Opinion - Leader Page Articles

Overseas citizen: a horse with no name

It is astounding that citizens of India living abroad still do not have the right to vote. We are not talking about the pseudo Indian junta: the ‘Mega’s (Megha) and the ‘Mayer’s (Mayur) of America who we euphemistically term ‘persons of Indian origin’ or ‘overseas citizens of India’ in order to cajole foreign investment. This is about those who identify culturally, politically and socially with everything Indian: from Slumdog Millionaire’s Oscar euphoria to Mumbai’s terror catharsis; from the nearest Punjabi dhaba in New York or ‘Bombay club’ in Boston to the Indian media and entertainment industry made available by the Internet.

Strikingly, it is these citizens, many of whom are still registered on the electoral rolls in their home States, who are rendered nationless, nameless and politically redundant when they are told by the Indian consulates and embassies abroad that only bureaucrats and government officers are entitled to postal ballot. Most countries permit their overseas citizens to vote either by post, proxy or in person at the nearest consulate.

Let us leave aside for a moment the citizens who aspire to live out in a foreign land, and to eventually forfeit Indian citizenship in favour of ‘greener’ pastures. Astonishingly, even impecunious students who left India less than a year ago on the faith of scholarships and loans, and others who left only temporarily in search of financial fulfilment but look to India as their homeland to which they aspire to eventually return don’t have the right to vote while abroad. While some of them might be registered on the electoral roll and are therefore theoretically entitled to vote, the law expects them to spend handsome sums of money to travel to their homes for a day, in the backdrop of the present financial meltdown, in order to vote in person.

Is this requirement reasonable? Think not only of the elite citizens of India overseas: the lawyers and investment bankers of New York, Hong Kong and Singapore earning six-figure salaries while sipping Starbucks coffee at offices cast in glass and marble but also of unskilled workers who set forth to Dubai and Malaysia in search of a marginally higher income to support their families back home.

For a nation that seeks to establish itself as a progressive international financial power, one that seeks potentially to open the metaphysical doors to the east, with its face to the west, the manner it disenfranchises its non-resident citizens is starkly regressive. According to a study posted on the website of the Ministry of Overseas Indian Affairs, dated December 2001, there are approximately 3.9 million citizens residing overseas, which one suspects is an understatement. And even for these 3.9 million Indian citizens, the upcoming general elections will symbolise stark political abandonment.

Dual citizenship and voting right of those who have either forfeited or who intend forfeiting Indian citizenship may deserve a deeper policy analysis, as essentially political, philosophical or relational questions. However, the citizens whose names are still on the rolls in their residential constituencies, who left India temporarily, and who intend to return ought to be constitutionally entitled to vote.

Even the electoral law — the Representation of the People Act, 1950 — recognises that citizens who leave their ‘ordinary residence’ temporarily are not disqualified from voting.

India is one of the few countries which still denies its overseas citizens the right to vote. The United States, the United Kingdom, Canada, Australia, Brazil, South Africa, New Zealand, Japan, France, Italy, Switzerland, Poland, Estonia, Ecuador, Germany, Belgium, Finland, Luxembourg, Portugal, Spain, Argentina, Colombia, Peru, Honduras, Venezuela, the Philippines and Singapore allow their citizens overseas to vote. Many of these countries allow their overseas citizens to vote as long as they have not been abroad for more than a certain period, usually three to five years, and who “intend to return.” The “intent to return” requirement is not really supposed to be enforced since intentions and aspirations constantly change. Rather, the requirement enables the citizens overseas to ‘opt out’ of the voting and other citizenship rights by declaring categorically that they do not intend to return.

Many of these countries allow their citizens who have permanently taken up residence or citizenship in foreign countries with no intent to return, to vote in the national (and sometimes State or local) elections. The right to vote is framed as a relational proposition rather than a constitutional one, that is, these countries wish their diaspora to retain relational ties with their homeland on the principle that such ties will ‘enrich’ their society (and, needless to say, their treasury).

In India, a bill has been pending in Parliament to enfranchise citizens overseas for several years, but it is yet to become law. Our courts have adopted the stance that voting is not a fundamental right but a statutory right. It ignores the reality that statutory rights can be repealed. It is not entirely untenable to make the claim that the right to vote is a ‘fundamental’ right, deserving of a higher level of protection and scrutiny. Consider the freedom of speech guaranteed by our Constitution: voting enables citizens overseas to express a political opinion, the ‘core’ or essence of the free speech right, cast in the outward trappings of the ballot paper. Or consider the right to association: voting enables overseas citizens to express their solidarity with an electorate with which they identify socially, culturally and politically. But perhaps the most striking right infringed by the present statutory matrix is the right to equality: bureaucrats stationed overseas are entitled to vote by postal ballot, but ordinary citizens overseas are denied the ‘privilege.’ Are government officers entitled to a ‘superior’ right to vote?

There also exists a contrary view in the overseas voting debate which must be addressed: the view that allowing so many Indian citizens to vote overseas is ‘bad economics.’ It is claimed that the electoral process is a strain on the economy, and giving citizens abroad the right to vote would only make matters worse. After all, none of the countries mentioned above, which allow their citizens to vote overseas, has even a fraction of India’s mammoth population to factor into its electoral thought process. This argument is entirely correct — but it is also entirely unconstitutional. Many rights do not make sense when viewed through a pure but somewhat skewed ‘economics’ prism: the right to religion (the opium of the people), the right to free speech (the harbinger of dissent), the right to a clean environment (the bane of development) — all of these seem to make bad economic sense, and to pose hurdles to development. In this sense, democracy itself makes bad economic sense.

But financial arguments and constitutionalism do not necessarily coincide. At the heart of India’s constitutional consciousness lies a Rawlsian ideal: the ideal that the rights of even a single individual are inviolable as against the collective. The ‘economics’ argument made against overseas voting can as easily be applied to domestic voting: India does spend enormous sums on conducting elections. Does that mean we should do away with the elections? If not, can we arbitrarily deny one group of citizens its right to vote, only because of its geographic detachment? Can the size of India’s population justify giving some citizens preferential rights over others? In India, as in some other democracies, the state has an affirmative duty to make rights meaningful, a duty which ought to extend to making it possible for citizens temporarily resident overseas to vote, without requiring them to burn a hole in their pockets.

Besides, the ‘economics’ argument obscures the enormous benefits that the overseas citizens bring to India in terms of both their investments and socio-economic ties with their families back home. In this sense, giving them a vote doesn’t seem to be economically impractical. Additionally, an overseas voting mechanism can find ways of placing the burden of casting the vote on the overseas citizen. Till such time India is financially able to allow its citizens overseas to vote, their marked absence on the (electronic) ballot box is an ignominy.

(The writer is a graduate student at Harvard Law School, former law clerk to a Chief Justice of India, and citizen of India.)

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