As held by the Hon’ble Supreme Court, the Representation of Peoples Act, 1950 is a self contained enactment so far as the Elections are concerned, which means that whenever one has to ascertain the position in regard to any matter connected with the elections one has only to look at the Act and the Conduct of Election Rules, 1961 made there under. The Court further observes that the purpose of the Act is to maintain the purity of Legislature and to avoid a conflict between duty and interest. The right to vote or stand as a Candidate for Election is not a civil right but a creature of statute or special law and which is subject to limitations imposed by it.
The precise grievance is that a large majority of the Indian Armed Forces Personnel have never voted during their Service Tenures. Effective voting rights have never been provided to the Armed Forces. The system which is provided as per The Representation of Peoples Act, 1950 i.e. by the way of Proxy voting system / Secret ballot system has proved to be inefficient and inadequate due the long delays in sending out voting sheets to the different places where the Defence personnel are posted. In case of their being on Border posts, the delays are even more acute. The voting sheets rarely ever reach back to the Returning Officer in time before the counting process begins.
Parliament had already approved the Proxy voting system as early as September 2003, whereby the Personnel could authorize a Family member to vote for them. It is vehemently stated here that even this system has proved to be ineffective due to the fact that the Defence personnel are totally unaware about such provisions. Moreover, the Defence personnel who are deployed on our Borders have the option to put signatures on Form 13F before the Commanding Officer of the Unit and then send the form to his Proxy, who can thereafter submit the form to the concerned Returning Officer. This process has proved to be highly inefficient as neither the Defence personnel / Service voter is aware about such provisions nor they take interest, it being a very lengthy and unfeasible process.What about Soldiers posted in the Siachen Area and Ladakh.
Why not the mechanism of getting the Personnel of the Armed Forces be Registered at the place of their posting by submitting such forms showing them to be ordinarily resident c/o A.P.O, especially when it has been specifically mentioned in the Registration of Electors Rules, 1960 that in case a Service voter / Defence personnel posted outside their native place does not want the facility of enrolment in his / her native place , he / she may get himself / herself registered as an Ordinary Elector in the actual place of his / her residence at the place of his / her service / posting by filling an application in Form-6 appended to the Registration of Electors Rules, 1960 and submit the same to the concerned Local Electoral Registration Officer.
That it is further stated that no Political Candidate be allowed to hold an election rally in the Defence Area or disturb the peace of the Military Stations by going house to house for canvassing and can in no way demand listeners in the form of Armed Forces. I am sure that All Armed Forces Personal are fully aware as to whom they would cast their Vote!!
Service Qualification (Serving Abroad)
Even The Army has also issued a Army Order 15/95 with Amendment No 3 and have added that Under the Election Law the members of the Armed Forces of the Union or of a Force to which provisions of the Army Act 1950 (46 of the 1950) have been made applicable whether with or without modification for members of an Armed and Police Forces of a State serving out side that State and Persons employed in a Post out side India to be treated as “ Service Qualification” and these persons are deemed to be ordinarily resident on any date in the constituency in which they are ordinarily resident on that date .
However in cases for those who like to register themselves at their actual place of posting/ residence, can get themselves enrolled at the time of house to house enumeration or by filling an application in Form-6 appended to the Registration of Electors rules 1960 as ordinary electors and not as service electors . Once the voter is enrolled as an ordinary elector in the general part of the Electoral role he can VOTE ONLY IN PERSON IN A POLLING STATION SET UP FOR THE PURPOSE.
Right to Vote
Every citizen of India, after the age of 18 years [including Armed Forces personnel] have a Constitutional Right to be registered in the Electoral Rolls as Ordinary Residents and to cast their vote in the Elections. “Section 19 of the Representation of the People Act, 1950 [hereinafter referred to as “the 1950 Act”] provides that every person who is not less than eighteen years of age and is ordinarily resident in a constituency shall be entitled to be registered in the electoral roll for that constituency. Section 20 defines the meaning of “ordinarily resident”. Under Section 20(3) of the 1950 Act any person having a “service qualification” shall be deemed to be ordinarily resident on any date in the constituency in which, but for his having such “service qualification”, he would have been ordinarily resident on that date.
There are over 60 large Cantonments and 250 medium and small Military Stations in the Country. These Cantonments and Military Stations are part of various constituencies of Democratic Elections.However these personnel of disciplined forces are not able to exercise their voting right despite having a mechanism in place. However they can authorize one of their family members to caste vote on their behalf, which is not workable. In the Assembly or other Elections. A Soldier has to take the initiative and request for the ballot papers through his Commanding Officer which is a tedious process and thus, generally, avoided.
An ordinary citizen of India has the constitutional right to vote as ordinarily resident of that place in terms of the provisions of Section 19 of the 1950 Act. However, on becoming a member of the Military Service, he is not entitled to cast his vote personally and the only option available with him and his wife is to cast their votes through postal ballot or proxy voting. The postal ballot system has proved inadequate and inefficient due to the long delays involved in sending out voting sheets to the different places where Defence personnel are posted. In this process, the voting sheets have to be filled in and sent back to the respective returning officers before the counting process begins, but this rarely happens on time. The system of proxy voting is also ineffective.
Problems that are faced
That Armed Forces are responsible for protecting the borders of the Nation for which they are located at different places by Government of India i.e., peace/field and family/non-family stations. Thus, by virtue of their such postings, they are ‘ordinarily residents’ at their place of posting in terms of Section 20(3) of the 1950 Act. A mechanism must be evolved for registration of the Personnel of Armed forces as voters by following the procedure under the Rules so that they are able to get them registered as voters at the place of their posting by submitting requisite forms at the Cantonment and further making arrangement in the Cantonment area for casting of votes on the date of polling. The mechanism is required to be provided as the applicant for getting himself enrolled as voter has to present the requisite forms personally, which is not possible in the case of serving personnel of armed forces who are sometimes posted on the borders or such areas in the national interest, from where it is not possible for them to come personally and tender the forms.
Why are the Personnel of Armed Forces posted in different parts of the country, i.e. away from their place of actual residence are not being allowed to exercise their Constitutional Right to vote? It may be mentioned that at some places, such personnel are not being registered as service voters and at other places, even the personnel registered as service voters are not being allowed to cast their vote personally due to lack of availability of polling booths and Election Personnel in the Cantonment areas.
That the law is well settled as laid down by the Hon’ble Supreme Court in the case of Election Commission of India and another V/s Dr. Manmohan Singh and others reported as AIR 2000 SC 231 wherein the election, based on the registration as voter in Assam etc., on the basis of existing provision, has been upheld, on being challenged. The only difference is that the Armed Forces require the enforcement and implementation of the provision regarding registration of serving personnel of the Armed Forces at their respective places of their posting, by not compelling them to approach the Registration Officer, and completing the formalities by making repeated visits, but at the level of their Head Quarters by making such appointment of officers, for the purpose of completing the formalities, and also making arrangement for casting of their votes at the time of election to Parliament, especially because their addresses and place of residence has to be taken care of and that it cannot otherwise be made public.
That keeping in view the facts and circumstances of the case, a mechanism is required to be evolved so that the serving Armed forces personnel are registered as voters by considering them as ordinarily residents of the area of their posting by completion of such formalities i.e. tendering forms etc. at their HQrs instead of going to the concerned Electoral Officer, and further making arrangement of casting their votes in the Cantonment Areas on the day of polling. A Committee is required to be constituted to evolve a foolproof system of registration of serving Defence personnel at the place of their posting, both at family / non-family and peace / field stations which would also include their spouse / family members residing with them at the place of posting.
The present system of proxy voting / secret ballot with the facts and circumstances, mentioned above is rendered illusory and is of no avail. Even otherwise, also a serving personnel of Armed Forces visits his native place, where he was once registered as voter, for one/two months in a year !!
It is therefore necessary that some mechanism be evolved so that the serving personnel of Armed Forces are able to get themselves registered at the place of their posting by tendering forms in the cantonment area, with the Commanding Officer, who in turn may take such further action as enjoined by law. Further, even at the time of polling, such mechanism would also have to be evolved for the casting of votes by the serving personnel of Armed forces, by keeping in view their duty requirement, in the interest of the Nation. This deserves to be given due importance, as they cannot be deprived of their right to cast vote, which, as earlier stated, is not a civil right but creation of a statute.
That Election Commission of India cannot abdicate their functions in the case of serving personnel of Armed Forces, which it is obliged under the Constitution to perform i.e. affording opportunity to them to exercise their right of vote. The representations made to the Election Commission bear testimony to the concern exhibited in the matter. The Election Commission of India being a Constitutional authority is ordained in law to take care of the interest of serving personnel of the Armed Forces, who, in their own right being citizens and residents of India, have a right to be registered as voters at the place of their posting, as per the procedure provided in the Rules. However, in the case of serving personnel of Armed Forces, the Election Commission has to evolve a mechanism so that complete effect is given to the Rules regarding their registration as voters and further regarding their right to exercise vote on the date of polling in the cantonment area or at such other places, by making such arrangement with the concerned Commanding Officers. The serving personnel of the Armed Forces cannot be made to leave their place of posting and then approach the Registration Officer for registering them as voters, and then again leaving their place of posting, seeking leave from Commanding Officer and then going to the polling booth in the civil area for casting their vote. THE SERVICE VOTERS HAVE A RIGHT TO BE REGISTERED AT THEIR PLACE OF POSTING, WITHOUT ANY OPTION / PRE CONDITION, IN THE CASE OF PARLIAMENTARY ELECTIONS, SO THAT THE SERVICE VOTERS COULD ALSO EXERCISE THEIR RIGHT.
Para No.13 (a) of Army Order 15/95 provides, that persons having “Service Qualification” can avail the facility of fictional domicile under section 20(8) of the 1950 Act, and get themselves registered as electors in their original (native) home town or village, where they would have been ordinarily resident but for their Service Qualification because of him being POSTED ABROAD.
That the serving personnel of the Armed Forces by virtue of their nature of duties and their posting are not able to Vote but it remains a fact that the serving personnel of the Armed Forces have virtually been deprived of their right to cast vote. This is due to the fact that the present system is of no avail which has resulted in the deprivation of the right to get themselves registered as voters at the place of their posting, in the absence of any mechanism evolved by the Election Commission of India by taking into consideration the widely known fact that the serving personnel of the Armed Forces are not able to avail of their right of vote, so as to elect an individual or a party of their choice/liking at least in the Parliamentary elections.
The following Questions arise which have to be resolved:
• Whether the Armed Forces Personnel posted in different parts of India are entitled to exercise their constitutional right to vote effectively?
• Whether such personnel can be denied their Fundamental Right to vote being posted outside their native place of residence?
• Whether the Serving Personnel of the Armed Forces have virtually been deprived of their right to cast vote in view of the fact that the present system is of no avail to them?
• Whether the action of the Election Commission not getting the serving personnel of the Armed Forces registered as voters at the place of their posting is arbitrary?