Essential Yesterday, Excluded Today: Bihar SIR Reveals EC's Confusion Over Aadhaar

New Delhi: While the Aadhaar cards have essentially been made mandatory in India for any service, the Election Commission of India (ECI) has suddenly displayed its strong resistance to the identification document as it continues with the Special Intensive Revision (SIR) exercise of the voter rolls in Bihar. This has brought into focus the poll body’s confusion and consequent flip flop on the identification document.

According to the UIDAI (Unique Identification Authority of India) website, Aadhaar coverage in Bihar is at 94%. The Wire has reported that BLOs (block level officers) are taking only Aadhaar even from those who have valid documents while conducting the exercise in the state.

Yet, the Election Commission has not listed the document in its list of 11 required for the exercise . It also resisted its inclusion in court. This, despite the poll body as recently as in March had set the ball rolling to link voter records with Aadhaar. 

Prior to that, the Election Laws (Amendment) Act, 2021, had amended The Representation of the People Act to include Aadhaar. In 2022 the Registration of Electors (Amendment) Rules, 2022, that followed the Election Laws (Amendment) Act, 2021, also made Aadhaar linkage mandatory by default by bringing in Form 6B.

EC’s resistance in court to Aadhaar inclusion in Bihar SIR

On July 10, the Supreme Court asked the Election Commission to consider accepting the Aadhaar card, voter ID card and ration cards for its roll revision exercise in the poll bound state ahead of assembly elections in November. This was after the 11 documents list sought by the Election Commission as proof of place or date of birth for voters who were not on the 2003 rolls did not include these three documents.

During the hearing, the poll body said that Aadhaar is not proof of citizenship and only of identity as petitioners questioned its exclusion from the list of 11 documents along with the voter ID.

"Aadhaar card cannot be used as proof of citizenship," senior advocate Rakesh Dwivedi, counsel for the Election Commission said in court. 

"It only shows I am I and you are you," he said pointing to the Aadhaar Act, 2017, which said that the card was not proof of citizenship or domicile.

“Aadhar is not proof of citizenship or domicile. Once all the application forms have come then the stage of objection and claims will begin. If someone objects that this person is not who he claims to be then Aadhar can be used,” he further said.

Dwivedi said that Aadhaar can be issued even to non citizens that are resident of India.

“If there is an objection with respect to my form that you are not Rakesh Dwivedi then I can take out my Aadhar and show,” he said.

During the hearing, Justice Sudhanshu Dhulia, who was hearing the petitions along with Justice Joymalya Bahchi, pointed out how caste certificate, which is based on Aadhaar, was on the EC’s list of 11 documents, but "Aadhaar is not".

“If I want a caste certificate, I show my Aadhaar. A document that like Aadhaar, considered basic for getting other documents, is not part of the 11 documents? Caste certificate is one of the documents among the 11, but not Aadhaar? The entire exercise of SIR is about identity only. You want to know whether this person is A or B,” said Justice Dhulia.

“They are all meant to prove your identity. Yet, you (ECI) stridently oppose the inclusion of Aadhaar… You can do your work, but do it in accordance with the mandate of law. The statute, Representation of People Act, allows Aadhaar,” Justice Bagchi said.

Not proof enough?

While article 326 of the Constitution states that voting rights can only be given to Indian citizens, sections 23(4), 23(5) and 23(6) of the Representation of the People Act, 1950, pertain to inclusion of names in the electoral rolls. The Representation of the People Act, 1950, was amended through the Election Laws (Amendment) Act, 2021, to include subsections 4, 5, 6 under Section 23 that pertained to linking Aadhaar with electoral rolls on a voluntary basis.

In short, Aadhaar was made mandatory for people to have voting rights.

In March, while admitting that Aadhaar is not a proof of citizenship and only of identity, the Election Commission set the ball rolling for linking Aadhaar with voter ID despite concerns of disenfranchisement and exclusions. It then said that the linkage will be done only as per the “provisions of Article 326 of the constitution and Sections 23(4), 23(5) and 23(6) of the Representation of the People Act, 1950 and in line with the Supreme Court judgement in WP(civil) No. 177/2023.” 

The Wire had then reported how voluntary Aadhaar linkage is already implicitly mandatory, while concerns of duplication are unlikely to be fixed by a technological solution through a database that itself has been prone to duplication, requiring instead a physical solution.

After the Representation of the People Act, 1950, was amended through the Election Laws (Amendment) Act, 2021,  the Registration of Electors (Amendment) Rules, 2022, that followed the amendment stated that collection of Aadhaar numbers remains on a “voluntary basis” but also brought in Form 6B “for collecting Aadhaar number of existing electors to authenticate the entries in the electoral rolls and thus make it absolutely error free.”

Form 6B, however, makes Aadhaar linkage mandatory by default by presenting only two choices – either provide your Aadhaar number or state that you are not able to provide it “because I don’t have Aadhaar number”.

‘Law amended to include Aadhar now kicked out’

Raising the issue of the amendment to include Aadhaar, senior advocate Gopal Sankarnarayanan, appearing for one of the petitioners in Bihar SIR case, pointed out to the Supreme Court, that while Aadhaar is an acceptable document under the Act, the Election Commission is not accepting it in the Bihar exercise.

"I am not claiming that Aadhar is a proof of citizenship for a person (who) has not been on the electoral roll. But it is proof of authentication for someone who is already on the roll," Sankarnarayanan said.

The 11 documents sought by the EC are: birth certificate, passport, matriculation certification, permanent residence certificate issued by a state authority, forest rights certificate, caste certificate, National Register of Citizens or NRC (wherever it exists), family register prepared by state/local authorities, any land/house allotment certificate by the government, any identity card or pension payment order issued to a regular employee or pensioner of central government/state government/PSU, or any such identity card/certificate/document issued by the government/local authorities/banks/post office/LIC/PSUs prior to 1 July, 1987.

A matriculation certificate does not prove citizenship. Meanwhile, another five – the Scheduled Caste/Scheduled Tribe certificate, Forest Rights Certificate and Permanent Resident Certificate (or Domicile Certificates) – do not display the date of birth or place of birth of an applicant. 

Congress’ Rajya Sabha MP and counsel for one of the petitioners, Abhishek Manu Singhvi, while addressing a press conference on Saturday (July 12) said that the law was amended to embrace Aadhaar but it has been “kicked out”.

“The amazing part is that for the last 15 odd years or 12 odd years, we have been living, breathing, acting, sleeping, and waking with Aadhaar. Some years ago the Representation of the People Act was amended and Section 23(4) was added to say that Aadhaar is a valid card,” he said.

“And now this document violates the statutes and it is optional and it may be there it may not be there and other citizenship documents will be looked at? Election Commission voter ID card is to be ignored, so also ration card. You amended the law to embrace Aadhaar and kicked it out of the main bazaar. In 12 years, billions are linked yet Aadhaar is not good enough for a voter's ink,” he added.

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