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IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION (CIVIL) NO.

of 2014

IN THE MATTER OF

Dr. Shamsheer V.P. Versus Union of India & Anr

Petitioner

Respondent

PAPER - BOOK (FOR INDEX KINDLY SEE INSIDE)

Advocate for the Petitioner:- Mr. R. S. Jena

INDEX Sl. No. Particulars Page

1. 2. 3. 4.

Listing Performa Synopsis and list of dates Writ Petition with Affidavit Annexure P1 A true copy of the amendment bill to the Representation of peoples Act is attached herewith and marked as

5.

Annexure P2 A true copy of the statement reported in the economic times in the January 2010 is attached herewith and marked as

6.

Annexure P3 A true copy of the order passed by this honble Court in W.P. No. 193 of 2010 dated 19.7.2010 is attached herewith and marked as

7.

Annexure P4 A true copy of the notification dated 22.9.2010 bringing into force of the Representation of Peoples Amendment Act , 2010 is attached herewith and marked as

8.

Annexure P5 A true copy of the order dated 24.2.2014 in SLP No. CC 3148 of 2014.

9.

Annexure P6 A true copy of the representation dated 27. 2. 2014 issued by the Petitioner to the Prime Minister.

10.

Annexure P7 A true copy of the hand book Issued by International Institute for democracy and Electoral Assistance

SYNOPSIS That the Petitioner is filing the present Writ Petition in public interest under Article 32 of the Constitution of India for the enforcement of his fundamental rights guaranteed under Article 14 , 19 and 21 of the Constitution of India and seeks a writ in the nature of mandamus to read down Section 20A of the Representation of Peoples (Amendment) Act, 2010 No.36 of 2010 so as to allow the Non Resident Indians(NRIs) working abroad to cast their vote from the place of employment. It is submitted that though the intention behind the amendment Act was to allow the NRIs to vote from abroad, Section 20A has placed an

unreasonable restriction in as much as the NRIs have to be physically present in their respective constituencies at the time of Elections. Therefore, the object for which the amendment was brought about has been defeated by the said provision. It is submitted that as per the Ministry of Overseas Indian Affairs own data, 1,00,37,761 Indians reside abroad as on May, 2012 and is

entitled to vote. But only 11000 NRIs have enrolled as voters in the electoral list. This is because of the unreasonable restriction placed on the NRIs by the amending provision Section 20A. If the relief as sought for by the Petitioner is granted, then a total number of 1,00,37,761 people will be entitled to cast their vote as against a paltry 11000 who has registered. It is therefore submitted that Section 20A directly violates Article 14 of the Constitution of India.

The Petitioner herein is a Doctor by profession. The Petitioner migrated to the UAE 12 years ago prior to which he was enrolled as a voter in his hometown of Calicut , Kerala and as such had voted in the elections. Subsequently he was removed from the voters list because of his NRI status.

The Petitioner has got 9 hospitals in the UAE and a pharmaceutical manufacturing unit. Around 5600 people work with him of which 3600 are Indians.

The Government of India has awarded its highest civilian honour to the NRI - the Pravasi Bharatiya Samman to the Petitioner for his outstanding services provided in the field of medical services. For the convenience of this Honble Court, the history behind the provisions is placed for its kind consideration. It is submitted that prior to the amendment, Section 19 and 20 of the Act read thus: 19. Conditions of registration- Subject to the foregoing provisions of this part, every person who(a) Is not less than 18 years of age on the qualifying date , and (b) Is ordinarily resident in a constituency, Shall be entitled to be registered in the electoral roll for that constituency. Section 20. Meaning of ordinarily resident-(1) A person shall not be deemed to be ordinarily resident in a constituency on the ground only that he owns ;or is in possession of , a dwelling house therein.

(1A) A person absenting himself temporarily from his place or ordinary residence shall not by reason thereof cease to be ordinarily resident therein. (1B)..... (2)..... (3).... (4)..... (5) ..... (6) ..... (7) If in any case a question arises as to where a person is ordinarily resident at any relevant time, the question shall be determined with reference to all the facts of the case and to such rules as maybe made in this behalf by the Central

Government in consultation with the Election Commission. In view of the fervent requests of many NRIs resident abroad who were interested in the

political process in the country the legislature thought it prudent to amend the Act so as to allow the large number of Indians resident abroad to

exercise their right to vote. It is submitted that legislature in the statement of objects and reasons in the amendment bill has recognised the fact that the right to vote is a legitimate right and would facilitate the process of allowing the NRIs to join the democratic process. In view of the same, the Parliament vide the Representation of the peoples (Amendment ) Act,2010 No. 36 of 2010

introduced Section 20A into the Act. Section 20 A of the Act reads as follows: Section 20 A(1) : Notwithstanding anything

contained in this Act, every citizen of India(a) Whose name is not included in the

electoral roll; (b) Who has not acquired the citizenship of any other country ;and (c) Who is absenting from his place of

ordinary residence in India owing to his employment , education or otherwise

outside India(whether temporarily or not) Shall be entitled to have his name

registered in the electoral roll in the constituency in which his place of

residence

in India as mentioned in his

passport is located. (2) the time within which the name of persons referred to in sub-section(1) shall be registered in the electoral roll and the manner and procedure for registering of a person in the electoral roll under subsection (1) shall be such as may be prescribed. (3) every person registered under this section shall, if otherwise eligible to

exercise his franchise , be allowed to vote at an election in the constituency.

It is the humble submission of the Petitioner herein, that the provision when read enjoins upon the NRI who wishes to cast his vote to be present in his constituency at the time of the elections. It is submitted that the provision does not allow for the utilization of external voting methods which are in use across the world. The procedure laid down by the prevalent law is that the NRI who wishes to register/enrol has to

fill the prescribed form 6A before the electoral Registration Officer/Assistant Electoral

Registration Officer of his constituency where he ordinarily resides in India. This registration can be done either in person, by post or even online .Despite this being the procedure adopted for registration, for the purpose of actually exercising his franchise, the registered NRI voter will have to be personally present to cast his vote at the polling station in his constituency. As per the Ministry of Overseas Indian Affairs own data, 10037761 reside abroad as on May, 2012. It is submitted in light of this requirement, it paints the entire process of empowerment as a farce as the intention behind the law cannot be fully exercised. Further, the law as it stands today, creates an inequality between the different economic demo graphs of Indian is citizens of living Article abroad 14 of and the

therefore

violative

Constitution of India.

Therefore, even if a tiny portion of these NRIs register, actually having to to return vote is to their

constituency impossible.

personally

literally

As a result, this forward thinking progressive legislation has been turned into merely an

impractical gesture. In consideration of this, what needs to be done is realisation of the rapidly porous borders being created as a result of cultural, professional and social globalization. Citizens no longer feel the need to stay within their own countries and consider exploring the world for the purpose of jobs and even education. It is submitted that vide the amendment, the Parliament has recognised the fact that NRIs stand on a different footing and has therefore removed the requirement of having to be ordinarily resident in the Country. However, this amendment is deemed ineffectual inasmuch as the concomitant procedures attached to it require the NRIs to be personally present in the constituency during voting. It is submitted that the only way to remove this defect would be to

modify the procedure attached to the legislation so as to enable NRIs to vote from their present location . This flows from the fact that Article 14 of the Constitution enjoins upon laws to treat

similarly situated people equally and differently situated people differently. The law as it stands treats NRIs on the same footing as citizens resident in India. It is the humble submission of the Petitioner herein that the present law impliedly treats

persons on a different footing based on economic classifications. For example, a well to do business man living abroad would have the financial ability to travel to India to vote whereas a migrant labourer would not. This runs entirely anathema to the intent of the Constitution as enshrined in Article 14. Further, Article 326 which pertains to the elections to the house of the people as well as legislative assemblies of States does not allow for the classification of voters along financial lines.

For this purpose it is necessary to recognise the different broad based categories of NRIs and emigrants: 1. Migrant workers. 2. Individuals in professional groups. 3. All of the citizens living abroad whether temporarily or permanently. As per estimates from a study of the International Organization for Migration conducted in 2005, around 190 million people across the globe lived in a country which is different from the one in which they were born. Taking into focus the present law, although the number of migrant Indian workers far outweigh the number of citizens of India in

the other groups, due to the procedural bottleneck almost all of them will not have an opportunity to vote. It is the submission of the Petitioner that for a vast majority of the NRIs, working in a foreign country is not a matter of choice. Most NRIs are forced to leave their families and travel to far away countries owing to reasons including lack of employment home states. opportunities in their respective

This unfortunately is a reflection of the fact that the alternate, more viable options of exercising franchise externally have not been appropriately analysed prior to passing of the bill and framing the rules. In view of the same, it would be necessary to examine the various manners in which other countries which extend this essential right of external voting allow their citizens to place their vote. As per a report issued by International Institute for Democracy and Electoral Assistance out of the total 114 countries that have adopted external voting , 20 Asian Countries are included. These 114 countries have adopted numerous methods for enabling the external voter to cast their votes. A few of the viable options available are: 1. Personal voting: Here the external voters cast their vote in pre-designated polling booths in diplomatic missions set up abroad. 2. Postal Voting: Here the external voter fills out a ballot paper and posts the same to a

pre-designated polling station in their home country via regular post. 3. Proxy Vote: Here the external voter is

allowed to inform a family member or preappointed person of their choice and the aforementioned appointed person is allowed to cast the vote on behalf of the external voter. 4. Electronic Voting: here the external voter uses electronic means like telephone or computers to cast their registered vote. 5. Of these options available, a number of countries have adopted either one or even two methods so as to make the process of casting a vote easier. Therefore it is deemed necessary that these options were previously studied for the purpose of considering its viability before landing on the one which is currently prevalent in our country. It is our humble submission that in light of the fact that the need for the actual presence of the voter in the constituency at the time of voting is not the sole method which may allow an

external voter to exercise his/her franchise, it is incumbent on the legislature to research,

analyse and choose one or more methods so as to make the process more accessible rather than restrictive. It is the humble submission of the Petitioner that considering the nuances of the issue, it is absolutely imperative that a detailed study be conducted so as to analyse the most

appropriate external voting mechanism which would allow for the most coverage of the law. It is the humble submission the Petitioner herein that another writ petition being W.P.No .... of 2014 (Rajeev Chandrashekhar vs. Union of India)has been filed and notice has been issued wherein the question pertains to the right of members of the armed forces being allowed to vote at their place of deployment. It is submitted that the present writ petition raises a similar question.

LIST OF DATES The Petitioner herein is a Doctor by profession who runs a chain of hospitals in the UAE. The Government awarded its of India has civilian

highest

honour to the NRI which is the pravasi bharatiya award to the Petitioner for his outstanding

services provided in the field of medical services.

February 2006

The

amendment

to

the

representation of peoples act bill was introduced in the Rajya

Sabha in February, 2006 which seeks to give voting rights to Indian Citizens living abroad due to employment as well as

educational purposes. August 2006 The parliamentary standing

committee gives its report on the bill referred to it.

January,2010 The makes

Honble a

Prime

Minister that the to

statement was bill

government introduce a

planning in the

next

session of parliament to give voting rights to NRIs. 4.5.2010 A writ petition being W.P.No. 193 of 2010 is filed by one Ahammed Adiyottil seeking the striking down of Section 19 and 20 of the Act representation 1950 as of

peoples

being

discriminatory. 19.7.2010 This Honble Court allows the Petitioner to withdraw the writ in view of the fact of that the

Representation

Peoples

Amendment Bill, 2006 is pending before the parliament. 22.9.2010 Section 20A of of peoples the act

representation

comes into force on 21.9.2010 wherein NRIs residing abroad

are given the right to vote. 24.2.2014 A special leave petition being SLP No. CC 3148/2014 is filed by one Rajesh the Chandrashekar rights of armed

wherein

forces to cast their vote from their place to of be deployment affirmed. is

sought

This

Honble Court was pleased to issue notice in the matter.

IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION (Civil) No IN THE MATTER OF Dr. Shamsheer V.P. , S/o. P.K. Hashim, Residing at P.B. No. 94666, Abu Dhabi, U.A.E. Versus 1. Union of India Respresented by Secretary Ministry of Overseas Indian Affairs Akbar Bhawan ,Chanakyapuri New Delhi 2. Chief Election Commissioner Election Commission NirvachanSadan ,Ashok road New Delhi . Respondents ..Petitioner of 2014

PETITION UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA To The Honble Chief Justice of India

And his other companion Judges Of the Honble Supreme Court of India The humble Petition of the Petitioners above names. Most respectfully showeth 1. That the Petitioner is filing the present Writ Petition in public interest under Article 32 of the Constitution of India for the enforcement of his fundamental rights guaranteed under Article 14 , 19 and 21 of the Constitution of India and seeks a writ in the nature of mandamus to read down Section 20A of the Representation of Peoples (Amendment) Act, 2010 No.36 of 2010. 2. That the facts leading to the filing of the present petition are as follows: 2.1 The Petitioner herein is a Doctor by

profession who runs a chain of hospitals in the UAE. The Government of India has awarded its highest civilian honour to the NRI which is the pravasi bharatiya award to the Petitioner for his outstanding services

provided in the field of medical services.

2.2 The amendment to the representation of peoples act bill was introduced in the Rajya Sabha in February ,2006 which seeks to give voting rights to Indian Citizens living abroad due to employment as well as educational purposes. A true copy of the amendment bill to the Representation of peoples Act is attached herewith and marked as Annexure P1(page 2.3 The parliamentary standing committee in the month of August 2006 gives its report on the bill referred to it. 2.4 The Honble Prime Minister in January 2010 makes a statement that the government was planning to introduce a bill in the next session of parliament to give voting rights to NRIs. A true copy of the statement reported in the economic times in the January 2010 is attached herewith and marked as Annexure P2(Pages 2.5 A writ petition being W.P.No. 193 of 2010 is filed by one Ahammed Adiyottil seeking the

striking down of Section 19 and 20 of the representation of peoples Act 1950 as being discriminatory. 2.6 This Honble Court vide its order dated 19.7.2010 in W.P. No. 193 of 2010 allows the Petitioner to withdraw the writ in view of the fact that the Representation of Peoples

Amendment Bill, 2006 is pending before the parliament. A true copy of the order passed by this honble Court in W.P.No. 193 of 2010 dated 19.7.2010 is attached herewith and marked as Annexure P3(Pages 2.7 Vide notification dated 22.9.2010 in the official Gazette Section 20A of the

representation of peoples act comes into force on 21.9.2010 wherein NRIs residing abroad are given the right to vote. A true copy of the notification dated 22.9.2010 bringing into force of the Representation of Peoples Amendment Act , 2010 is attached herewith P4(Pages and marked as Annexure

2.8 A special leave petition being SLP No. CC 3148/2014 is filed by one Rajesh

Chandrashekar wherein the rights of armed forces to cast their vote from their place of deployment is sought to be affirmed. This Honble Court was pleased to issue notice in the matter vide its order dated 24.2.2014. A true copy of the order dated 24.2.2014 in SLP No. CC 3148/2014 is attached herewith and marked as Annexure P5(Pages

2.9 The Petitioner herein sends a representation to the Honble Prime Minister of India seeking his kind intervention in the matter. A true copy of the representation dated 27.2.2014 issued by the Petitioner to the Prime Minister is marked a Annexure P6(Pages 2.10The International Institute for Democracy and Electoral Assistance, an intergovernmental organization issues a handbook for the

purpose of providing information with regard to various forms of external voting and

different methods adopted by countries . A true copy of the hand book issued is attached herewith P7(Pages 3. GROUNDS and marked as Annexure

3.1 It is the humble submission of the Petitioner that the law allowing NRIs to vote as it

stands now runs anathema to Article 14 ,19 and 21 of the Constitution. 3.2 It is the submission of the Petitioner that the law is not in consonance with the objects and reasons behind promulgating it. It is the humble submission of the Petitioner that the purpose of providing for the law was in view of the fact that the parliament recognised the legitimate constitutional right of all NRIs to join the democratic process in the country. This has been reflected in the Statement of Objects and reasons shown in the bill. It is submitted when the intent is put in context of the implementation of the law, the result has been disappointing as it there is no practical basis for enjoining upon the NRI voters to

have to return to the constituency to cast their vote. 3.3 It is submitted that the Section 20A of the Act discriminates against persons who reside abroad for the purpose of employment as they would not be able to return to their constituency for the purpose of casting their vote. 3.4 It is the humble submission of the Petitioner that the law as it stands today treats NRIs of different economic strata on different footing. As a result of the present law, a deep divide is created amongst the NRIs between the haves and the have nots. It is submitted that the law allowing NRIs to vote would be applicable only to financially stable persons living abroad and not those who do not have the financial ability to return to their

homeland for the purpose of casting their vote. 3.5 It is the humble submission of the Petitioner that there has not been any consideration of the various alternative methods which are

available and are even utilised by other countries for the purpose of allowing external voting. 3.6 It is submitted that in total 114 countries have adopted external voting , 20 Asian Countries are included. These 114 countries have adopted numerous methods for

enabling the external voter to cast their votes. It is submitted at present , the following forms of external voting are in use today: a. Personal voting: Here the external voters cast their vote in pre-designated polling booths abroad. b. Postal Voting: Here the external voter fills out a ballot paper and posts the same to a pre-designated polling station in their in diplomatic missions set up

home country via regular post. c. Proxy Vote: Here the external voter is allowed to inform a family member or preappointed person of their choice and the aforementioned appointed person is

allowed to cast the vote on behalf of the external voter. d. Electronic Voting: here the external voter uses electronic means like telephone or computers to cast their registered vote In light of these other viable options, it follows that appropriate studies were

conducted for the purpose of choosing which form of external voting would most suit our needs. 3.7 It is the humble submission of the Petitioner that a country like Senegal, in Africa is one which has a significant this expatriate expatriate

community.

Further,

community is responsible for large amounts of remittances back home and play a major role in financial stabilisation. It is submitted that Senegal as a result has adopted external voting measures by setting up polling

stations in different countries where their communities live so as to facilitate voting . 3.8 It is submitted that the present method used is the least viable option as it is practically

impossible for all NRI voters who wish to exercise their right to adult suffrage to travel all the way back to India to cast their vote. 3.9 It is submitted that NRIs remain to be citizens of the Country and in light of this fact it is incumbent upon the Government to provide to them the same rights and

freedoms enjoyed by citizens that remain present in India. 3.10 It is submitted that this Honble Court has held in a catena of decisions that the right to participate in democratic process in

irrefutable and therefore the present law treating citizens of the country on a different footing based on financial considerations is violative of Article 14. Further , the denial of the right to exercise the right to vote is violative of Article 19(1) as well as Article 21 of the Constitution of India. 3.11 It is the humble submission of the Petitioner that on a reading of Article 326 of the Constitution, it provides for all citizens of the country -unless expressly disqualified for any

reason- the right to vote. In light of the fact that NRIs have now been given the right to do so , it is imperative that all NRIs enjoy the said benefit rather than a class of wealthy few . PRAYER Therefore, the Petitioner herein humbly prays that this Honble Court be pleased to call for the records of the proceedings and be

pleased to (a) Issue an appropriate writ, direction or order in the nature of the mandamus and read down the Amendment to the Representation of Peoples Act , 2010 (Section 20A) as being violative of Article 14 of the Constitution of India in as much as it doesnot allow the NRIs to vote from the place of employment., (b) Issue an appropriate writ , direction or order in the nature of mandamus directing the Union of India to set up a committee to study the various available options for the purpose of external voting ;

(c)

Issue such other writ order or direction, as deemed fit in the circumstances of the case in the interest of justice.

FOR WHICH ACT OF KINDNESS THE HUMBLE PETITIONER SHALL AS IN DUTY BOUND EVER PRAY. DRAWN BY` (Haris Beeran) Advocate FILED BY (R.S.Jena) Advocate for the Petitioner

New Delhi Drawn On :: 3 .3.2014 Filed On :: 15.3.2014