By Mitali Karwa, O.P. Jindal Global University, Haryana.

After India achieved its independence on 15th August, 1947, an elected Constituent Assembly was set up to frame the Constitution. Most of the Articles of the Indian Constitution came into force on 26th January 1950, which is celebrated as the Republic Day of India. Some of the Articles which contained provisions like citizenship came into force on 26th November, 1949 itself, the date on which our Constitution was drafted. The provisional Parliament enacted The Representation of People Act in 1951 for the first general elections that were conducted on 25th October, 1951.

This Act of Parliament of India is to provide for the conduct of elections of the House of Parliament and to the House or the Houses of the Legislature of each State, the requirements for the qualification and disqualification to gain membership of those Houses, the tainted activities and other offences in connection to such elections and the judgement regarding doubts and conflict arising out of or in connection with elections in India. This Act was executed under Article 327 of the Indian Constitution. Since 1951, the Act has been amended several times. Some of the significant amendments were done in the years 1966 and 2013.

The Representation of the People (Amendment) Act, 1966 transferred the election petition to the High Court, whose orders can be appealed in the Supreme Court and abolished the Election Tribunals. Nonetheless, conflicts related to the election of President and Vice-President are directly heard by the Supreme Court. The Representation of the People (Amendment and Validation) Act, 2013, stated that a person can file nomination for an election even if he is in police custody or in jail, till his name is mentioned in the electoral roll.

During the 2017 Winter Session of the Parliament, the Government introduced the Representation of the People (Amendment) Bill, 2017. This amendment intends to exclude Section 20A of the Representation of the People Act, which provides for registration and inclusion of overseas electors in their electoral rolls. The Registration of Electors Rules, 1960, mandates the overseas electors to exercise their franchise in person at their respective polling booth. Thus, these rules necessitate for the physical presence of the overseas electors in their specified polling station in India, which in turn causes a lot of hardships to the overseas electors on the day of polling. This provision anticipates to facilitate an external mode of voting, that is, voting by means of proxy. According to this provision of the Representation of the People (Amendment) Bill, 2017, overseas electors of India, who are authorised to vote on the polling days in India, can arrange a proxy voter who can cast their vote on their behalf. Moreover, the overseas Indian would be permitted to use the preference of proxy, which was only available to the service personnel till now.  

This particular provision of the proxy voters also has some possible drawbacks, as it threatens the very core of democracy, since special treatment violates the fact that there are more domestic migrants who also strive to have voting rights at their home. It may also happen that the proxy voter may cast a vote for a candidate whom the overseas Indians do not wish to vote for. There is no guarantee that the NRI voters will exercise their voting right in a free and fair manner because there is no check on coercion or inducement by the employers of those overseas Indians. There is no limit on the number of votes a proxy could cast in an election and additionally, there is no assurance that the votes of the so-called proxy would not be sold.

The decision of the government to allow the NRIs to vote from overseas could emerge as an influential force in the electoral politics of the Country as there are about 114 other countries wherein this system of voting is followed.

Another provision in the Amendment Bill is related to the spouses of the service voters. Till now, as per the Electoral Law, an Army man’s wife was permitted to be enrolled as a service voter, but a woman Army officer’s husband was not. The Bill recommends to replace the term ‘wife’ with ‘spouse’, therefore making the provision gender neutral. Members of the Armed Forces, personnel of State Police Forces posted outside their State, Central Armed Police Forces and employees of the Centre posted outside India are qualified to be registered as Service Voters. But according to the Election Commission website, children and other relatives residing with a service voter cannot be signed up as service voters.

The Representation of the People (Amendment) Bill, 2017 is hoped to bring a significant reform in the exercise of the Right to Vote, which is a statutory right, as it will make the the election procedure more secular. The provision of replacing the word “wife” with “spouse” speaks about the development in the psychology of the society as a whole. Another provision entailing choosing a proxy voter to perform the polling rights will show us the actual reality and will make us aware about the psychology of people of the concerned polling area. But as discussed above, if these possible drawbacks will not be monitored, controlled or terminated, the main purpose of the Representation of the People (Amendment) Bill, 2017 will turn out to be futile and can further lead to hampering of the representation of the ground reality.