dr.shamsheer v uoi [wp]
TRANSCRIPT
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IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTIONWRIT PETITION (CIVIL) NO. of 2014
IN THE MATTER OF
Dr. Shamsheer V.P. Petitioner
Versus
Union of India & Anr Respondent
PAPER - BOOK
(FOR INDEX KINDLY SEE INSIDE)
Advocate for the Petitioner:- Mr. R. S. Jena
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INDEX
Sl. No. Particulars Page
1. Listing Performa
2. Synopsis and list of dates
3. Writ Petition with Affidavit
4. 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 statementreported 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
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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
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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.
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(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
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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 theelectoral roll;
(b) Who has not acquired the citizenship ofany other country ;and
(c) Who is absenting from his place ofordinary 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
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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 sub-
section (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
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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 citizens living abroad and
therefore is violative of Article 14 of the
Constitution of India.
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Therefore, even if a tiny portion of these NRIs
register, actually having to return to their
constituency personally to vote is literally
impossible.
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
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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 opportunities in their respective
home states.
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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 voterscast their vote in pre-designated polling
booths in diplomatic missions set up abroad.
2.Postal Voting: Here the external voter fillsout a ballot paper and posts the same to a
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pre-designated polling station in their home
country via regular post.
3.Proxy Vote: Here the external voter isallowed to inform a family member or pre-
appointed 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 voteruses electronic means like telephone or
computers to cast their registered vote.
5.Of these options available, a number ofcountries 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
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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.
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LIST OF DATES
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.
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.
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January,2010 The Honble Prime Minister
makes a statement that the
government was planning to
introduce a bill 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 representation of
peoples Act 1950 as being
discriminatory.
19.7.2010 This Honble Court 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.
22.9.2010 Section 20A of the
representation of peoples act
comes into force on 21.9.2010
wherein NRIs residing abroad
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are given the right to vote.
24.2.2014 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.
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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. ,
S/o. P.K. Hashim,
Residing at P.B. No. 94666,
Abu Dhabi, U.A.E. ..Petitioner
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
PETITION UNDER ARTICLE 32 OF THE
CONSTITUTION OF INDIA
To
The Honble Chief Justice of India
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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 WritPetition 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 thepresent 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.
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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
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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
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different methods adopted by countries . A
true copy of the hand book issued is attached
herewith and marked as Annexure
P7(Pages
3. GROUNDS
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
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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
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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 voterscast their vote in pre-designated polling
booths in diplomatic missions set up
abroad.
b.Postal Voting: Here the external voter fillsout a ballot paper and posts the same to a
pre-designated polling station in their
home country via regular post.
c.Proxy Vote: Here the external voter isallowed to inform a family member or pre-
appointed person of their choice and the
aforementioned appointed person is
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allowed to cast the vote on behalf of the
external voter.
d.Electronic Voting: here the external voteruses 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 Petitionerthat a country like Senegal, in Africa is one
which has a significant expatriate
community. Further, this expatriate
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
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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.
3.10It is submitted that this Honble Court hasheld 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
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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 orderin 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 orderin 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 ;
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(c) Issue such other writ order or direction, asdeemed 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` FILED BY
(Haris Beeran) (R.S.Jena)
Advocate Advocate for the Petitioner
New Delhi
Drawn On :: 3 .3.2014
Filed On :: 15.3.2014