Is eVoting legal in housing cooperative societies in India?

The short answer is – Yes, e-voting is legal in housing societies throughout India. It is permitted in every state without exception.

In India, housing cooperative societies are responsible for managing and maintaining residential complexes. Every few years, these societies conduct elections to select new office bearers. However, many society members are unable to vote in traditional and booth-based elections due to various reasons such as living abroad, residing in a different city or being preoccupied on election day. This limitation raises the question: is e-voting legal in housing cooperative societies? The answer is yes. But there are certain forces within societies and the cooperative system that oppose it, often for personal gain.

There are two main groups of people who work hard to spread the myth that online voting or e-voting is not legal in India. These groups have a vested interest in keeping the status quo because it benefits them.

Housing Society Members Who Want to Control Elections

In many housing societies, some members actively try to prevent others from voting by opposing online voting. Here’s why:

• Owners living far away: Many homeowners live in other cities or countries, making it difficult for them to vote in person at the housing society office.
• Busy or traveling owners: Some members are busy or traveling and can’t make it to the voting booth during the short time window provided.

There are always some people in the society who want as few members as possible to vote, so they can control the management with the help of their small group of friends. These members often resist online voting because it increases voter turnout, which threatens their control. In some cases, the current management committee, who won due to low voter turnout in the past, challenged the legality of online voting because the physical voting system helps them stay in power by preventing more members from voting.

Junior Clerks in State Cooperative Society Offices

Junior clerks in the state cooperative offices, particularly in states like Maharashtra, also have a vested interest in opposing online voting. Here’s why:

• Election fees and favors: During housing society elections, these clerks charge societies over Rs. 25,000 to help organize and oversee physical voting. In addition to this fee, they often ask for cash and other favors from society office bearers and candidates.
• Losing income: When a society switches to online voting, it saves this Rs. 25,000+ and cuts off a source of income for these clerks. So, these clerks try to create the false impression that online voting is not legal in India because it threatens their financial gain.

Most housing society committee members rely on these junior clerks for advice, thinking they are experts. However, these clerks have limited education and knowledge. Their real expertise lies in creating unnecessary obstacles to earn extra income beyond their government salaries. They hold no real power but create an illusion of it due to the lack of awareness among society members and limited access to senior officials.
When dealing with corrupt clerks and society members who resist online voting due to vested interests, you need to arm yourself with the following points to insist on the legality and acceptance of online voting:

What the Law Says

The legality of anything is based on what’s written in the law, not on someone’s personal interpretation. If someone claims that online voting is illegal, ask them:

Where is it written that online voting is illegal? There’s no mention in the law that only paper-based voting is allowed.

The two relevant legal documents are Society Bylaws and the State Cooperative Act. Most housing societies adopt bylaws based on model bylaws provided by the State Cooperative Act. These bylaws simply state that voting should happen; they don’t specify whether it should be online, offline, booth-based or remote.

When these laws were written, technology like mobile phones and the internet didn’t exist. Just like today’s laws accept communication via mobile and email, online voting is valid even if it’s not specifically mentioned. The same logic applies to voting methods.

Examples of Legal Precedents

• Online Banking: The law might not specifically mention internet banking, but transferring money online is accepted by courts as a legal transaction. Similarly, the law requires voting to happen but does not limit the method to physical ballots.
• Section 60 of The Representation of the People Act, 1951: This law doesn’t mention online voting either, yet the Government of India has introduced internet-based voting for certain groups like armed forces. If online voting were illegal, even the election of the Prime Minister could be challenged—which is clearly not the case.
• Online Court Hearings: Due to COVID-19, many courts, including the Supreme Court, shifted to online hearings without any specific changes to the law. If online proceedings are valid in courts, online voting in housing societies should be, too.

Common Terms that Cause Confusion

Some may try to mislead you using specific terms, but here’s what they really mean:

• “Vote in person”: This simply means that voters must cast their own vote and cannot vote via proxy. It does not mean they need to be physically present at a voting booth. Online voting platforms meet this requirement since individuals vote personally via the internet.
• “Secret Ballot”: This term means that the voter’s choice should be kept confidential. Online voting platforms, like those offered by Right2Vote, provide a secret ballot feature, ensuring voter privacy while maintaining a digital process.

West Bengal High Court Ruling

A significant legal ruling supports online voting. The West Bengal High Court ruled in favor of using a Government of India-tested and certified online voting platform for housing society elections (in the Rosedale Garden complex case). Since Right2Vote is tested and certified by the government, this ruling can be cited in any legal challenge to online voting in housing societies.
 

Legal Acceptance of Online Voting

The Government of India fully recognizes online voting technology. Some key examples include:

• The New Companies Act 2013: This law mandates e-voting for shareholders in listed companies.
• The Insolvency and Bankruptcy Code (IBC): This law requires online voting options for creditors during insolvency proceedings.

If online voting were not legally valid, these laws would have been challenged by now, but no court has ruled against these provisions. This proves that courts and the government accept online voting as a legitimate process.
 

Examples of Online Voting in Housing Societies

Many housing societies across India have already been using Right2Vote’s online voting platform for several years. Right2Vote is a government-certified and approved e-voting agency, and its services have been used in various organizations, including housing societies, companies, associations and even court-supervised votes in matters under the NCLT (National Company Law Tribunal).
 

Instructions from Cooperative Commissions

• The Cooperative Commission of Maharashtra has instructed housing societies to conduct digital meetings, especially during the COVID pandemic.
• The Maharashtra State Cooperative Election Authority (SCEA) has already announced plans to invest in an online voting platform for housing society elections. If online voting were illegal, SCEA wouldn’t be investing in it, nor would any budget be approved for this purpose. Though SCEA hasn’t completed its platform yet, there are already government-approved online voting platforms like Right2Vote available, which housing societies can use immediately.

Conclusion

e-Voting is not only legal but also a progressive step toward making elections in housing cooperative societies more inclusive and efficient. It ensures higher voter participation, giving every member regardless of their location, a chance to vote. While some individuals within societies and state cooperative offices may resist this change due to personal interests, it is crucial to understand that online voting is fully recognized by Indian law.

If the Central Government can rely on online voting for significant national matters, a local clerk or society member has no grounds to challenge its validity. The legal system is meant to serve the interests of all, and adopting e-voting aligns with this principle by ensuring wider participation and transparency in housing society elections.

The future of voting is online, and it is time housing cooperative societies embrace this change for the betterment of their communities.

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