Is eVoting legal in housing cooperative societies in India?
The short answer is – Yes, eVoting is legal in housing societies all across India. It is legal in all the states in India without exception.
There are two kind of vested interest who work hard to create a myth that online voting or eVoting is not legal in India. These are:
- Housing society members who want to deny right to vote to fellow members:
In every housing society there are members who are not able to vote in a physical booth-based voting due to following reason:
- Owners of the housing units who are living abroad or some other city and hence unable to come to the booth to vote
- Owners of the housing units who are travelling or are busy and are unable to come to the society office / booth to vote in the defied small window provided to vote
There are always certain society members who want to ensure that minimum number of people vote so that they can control the housing society management with their small coterie of friends. These people will always oppose online voting as online voting leads to increase in voter turnout and they do not want other members to vote apart from their own small coteries. Many times, existing management committee members of the society who have won due to low voter turnout in past physical voting challenge legality of online voting as the offline voting system is helping them deny the right to vote to others and maintain control over society management.
- Junior clerks in state cooperative society office
Junior clerks in state cooperative office feel powerful as during elections all candidates show them extra respect. In state like Maharashtra, these clerks charge Rs. 25,000+ for helping to manage the physical election and to be present on the election day. They also demand other cash and non-cash favours from society office bearers and candidates. When a society opts for online voting, the society end up saving this Rs. 25,000+ spent on the junior clerks and hence these clerks don’t like it. Online voting is against their self interest and hence they try to create a myth that online voting is not legally acceptable in India.
Most housing society committee members have access to only junior clerks in state cooperative commission office and hence take their word as last word. Society members need to understand that these are very junior people with very little education or knowledge and not right people to take legal advice from. Their only expertise is to how to create impediments and make under the table income over and above their government salaries. They do not have any real power; they just create an illusion of their power due to lack of your knowledge and lack of your access to senior officials.
When you are up against such corrupt clerks and society members with vested interests, you need the following ammunition to insist on online voting:
- What is written in law:
Anything is legal or illegal by basis of what is written in black and white and not on the basis of anybody’s interpretation. Ask them:
Where is it written that online voting is illegal and only paper based physical voting is allowed?
Society bylaws and the State Cooperative Act are the two relevant documents for the same. Most society adopt the bylaws based on model bylaws provided in State Cooperative Act. Most of these bylaws just mention that voting should happen. Nowhere it mentions that voting should be online or offline or booth based or remote.
The fact is, as technology was not advanced when these laws were written, the Act might specifically not mention about online voting. However, that does not exclude online voting. Many of these acts were written when mobile and internet-based communication was not possible. Hence, all Acts mentions requirement of communication and do not specify offline communication or online communication. Still, all court recognize mobile communication and internet-based communication as valid communication. Same logic holds true for voting also.
Online banking / mobile banking / internet banking is another example. Act might require transfer of money and not mention about internet banking as one of the options. However, transfer of money via internet banking is considered valid transfer of money by courts.
Acts need to mention that voting should happen. Act need not define the method of voting, and when the Act is silent, all valid methods are acceptable. Please note: nowhere in the act it is written that voting should happen via paper ballot.
It is worth noting that Section 60 in The Representation of the People Act, 1951 does not specifically mentions online voting or internet-based voting as a method of voting. However, Government of India has introduced 2-way internet-based voting (something similar to email) for certain sections of the population including armed personnel. If absence of ‘online voting’ term in the Act can lead to challenge of election via online voting, then election of Prime Minister of India can also be challenged! And if that is challengeable then everything done by the government in the last 10 years can also be challenged, which may include appointment of judges who need to be called for hearing the challenge against election.
In fact, due to covid, most court shifted to online mode without any specific change in the Act to provide for option of online hearing and judgement. Can judgement of these courts including Supreme Court can be challenged in Supreme Court on the grounds that the India legal Acts do not specifically mention that ‘online court hearing’ is allowed?
Some people might act smart and might try to fool you with following terms. Don’t let them mislead you with terms like:
- “Vote in person”: Most of the model bylaws mention that voter need to vote in person. This means a voter cannot vote via proxy and he himself needs to vote. This does not mean that voter need to be physically present at a booth to vote.
- “Secret Ballot”: Many bylaws mention that voting should happen via “Secret Ballot”. Secret Ballot means that nobody should come to know who the voter voted for, and individual voter choice should be kept secret. Voter should get privacy of his vote. This does not mean that voting should happen via physical ballot. Right2Vote and many other online voting service providers provides Secret Ballot feature in their online voting software.
- West Bengal High Court ruling:
High court and Supreme Court ruling are applicable all over the country unlike ruling of lower courts. Recently, High Court of West Bengal (HC-WB) ruled in case of New Town’s Rosedale Garden complex in West Bengal that Government of India tested and certified online voting platform should be used for voting in the housing society. Right2Vote’s online voting platform is tested and certified by Government of India. When West Bengal High Court ruled in favour of online voting in a cooperative housing society, this ruling can be referred to and quoted in any litigation challenging validity of online voting’s acceptance in cooperative housing societies.
- Legal acceptance of online voting:
Online voting is well recognized and accepted technology by Government of India. Following government notifications is worth reading:
- Under The New Companies Act 2013, Government of India via MCA and SEBI has made it mandatory for listed companies to provide eVoting option to its shareholders.
- The Insolvency and Bankruptcy Code (IBC) has also made it mandatory for Insolvency Resolution Professional (IRP) to provide creditors with the option of online voting.
Since government of India has recognized online voting by making it mandatory 10 years back and no court has ruled against those provisions of the Act yet, it is obvious that no court doubts the online voting technology.
- Many cooperative housing societies across India has been using online voting service of Right2Vote for several years
Right2Vote is a Government of India tested, certified and approved eVoting agency. Right2Vote has been providing eVoting service to many organizations including many cooperative housing societies across the country for last several years. Sample list of housing societies using eVoting service of Right2Vote can be referred to on their website. Apart from housing societies, Right2Vote has been doing voting for companies, associations, unions, clubs, colleges. Many of these voting is done under the supervision and overview of the court specifically NCLT matters. In many NCLT matters under IBC, home owners voting is required and courts have been regularly accepting online voting results for the same.
- Many cooperative commission including Cooperative Commission of Maharashtra, has already instructed housing societies to conduct digital meetings, especially during Covid.
- Maharashtra State Cooperative Election Authority (SCEA) has already announced that they are investing in online voting website for voting in housing society. Can SCEA invest in online voting website if online voting is illegal? Can budget be approved for illegal activities? The announcement is 3 years old. SCEA has been unable to create an online voting platform till date but there are enough Government of India tested, certified and approved eVoting platforms. Hence, online voting need not wait till SCEA is able to build their own website.
Conclusion: Online voting or eVoting is advanced and better version of voting. It helps to increase voter participation and hence leads to better outcome. Like everything including legal systems, banking systems, communication system, voting system also have to accept and adopt advancement in technologies. Government of India and Indian courts have already adopted online voting for more than 10 years now. People who are challenging legal validity of online voting are just fooling around. If Central Government of India has tested, certified and approved an agency like Right2Vote as an approved eVoting agency, then a small clerk sitting in small state department has no right to question the validity of online voting. It is moral obligation of these officials to facilitate maximum member participation in voting to ensure protection of minority interest. Online voting increases voter turnout compared to offline voting by providing right to vote to members residing elsewhere. By creating impediments and refusing to accept online voting they are abdicating their responsibility. If a clerk asks for a separate written approval from state cooperative commission, he is just looking to make some extra money under the table. Just ask him to show where it’s written that online voting is not legal.