked the voting paper. Prior to the start of the vote counting, the ballot paper and declaration are sealed and delivered back to the returning officer.

Why is no proxy, postal or e-ballot voting for inter-state migrants as per Election Commission

A request to allow interstate migrants to vote electronically or by mail rather than going to their home districts in person was denied by the Election Commission (EC).

400 million Indians are thought to travel to other states in pursuit of employment; they are unable to cast ballots in their own states.

The Representation of the People Act’s provision stating that only those who are “ordinarily resident” of a constituency can vote from that constituency and that migrants must register in their current place of residence if they wish to vote, according to the EC, was unambiguous in this regard. This was stated in the EC’s response to the Supreme Court on Saturday.

The EC claims that because the Act’s architecture makes it plain that a person can only be enrolled in the place where he or she resides on a regular basis, there can be no problem with a person signing up in his or her home constituency and voting after moving. The EC’s affidavit was provided in response to a request made by petitioner Dr. VP Shamsheer, a Kerala native who currently resides in the United Arab Emirates, through attorney Haris Beeran.

Private citizens cannot be compared to government officials, members of the armed forces, or other unique groups of persons who are allowed to cast postal ballots, according to the EC.

According to the EC, they are given this privilege as a result of their duties to the public as representatives of those offices. According to the court, the differentiation is not discriminatory and the classification is fair and reasonable.

According to the European Commission, several measures have been made to inform, encourage, and make it easier for people to exercise their right to vote, and it will deal with any problems that migrants may encounter when enrolling in local schools after they have migrated.

Postal vote for migrants

The national movement’s revolutionary momentum and the egalitarian and anti-discriminatory principles it upheld helped India transition from a restrictive 15% of Indians having (limited) voting rights to a universal adult franchise, while the United States gradually granted a universal adult franchise.

Article 326 of the Constitution, which mandates that elections be held based on the adult universal franchise and ensures that elitist notions of qualifications, such as property ownership, do not disqualify people from voting or holding office, was made possible thanks to B R Ambedkar’s foresight in the area of voting rights.

Ambedkar testified before the Southborough committee in 1919, which was tasked with establishing representative institutions for the Indian Dominion, and had long influenced public opinion on the issue. He highlighted that voting would be (one of) the harbinger(s) of political education and that, in the end, a democratic government was intimately related to the right to vote.

After COVID-19, India needs to reflect on its lengthy past. The decisions of the ruling parties made at the polls and the way in which the desire of the Indian people is reflected in policy are the fundamental pillars of representative democracy. India is unable to explain how such a sizable portion of its population is denied this fundamental constitutional right merely by its work definition, which is defined as being away from home, with all the negative effects of unchecked money power in politics, class, caste, and community interests obscuring a modern and truly transparent electoral process.

Making sure they have the right and ability to vote is essential to ensuring that Indian democracy learns the proper lessons from the suffering that a sudden lockdown caused this significant portion of the population, a situation that has been brought before the more settled and privileged sections of the population, including politicians.

The Constitution guarantees everyone the freedom of movement and the right to reside anywhere in the nation. According to the 2011 Census, there are 450 million (45 crore) internal migrants, an increase of 45% over the 2001 Census. Among them, 26% of the movement, or 117 million (11.7 crores), occurs within the same state’s districts, whereas 12% of migration, or 54 million (5.4 crores), takes place across states. Both government and unaffiliated experts agree that this number is underestimated. Circular migration is the movement of people back and forth between host cities without settling there permanently.

The majority of migrant workers come from underdeveloped rural areas and the most marginalised groups, including Muslims, SC/STs, OBCs, and other minorities. They lack assets like land and are largely illiterate. The largest interstate migration sources in 2011 were Uttar Pradesh and Bihar, with 83 lakh and 63 lakh migrants, respectively.

Voter registration cards for their home district are present among the majority of migrant voters. In a 2012 study, 78% of migrant workers were found to have voter identification cards and to have their names on voter registration lists in their home cities. The bulk of them are unable to cast ballots because they cannot travel back to their home states on election day owing to financial constraints. Only 48% of those surveyed, compared to the national average of 59.7%, participated in the 2009 Lok Sabha elections, claims one survey. These trends have not changed. With voter turnout percentages of 57.33 percent and 59.21 percent, respectively, in the 2019 Lok Sabha elections, major sender states like Bihar and Uttar Pradesh were among the lowest. The national average was 67.4 percent.

Due to the cyclical and seasonal nature of migration, migrants do not qualify as “ordinary inhabitants” under Section 20 of the Representation of People Act (RP Act) in the host state, making it impossible for them to get voter identification cards. They are unable to change their electoral district as a result. Only 10% of the migrant workers surveyed in their host cities possessed voter identification.

Section 60(c) of the RP Act gives the Election Commission of India the power to notify a particular group of voters to cast postal ballots. The ECE’s well-known pledge to make sure “no voters are left behind” has sparked initiatives to build a secure postal voting system. In the 2019 Lok Sabha elections, more than 28 lakh ballots were mailed in. Under a similar framework, the migrant worker from India has a secure right to vote.

The Supreme Court has interpreted the right to vote as extending the fundamental right to free expression. The ECI is now under a positive commitment to offer the optimal conditions for exercising this freedom. No of their caste, gender, colour, ethnicity, or religion, all Indian migrant workers are entitled to this fundamental freedom under the constitution of the ECI. This “class of Indians” security, dignity, and general well-being must be erased from the political vocabulary of the nation if their right to vote is not upheld.

The postal vote should be available to migrant workers: rights groups tell EC

In a letter to the Election Commission, a number of human rights organisations argued that migrant workers should also have access to postal ballots (EC).

According to a Memorandum from Citizens for Justice and Peace, Lok Shakti Abhiyan, Bangla Sanskriti Manch, All India Union of Forest Working People, and Bharatiya Nagrik Adhikar Suraksha Manch, migrant workers frequently lack the ability to cast ballots because they are employed outside of their home state.

The memorandum reads, “By allowing migrant workers to vote by postal ballot, the Election Commission of India would be taking a step toward a more inclusive democracy, making sure that every segment of the adult and eligible Indian population has the opportunity to vote and is not excluded due to the demands of their profession.”

According to the memorandum, “migrant labourers constitute a particular class of persons who, effectively, are barred from exercising their franchise, resulting in and in turn producing tremendous economic and social suffering.”

Following the recommendations of the Standing Committee on Defence, the EC increased the postal ballot option to include members of the armed forces and their families in 2016. Voter registration has surpassed 16 lakh military men. People over 65 can now use postal ballots thanks to a recent decision by the Election Commission. They were compelled to take it down after protests from the opposition party.

The 2011 Census indicates that there are 45 million migrant labourers in India. The memorandum states that 78% of the migratory workers reviewed in 2012 had voter identification cards and their names were on the voter rolls of their home cities or villages. Most of them could not travel by themselves to cast their votes.

Postal vote: The only way migrant workers can cast a vote

The COVID-19 lockdown has brought the plight of migrant workers to the fore of public discourse.

Beyond concerns about survival, the crisis response must involve real enfranchisement of migrant workers since this will likely allow them to talk in terms of political rights and compel political parties to pay attention to them.

It will therefore open the door for legislation and the implementation of a system that unifies citizenship and employment rights. We believe that the request for remote voting for internal migrants is more legitimate given that the Election Commission of India (ECI) has previously granted voting rights to Non-Resident Indians (NRIs) and promised them postal ballot voting rights if they are unable to travel to their constituency.

Conclusion

Aside from accessibility concerns and technological advancements, India’s voting process requires physical presence. The voter must locate their name on the voters list and present identification. Voting by mail is the lone exemption. Immigration restrictions, however, preclude voters from utilising postal ballots to cast their ballots.

A proxy voting provision for them, which is currently only available to armed personnel, police, and government officials stationed outside of India, may also be part of a comprehensive migration policy. Under this proxy voting system, a voter may give permission to a neighbour who resides in the same polling place to cast their ballot on their behalf.

Aajeevika Bureau conducted a study that found that the ECI had excused homeless people from documentation and permitted verification through block officers. To give circular employees a voice in the government of the cities they help create, similar options might be looked into.

References

  1. https://indianexpress.com/article/explained/postal-ballots-political-controversy-explained-6495861/
  2. https://thewire.in/rights/postal-ballot-votes-migrant-workers
  3. https://www.thehindu.com/news/national/allow-postal-ballot-for-migrant-workers-rights-groups-tell-ec/article32124659.ece
  4. https://www.thehindu.com/opinion/editorial/remote-voting-the-hindu-editorial-on-postal-ballot-for-nris/article66096200.ece
  5. https://www.livemint.com/news/india/these-persons-can-vote-through-postal-ballot-ec-list-here-11642410818337.html

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:

https://t.me/lawyerscommunity

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.

LEAVE A REPLY

Please enter your comment!
Please enter your name here