In January, The Times of India newspaper started a #LostVotes campaign ahead of the upcoming general elections. It advocates the cause of those who were not able to vote in the last Lok Sabha elections because they were not living in places where they were registered as voters.
The campaign claims that 281 million registered voters did not vote in the 2014 elections, and that many of them did not do so because they were people on the move. These would include voters who move in search of work or for higher education, those who shift from city to city on work every few months, and those who migrate after getting married. The campaign highlighted the need for electoral reforms to help these voters to vote “on the move”.
While the campaign’s effort to push for electoral reforms can be appreciated, it fails to acknowledge that there is an existing legal framework in India through which a voter’s name can actually be transferred from one constituency to another. By glossing over this fact, the campaign leads the newspaper’s readers to believe that they lose the “right to vote” once they relocate.
This is not true. The Election Commission of India has processes in place, both physical (in-office) and online, to have the name of a voter transferred from the electoral rolls of one constituency to another.
However, the process is cumbersome and needs reform to make it user-friendly. For instance, there are no fixed timelines as to how long the Electoral Registration Officer will take in transferring an applicant’s name to another constituency. There is no clear appeal mechanism either. Even the toll free number for voter education published on the Election Commission’s website rarely connects, further hindering eligible voters from getting the information they need.
This is why to bring about genuine reform, the #LostVotes campaign should have focused on what the existing system is and what exactly needs to be changed.
Existing debates on these campaigns have suggested that India could look at countries like Germany, Australia, Estonia, the United Kingdom and the Netherlands, who allow migrant voters, domestic or overseas, to vote through postal ballots or a proxy (when a voter authorises someone they trust to vote on their behalf).
These two methods exist in India too but the option to exercise this is extended only to members of the armed forces, overseas government officials and other specified defence categories.
The reason these options have been made available only to service personnel so far is because military personnel number 4 million (both active and reserved) and comprise only a small part of the country’s total voter base. If postal ballots are extended to all domestic migrant voters – who number several millions more – the Election Commission of India will need to hire almost 10 or even 50 times of its current employee strength to process these ballots.
Apart from logistical problems, in the case of postal ballots, it is also difficult to ensure that the voter who cast the ballot did so out of their free will and was not coerced into voting for a particular candidate. Unlike polling stations where there are police personnel guarding the voter to ensure they cast their secret ballot free from coercion, a person casting a postal ballot does not have the same protection.
Additionally, in the case of proxy voting, there is no method to ensure that the proxy casts the correct vote because the ballot is secret. Neither is there any legitimate ground for action against the proxy if that person did not cast the correct vote.
Despite these problems, a Bill is pending in Parliament seeking to allow overseas voters to cast their vote through a proxy. This Bill has its own set of problems. For one, it supports the unequal treatment of different migrants by only making provisions to vote via a proxy for Indians residing abroad and not domestic migrants.
Right to vote: A fundamental right?
After the Lost Votes campaign was launched, a petition was filed in the Supreme Court in January, seeking a direction to the Election Commission of India to accommodate migrant voters wanting to exercise their franchise. But asking for such electoral reforms on the premise that the “right to vote” is a fundamental right is not a valid argument.
Fundamental rights – the basic civil rights and liberties of people – cannot be taken away from them under any circumstances. During an Emergency, for instance, people will continue to have their fundamental rights, but their statutory rights – those derived from Acts of Parliament – may be suspended.
Additionally, the “right to be registered as a voter” and the “right to vote” are two different concepts. The right to be registered as a voter flows from the constitutional principle of universal adult suffrage, and is a constitutional right. But not all constitutional rights are fundamental rights, and this one is not.
The right to vote flows from the Representation of People’s Act 1951, hence it is a statutory right and not a fundamental right either.
#LostVotes: A lost cause?
Over the years, many petitions have been filed before the Supreme Court arguing for the rights of domestic migrants. The Election Commission too, has constituted committees with government officials to deliberate on matters relating to voting and registration for Non-Resident Indians and domestic migrants. But it is unclear what the outcome of these deliberations has been.
With regard to the numbers quoted by the Times of India campaign, it may be true that 281 million registered voters did not vote in the last general election, but it is difficult to say with certainty that all, or even most of them, did not vote because of their inability to do so owing to migration. Many of these registered voters would have not exercised their franchise due to apathy.
The right to be registered as a voter and the right to vote comes with a correlating democratic duty to ensure that one’s name is transferred to the right electoral roll upon migration. Citizens do not lose their rights when they migrate, but they need to be educated on what needs to be done to transfer their voter registration when they do so.
Shonottra Kumar is a Legal Researcher at Nyaaya, an initiative of Vidhi Centre for Legal Policy.