Rules and procedures for housing society elections in India

Housing society elections in India is an important part of housing society life. The election in the society is supposed to follow certain rules and procedures. In this blog we intend to explain these rules and procedures.
Note: Most housing societies are formed as cooperative housing societies (CHS) and cooperatives is a state subject in India. Each state has its own Cooperative Societies Act and most of these Act also provides a model byelaw that can be adopted by the housing society in that state. A housing society can adopt its own modified byelaws, but the byelaws should not contradict the Act of that state. There are 28 states and 8 union territories in India and rules might differ from state to state. However, most of these state Acts have been based on THE CO-OPERATIVE SOCIETIES ACT, 1912 and are more of less similar. However, we request our readers to use this blog for general guidance. They should refer the following documents for legal purpose:

1. Your society Byelaw – Every society has one. Ask your managing committee to provide a copy to you. It is your right, and nobody can deny you access to the society byelaws.
2. Your state Cooperative Society Act – Link to few states’ Cooperative Society Act is provided below for your convenience:
   1. Maharashtra
   2. Karnataka
   3. Delhi
   4. Tamil Nadu
   5. West Bengal

Key points to note regarding housing society elections in the byelaw:

1. Voting rights of owners: All members who own property in the housing society generally have voting right. No member should be denied voting right. Generally, the first owner is supposed to exercise the voting right, however co-owners can also be allowed to vote.
2. Equal voting right: Generally, each member owning a property in the housing society has equal voting right. Generally, member having a bigger flat, say 3BHK, does not get higher voting weightage compared to a person owning a smaller flat, say 2BHK. However, generally, a person owning two flats in the society gets 2 votes. Votes are generally based on number of units and not number of members. In exceptional societies, formed as limited liability company instead of cooperative, at times they have differential voting rights bases on size of the unit. Right2Vote eVoting platform provides options to create all kind of elections including with weightage based on number of units and weightage based on size of the flat.
3. Denial of voting rights: Byelaw might mention that members who have not paid their society dues in full, might be barred from voting.
4. Voting right of tenant: Generally, tenants do not have voting right. The voting right for each flat is restricted to the owner of the flat.
5. Voting window: A voter must be provided a reasonable voting window to enable him to vote. Keeping a very short voting window is restrictive and can lead to members complaining that they were denied their right to vote. We recommend minimum voting window of 8 hours if all your voters are located in India and minimum 24 hours if your members are residing abroad to provide for different time zones. Generally, we have seen many societies keeping a short voting window of less than 2 hours, which can lead to legal issues.
6. Reasonable notice of election date and voting window: All voters should be provided advance notice about the elections. Generally, the practice is to provide minimum 14-day advance notice. However, it can differ from society to society based on the bye law.
7. Intimation of election date and process: A society need to provide advance intimation to members about the intention to conduct election and invite nominations for various posts. This is generally done minimum 21 days in advance of the election date. The society also needs to circulate the rules and procedure for nomination and election process.
8. Right to stand in elections: All owners / members have equal right to stand in elections. No owner can be denied right to stand in elections unless:
1. The owner title of the property is in dispute.
2. The owner has not paid all society dues in full.
9. Election method – Online voting Vs Paper ballot: The Acts or the model bye laws generally have kept silent on the election method and hence paper based voting and online voting – both methods can be used for voting. Show of hands is generally not advisable specially when ‘Secret ballot’ is a requirement. Refer this blog for more details on this topic.
10. Secret ballot: Most State Cooperative Act and model byelaws mention that election of members should be done via secret ballot. Secret ballot means, that nobody, not even the election officer should come to know which member voted for which candidate. This is to ensure secrecy of member’s vote so that member can vote with his free will and there is no chance of coercion.
11. Proxy voting: Most Act and model bylaws mention that ‘member should vote in person’. This means proxy voting is not allowed. It should not be confused with requirement of physical presence of voter. It only means that voter cannot abdicate his right and responsibility of voting to somebody else. Proxy voting clause differ from society to society, please check your byelaws carefully for the same.
12. Postal voting: Many Acts and bye-laws specifically provide for option of postal voting where members can send their vote via post. However, considering limited timelines of election, postal voting is generally not feasible and online voting is a preferred option for voters who are residing elsewhere or who are travelling.
13. Election of Committee Members: Rules differ in model byelaws relating to election of committee members. In few states like West Bengal, the standard practice is that members vote to elect the committee members and the committee members among themselves decide who would take the title of President, Treasurer, Secretary etc. In Other states like Karnataka, members vote directly to appoint specific candidates to post of President, Treasurer, Secretary etc. Few members are also elected as committee member. Right2Vote’s eVoting platform provides feature of ‘Team Election – Exact’ and ‘Team Election – Upto’ to help societies elect team of committee members from the same list of candidates. You should check your byelaw to check whether voters are allowed to select exact number of candidates or they can select less than the number of post. Right2Vote platform provides both customizations. Most other platforms do not have this feature.

 
Election Schedule checklist and timeline
 
For the benefit of members, we have provided below a checklist and timeline for elections. Readers can customize based on their society bye-laws and convenience of the members:

 
Voting on resolutions during Annual General Meeting (AGM) and Extraordinary General Meeting (EGM)
Voting of members are required even on resolutions during AGMs and EGMs. It is better to conduct online voting for voting on resolutions and provide members with minimum 24 hours to vote on these matters. Generally, secret ballot is not compulsory for voting on resolutions unless resolutions are very sensitive and members foresee risk of coercion.

 
Passing of resolutions by just show if hands in meeting is avoidable due to following reasons:

1. It is difficult to keep record of such voting. Later, any member can challenge the result in court. It would be difficult to provide evidence. With online voting – proper evidence and record is maintained and can be presented in court.
2. In show of hands, counting of votes can lead to mistake.
3. At times, more than one member from a family is present in the meeting. This can lead to double counting.
4. In show of hands, and verbal communication of resolution, there are chances of miscommunication and misunderstanding.
5. There might be members who are attending the meeting over video conference / remotely.

 
Conclusion: The best way to conduct an election or voting on resolution is to do it online on a Government of India approved eVoting platform. This ensures no member is denied his right to vote specially those who are resident in some other city. All members should be given advance intimation and reasonable voting window. Features like Secret Ballot and Audit Trail should be used to ensure fairness and transparency. Online voting system also ensures presence of hard evidence which can be submitted to authorities, if required. This reduces chances of any litigation in future.