Noting that election for some phases has already been completed, a bench of Justice KS Radhakrishnan and Justice Vikramajit Sen said that permitting the NRIs to vote in the remaining six phases would open a "Pandora box" that in some cases, some NRIs have been allowed and not the others.
Taking note of the practical problems that confronted the poll panel even though it was in the favour of extending voting facilities to NRIs from their overseas locations, Justice Radhakrishnsan told petitioner Shamsheer VP that the "point you have raised is favoured by them (Election Commission) but they have some practical difficulties".
Shamsheer VP has sought the reading down of Section 20A of the Representation of the People (Amendment) Act 2010 that mandates the presence of the listed voter at the polling station to cast his vote.
He had contended that any distinction between those physically present at polling booth and those overseas would be violative of article 19(1) as well as article 21 of the constitution.
The court noted that the Election Commission has already decided to constitute a committee to examine the feasibility of different options that can be considered for facilitating voting by overseas NRI electors as it adjourned the hearing till August end for the committee to complete its work and report to the court.
Allowing the application by Shamsheer to amend his petition, the court in its order said: "The respondents (Union of India and the Election Commission) are permitted to file a comprehensive counter affidavit within a period of two months."
Pointing to the paucity of time in putting in place arrangements for facilitating the NRIs to exercise their votes from their overseas locations, the Election Commission said even for permitting that amendment will have be made to electoral laws to expand the special category voters.
Under the acts, defence personnel, central government staff and staff at the diplomatic missions abroad come under special category of voters.
Senior counsel Meenakshi Arora who appeared for the Election Commission said that under the circumstances it would not be possible for the Commission to make any "interim/time gap arrangements to enable the NRI voters to vote through proxy or through ballot papers, more particularly when the election process is already ongoing" and some phases of the election are already over.
Seeking recognition of the right to external voting, the PIL says that existing provisions creates distinct two categories of haves and have nots amongst 1,00,37,761 NRIs (as on May, 2012 as per the Ministry of Overseas Indian Affairs) residing abroad as only 11,000 have enrolled themselves as voters in the electoral rolls.
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