The Registration of Electors Rules, 1960 (RER)

Who are qualified as ‘ordinarily resident’?

What does Section 20 of the Representation of the People Act, 1950 state? Why are migrant workers vulnerable when it comes to classifying themselves as ordinarily resident in a particular constituency? Are NRIs allowed to vote? What does the Registration of Electors Rules, 1960 govern?

The Election Commission of India (EC) has initiated a Special Intensive Revision (SIR) of the electoral rolls in Bihar. This has kindled the debate around the term ‘ordinarily resident’ for the purpose of being included in the electoral rolls of a constituency.

Who is ‘ordinarily resident’?

The electoral rolls are prepared by the EC as per the provisions of the Representation of the People Act, 1950 (RP Act).

Section 19 of the RP Act requires that a person is ‘ordinarily resident’ in a constituency for inclusion in its electoral roll.

Section 20 provides the meaning of the term ‘ordinarily resident’. It specifies that a person shall not be deemed to be ‘ordinarily resident’ in a constituency only because he/she owns or possesses a dwelling house therein. However, a person temporarily absent from his/her place of residence shall continue to be ‘ordinarily resident’ therein.

Persons who are (a) members of armed forces of the Union, (b) armed police force of a State serving outside that State, (c) employed by the Government of India in a post outside India or (d) holding a constitutional office declared by the President in consultation with the EC are considered, along with their spouse, to be ‘ordinarily resident’ in the constituency where they would have been ‘ordinarily resident’ but for such posting.

Section 20A was added in 2010 to enable non-resident Indians who have shifted out of India, even for long term, to register and vote in the constituency in which their address as per passport is located.

The Registration of Electors Rules, 1960 (RER), notified by the Central government in consultation with the EC, governs the preparation of, and inclusion/exclusion of names in the electoral rolls as per the provisions of the RP Act.

What are potential issues?

The requirement of being ‘ordinarily resident’ for inclusion in the electoral roll of a constituency is to ensure that the voter maintains real ties with the constituency that preserves representative accountability. It is also aimed at preventing fraudulent registrations.

The Gauhati High Court in the Manmohan Singh case (1999), indicated that the term ‘ordinarily resident’ shall mean a habitual resident of that place. It must be permanent in character and not temporary or casual. It must be a place where the person has the intention to dwell permanently. A reasonable man must accept him/her as a resident of that place.

• The issue arises when it comes to migrant labourers. The Periodic Labour Force Survey of 2020-21 estimated that around 11% of our population migrated due to employment related reasons. This translates to close to 15 crore voters being migrant labourers within or outside their States. Some of these migrations are seasonal in nature where the labourers return to their ordinary residence for some months of a year.
• Many migrant construction and security workers live in temporary shacks/residences at their place of work. They move from one location to another, within a State or even in different States, as part of their work. They return to the ordinary residence in their home State at regular intervals.
• They exercise their right to vote in that place where their families and children live and where their properties exist. While they may not be residing permanently in such residence, the philosophy behind being ‘ordinarily resident’ as opined by the courts is broadly fulfilled with respect to that residence for such migrant workers.
• Any migrant has the right to shift his/her vote to their new place of residence anywhere in India if they so desire. However, removal of migrant voters from the electoral roll of their original residence by following a strict interpretation of the term ‘ordinarily resident’ can vitiate the democratic process. It may result in their disenfranchisement as most of them would not be keen, and neither welcome, to register as voters in their temporary place of work.

What can be the way forward?

The RP Act provides the option to service voters, persons holding a declared office and NRIs to retain the vote in their constituency even though they may not be permanently residing in such place. While it may not be an apple-to-apple comparison, it must be noted that most labourers, short-term or long-term, migrate on account of lack of opportunities in their region. They continue to have close connections with their original residence and choose to retain their right to vote in such constituency. The RP Act or the RER may be suitably amended to preserve the choice of migrant labourers. Suitable mechanisms, acceptable to all stakeholders, to enable participation of migrant labourers in the elections should be explored. The issue of migrants enrolling more than once in different constituencies should be addressed separately through Aadhaar seeding.