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--------------- Print Magazine --------------
 
  May 2016
 
  April 2016
 
 
 
 
LEGAL ARTICLE
ANOTHER "ADARSH" GONE SOUR
Joginder Singh

On the eve of the Pravasi Bhartiya Divas 2011 (PBD), announcements had been made in the Parliament with much fanfare by the Central Government that a "Gazette Notification has been issued giving voting rights to Non-Resident Indians." Replying to a debate on the Representation of People (Amendment) Bill, 2010 to allow NRIs to exercise their franchise in Indian elections, it was stated that comprehensive electoral reforms are on the cards as the Union Cabinet has cleared amendments to the Bill. The Rajya Sabha has now passed the Bill.

The Representation of People's Act, 1950 is awaiting some changes. As of now, NRIs are barred under section 19 of the Act from voting if they remained outside India for six months for whatever reasons. The Government has proposed inserting sub-section (1AA) under section 20 of the Act to do away with this disability to give voting rights to NRIs.

The definition of NRI is elusive in Citizenship laws. Section 2 of the Foreign Exchange Management Act, 1999 (FEMA) defines a person resident in India and a person resident outside India but does not define the term NRI. However, a notification defines NRI to mean a person resident outside India who is either a citizen of India or a person of Indian origin. Under FEMA, a person "resident" in India is one who resides in India for more than 182 days in the preceding financial year and who comes to stay in India for any purpose. A "Non-Resident" is merely defined as a person who is not a resident of India. Therefore, an NRI can be summed up as an Indian citizen who is ordinarily residing outside India and holds an Indian passport. Easier said than done.

For whom are these voting rights meant? It is stated that they are meant for three categories of 11 million NRIs who are not resident in India. Firstly, they are Indian citizens who stay abroad for employment or business or vocation or any other purpose indicating an indefinite period of stay abroad. Secondly, they are Indian citizens working abroad on assignments with foreign Government agencies. Thirdly, they are Indian Officials of Central or State Governments deputed abroad on temporary assignments or posted in Indian missions abroad.

The voting rights for NRIs are otherwise an optical illusion. This is because the Government notification excludes Indian citizens who have become foreign nationals and secondly, eligible voters can exercise their franchise only if they are present in the constituency on the polling day. There is no provision for postal ballots or provision for casting votes at Indian Embassies and Consulates abroad. Electronic modes of polling are yet a far cry. Clearly, the announcement is more illusory and less real. It gives little and only shows a lot. The announcement from the gallery was therefore only a pre -PBD public relations exercise. Even NRIs gain little.

The principal issue remains. Both the Constitution of India and the Indian Citizenship Act, 1955, categorically prohibit dual citizenship and debar holding of two nationalities simultaneously of two different countries. To create a compromise, the Government amended the Citizenship Act, in 2005 to create a Class of Overseas Citizens of India (OCI). This was primarily only the grant of a multiple- entry lifelong visa for Indians turned foreigners who could visit India anytime without a normal visa for any purpose whenever they like. However, the amended section 7B of the Citizenship Act, specifically prohibits political voting and other rights for OCIs. The bar of dual citizenship thus, will never give way to any voting rights to Indians who are foreigners under the label of OCIs. Hence, only the 11 million NRIs with Indian passports qualify for voting rights if they are physically in India on the polling day. The remaining 19 million foreign national NRIs do not even qualify to vote. The 11 million Indian NRIs have to ensure their physical presence on the day of the poll to vote. A paradox. A lot of words but very little content. Patriotism to vote only is not so strong that the NRI will travel exclusively to India only for his franchise. Clearly, the purpose of voting proves futile.

It is stated in the latest World Bank's just released Migration and Remittances Fact Book 2011 that India continued to be the largest recipient of remittances in 2010 with figures stated to be rising from $ 49.6 Billion in 2009 to $ 55 Billion in 2010. India is also stated to be the country with the second largest number of emigrants after Mexico. Our 30 million NRIs live in 130 countries abroad but we only want their Euros, Dollars and Pounds. If we wish to have the best of both Worlds, the serious option is not voting rights, it is dual nationality. The homing pigeons must be allowed the flight home with landing rights. The time has now come for Indians to be recognised as citizens of India irrespective of their current nationality and place of residence abroad. Partial compromises will not do. The package and deal should be wholesome. Indians abroad should be given Indian Citizenship irrespective of parallel identities of foreign citizenship. Dual nationality should be a reality and not a dream. Our Indian brethren are not step- children. Relooking may be required to amend the Constitution of India for this. The exercise must start. It may take time but it will be the call of the day very soon.

 
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