Month: July 2021

Voting Rights in India to Non-Resident Indians

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Introduction

Human Rights are the most basic rights and are to be exercised by all human beings irrespective of the place they belong. However, emigrates are denied the most democratic right – the right to vote. The right to vote encourage political participation and enables the citizens to keep a check on the government. Also, the right to vote empowers to influence governmental decisions and policies. The UDHR (Universal Declaration of Human Rights) provides that everyone has the right to take part in governing his country. The ICCPR (International Covenant on Civil and Political Rights) provides that every citizen has the right and the opportunity to participate without any unreasonable restrictions in the conduct of public affairs to vote. The election shall be held by secret ballot guaranteeing the free expression of the voter’s will.

An NRI elector is a person who is a citizen of India and resides outside India due to education or employment but has not acquired citizenship in any other country. He is eligible to be registered as a voter in the constituency of his native place in India. Now, who is eligible to be registered as a voter? A person who has attained 18 years of age on first January of the year in which revision of the electoral roll published finally. 

Voting Rights of NRI

Until 2010, NRIs were not allowed to cast their vote during the general elections if they reside outside India for six months under Section 19 of the Representation of People Act, 1950. To crystallize voting rights for the NRIs, the government brought the Representation of People (Amendment) Act, 2010, and Section 20 (A) was inserted. The section states that if an NRI deemed to an ordinary resident, he is allowed to join the electoral rolls. However, an NRI voter needs to be physically present in the constituency to vote according to this Act.

Background

The Election Commission began to look for options to permit NRIs to vote from abroad after receiving lots of requests including, the Ministry of Overseas Affairs and Naveen Jindal (Industrialist, former Rajya Sabha MP). Three writ petitions from NRIs were filed in the Supreme Court by NRIs in 2013-2014. After the Lok Sabha election in 2014, a 12-member committee established to study primarily three options:- 

  1. Voting by post
  2. Online voting
  3. Voting at an Indian mission abroad

Online Voting was averted by the committee as this could compromise the secrecy of voting. Lack of adequate resources led to the proposal to vote at Indian Mission abroad to shut down. In 2015, the panel recommended NRIs the options for proxy voting and e-postal ballot apart from voting in person. The Ministry of law accepted the advice on proxy voting. 

About the Proxy Voting 

In 2017, the Union Cabinet passed the proposal on the proxy voting right. The government introduced a bill amending the Representation of the People Act, 1950. Lok Sabha passed the Bill; however, approval from Rajya Sabha was still pending when the Bill lapsed due to the dissolution of the 16th Lok Sabha. 

Now, the Election Commission suggested postal voting rights for NRIs where consent of the Parliament was not necessary. The postal voting facility can extend to the NRIs elector by amending the Conduct of Election Rules 1961. Parliaments consent is not necessary for this. 

Current Strength of NRI Voters

In 2015, the UN reported that India has the largest diaspora population of 16 million people. In comparison to the population, registration of NRI voters is very low; according to the Election Commission, approx 1 lakh NRIs registered as voters in India. About 25,000 NRIs only flew to India during the 2019 Lok Sabha Election.

Kerala (89,000) reported a large number of NRI voters. The second-largest registered NRI voters were documented in Andhra Pradesh (7,500), followed by Maharashtra approx 5,500, Karnataka about 4,500, Tamil Nadu (3,200), and 2,500 in Telangana.

Postal Voting on a Pilot Basis

In December 2020, the Ministry of External Affairs and the Election Commission held a meeting where the Election Commission mentioned the countries to the government where the postal voting will introduce on a pilot basis. In this pilot, gulf countries are excluded for now as the commission does not have any facilities against the NRIs residing in the Gulf countries like the UAE, Oman, Kuwait, Saudi Arabia, and Qatar. The postal ballot pilot will carry out at first for voters settled in the United States, Australia, New Zealand, South Africa, France, Japan and Germany. 

Working of Postal Ballot

The Election Commission has presented the process for postal voting for NRI. Interested voters will have to inform the Returning Officer (RO) within five days after the notification for the election. The RO will send the ballot paper electronically on receiving information. In the Indian Mission, an assigned officer will download the ballot paper on behalf of the voters and give it to the NRI electors. The NRI voters can now mark the preference at the mission and give it back with a declarations form attested by the assigned officer in a sealed envelope.

Conclusion

The people residing abroad are also entitled to human rights including, the right to vote, as available to other citizens. Migration cannot be considered a ground to restrict any person to exercise this right. The right to vote instills a sense of responsibility and belongingness towards one’s nation. The Amendment brought in the Representation of People Act ensured the voting rights for NRIs still to enroll and vote a person needs to be physically present. Due to which a few numbers of NRI voters got registered, as a large number of people do not have enough time and money to travel back to India to cast their vote. However, the postal ballot system introduced by the government to ensure that NRIs could exercise their right to vote is a positive step towards ensuring the participation of NRIs in the elections and public affairs of the country. 

This article is written by Gracy Singh, a 2nd-year student pursuing a BA.LLB (Hons.) from Mody University of Science and Technology, Lakshmangarh, Rajasthan.

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Lakshadweep Administration’s Notice is put on Stay by Kerala High Court

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Lakshadweep Administration had issued a notice to two residents of Kavarratti Island stating that their dwelling houses are to be demolished as it is not a legal construction as its constructed with diversion certificate as per Laccadive Minicoy and Amini Islands Land Revenue and Tenancy Regulation. Being aggrieved by such order of administrative authority the two residents have filed a Petition in Kerala High Court It was submitted in the Petition that such act of authorities is not in due process of law.

The Respondent stated that the dwelling houses are within 20km from the High Tide line which is a non-development zone. Replying to which petitioner stated that the area sometimes differs during high tide so no straitjacket formula could hence be applied to identify the distance of building from high tide.

During the hearing, the petitioner states that the “diversion certificate” is only applicable to the lands where the government has an absolute title and the petitioners dwelling houses were constructed by their ancestors in 1960 and 1963 and not an allotted land so asking for a diversion certificate is beside the point. Petitioner also points out a similar act done by the administration in which such notice was issued to the fisherman and demolished that area and they trying to do the same with the petitioners as well.

Currently, the high court bench comprising of Justice Raja Vijayaraghavan has put a stay on the notice issued by the Lakshadweep Administration to demolish the Dwelling of Traditional Coastal Communities.

-Report by RIDDHI DUBEY

The Court Upholds “Constitutional Validity” of TRAI’s Tariff Order Barring One Condition

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The Bombay High Court upheld the constitutional validity of a tariff order passed by the Telecom Regulatory Authority of India (TRAI) in January 2020 which had prescribed price celling’s on the charged by television channels but struck down one condition which said the price of a single channel cannot be more than one-third of the highest priced channel in that bouquet.

A bench of Justices Amjad Sayyed and Anuja Prabhudessai passed the judgment on a bunch of petitions filed by several broadcasters, like the Indian Broadcasting Foundation, a representative body of TV broadcasters, the Film and Television Producers Union of India, Zee Entertainment Limited, and Sony Pictures Network India.

On January 1st, 2020, the Telecom Regulatory Authority of India(TRAI) Act, 1997 issued new tariff rules by which the Network Capacity Fee (NCF) price was lowered, benefitting consumers. Previously, a sum of Rs 130 was applicable for all free-to-air channels, and consumers needed to pay more to watch additional channels. After the amendments to the broadcast sector tariffs, consumers will pay Rs 130 as Network Capacity Fee (NCF) charge, however, they will be entitled to get Two Hundred channels. Changes were additionally mandated to be made within the price of individual channels.

The petitions said that the new laws were arbitrary, unreasonable and Offensive of their fundamental right. The High Court disposed of the petitions and said that The challenge to the constitutional validity of the 2020 rules and regulations of TRAI fails. One condition regarding the average pricing of a channel in a bouquet is arbitrary and hence is struck down, the court said in its judgment. As per this condition, the rates of every pay channel (MRP), forming part of a bouquet, shall in no case exceed 3 times the average rate of a pay channel of that bouquet. The petitioners requested the court to extend its earlier orders of August and October last year directing the TRAI to not take any steps against the stakeholders a few times, so that they may study the judgment and then decide their future course of action.

The court then sought to know if the other stakeholders, who have not approached the HC in a challenge, have implemented the new regulations. Senior counsel Venkatesh Dhond and advocate Ashish Pyasi, appearing for TRAI, said that the other stakeholders have already implemented the rules. Therefore, the order passed earlier asking that the TRAI not to take any coercive steps is extended for six weeks, the court said. The Telecom Regulatory Authority of India(TRAI) Act, 1997 had defended its regulation, saying it was a consumer-friendly measure and aimed at ensuring ensure transparency and non-discrimination in channel rates.

-Report by RAVINUTHALA VAMSI KRISHNA