New Delhi: Facing criticism over the duplication of Electors’ Photo Identity Cards (EPIC), the Election Commission of India (EC) has set the ball rolling to link voter records with Aadhaar and will begin the process of technical consultations with Unique Identification Authority of India (UIDAI).
While the move aims to end duplication, weed out fake voters in a bid to make the electoral rolls accurate, it has raised concerns of disenfranchisement and exclusion, posing a threat to the secrecy of the ballot while failing to fix the problem at hand of purifying electoral rolls.
In a press release on March 18, the EC said that it had held a meeting with the Union home secretary, secretary legislative department, secretary MeitY (Ministry of Information and Technology) and CEO, UIDAI and technical experts of the poll body and announced that EPIC numbers will be linked with Aadhaar.
Voluntary Aadhaar linkage implicitly mandatory
The commission while admitting that Aadhaar is not a proof of citizenship and only of identity, 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.”
While Article 326 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.
While 23(4), 23(5) allows election officials to ask for Aadhaar numbers to establish unique identity of a person, and such Aadhaar numbers may be provided according to prescribed rules respectively; Section 23(6) makes it clear that inclusion in the electoral rolls will not be denied, neither will any deletions be made on account of not providing Aadhaar.
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“No application for inclusion of name in the electoral roll shall be denied and no entries in the electoral roll shall be deleted for inability of an individual to furnish or intimate Aadhaar number due to such sufficient cause as may be prescribed: Provided that such individual may be allowed to furnish such other alternate documents as may be prescribed,” says Section 23(6).
Subsequently, 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”.
“So the implication is if you have an Aadhaar number you must provide it- which is wrong,” said Jagdeep S. Chhokar, founder-member of Association for Democratic Reforms (ADR).
“The form itself should not be leading people to provide the Aadhaar card, not knowing it is voluntary, and should be changed,” he added.
No legislative basis at present
In its press release, the EC has also said that along Sections 23(4), 23(5) and 23(6) of the Representation of the People Act, 1950, it will do the EPIC and Aadhaar linking in accordance with Article 326 of the constitution and the Supreme Court judgement in WP(civil) No. 177/2023 without making it clear how it will make the voluntary nature of Aadhaar linkage mandatory.
The Supreme Court order in G. Nirajan v. Election Commission of India (WP (C) 177/2023) had stated that the Election Commission had told the court that nearly 66 crore Aadhaar numbers had already been uploaded in the process of finalising electoral rolls and that Aadhaar is not mandatory.
“Article 326 is the residuary powers of the EC, which have for instance been used in the past for providing for issuing voter ID cards. But the sections of the Representation of People or the Rules under it do not permit the EC legislative powers. Nor do these sections reflect Aadhaar linkage to be mandatory. So either parliament will have to pass an amendment or the Rules will need to be changed to reflect it as mandatory. At present there is no legislative basis or legal authority for it,” said Apar Gupta, advocate and founder director of the Internet Freedom Foundation.
While the linkage of Aadhaar with voter rolls was legitimised through the Election Laws (Amendment) Act, 2021 and the Registration of Electors (Amendment) Rules, 2022, it “was to be carried out in a voluntary manner”.
“This was also stated in a reply in parliament in which [it was] stated that it is voluntary and there is no penalty for failing to do such linkage. However, the new development is that the EC is now considering how they can be mandatorily linked, which means that if you don’t link Aadhaar under this compulsion your entry will be deleted,” he said.
Exclusion and disenfranchisement
The dangers of exclusion through linking Aadhaar with voter rolls came to the fore in March 2015 when the EC launched the National Electoral Roll Purification and Authentication Programme (NERPAP), which included linking and authenticating the EPIC data with the UIDAI’s Aadhaar data. In August that same year, the Supreme Court in an interim order prohibited Aadhaar from being used for any purpose other than the state-facilitated distribution of food grain and cooking fuel.
While the Supreme Court stopped the exercise, nearly 55 lakh voters in Andhra Pradesh and Telengana were left out of the electoral process due to the linkage of EPIC and Aadhaar taken up by the EC in 2015.
“So the primary concern which emerges from this kind of exercise is of mass disenfranchisement which may occur when Aadhaar is linked to voter rolls,” said Gupta.
“And on a foundational level given that the issuance of Aadhaar has been done on the basis of residency rather than citizenship it also defies any logic or reason how Aadhaar itself will be a database which will enable Election Commission to purify or correct electoral records,” he added.
While the EC’s objective is to remove duplication, fake voters, through the linkage with Aadhaar, the experience of its linkage in public welfare schemes show dangers of exclusion by such linkage.
“The EC may not be relying on Aadhaar as proof of citizenship in any case, it is relying on it as proof of identity without considering the exclusions it causes,” said Anjali Bhardwaj, transparency and anti-corruption activist associated with the National Campaign for Peoples’ Right to Information and Satark Nagrik Sangathan.
“For instance, in the case of the Public Distribution System (PDS), the government said Aadhaar linking will weed out fake beneficiaries but what it ended up doing was excluding genuine beneficiaries because it is the poorest and the most marginalised who do not have Aadhaar cards. This is also because very often they have their names spelt differently in different identity cards, or their age is different in different cards. If such a linkage is made mandatory to voter rolls, it will be denying them their fundamental right to vote because their details are not matching their voter ID and it will present a whole new set of problems,” Bhardwaj added.
Aadhaar as answer to deduplication
Prior to announcing its efforts towards linking voter rolls with Aadhaar, the EC met three separate delegations of the Bharatiya Janata Party (BJP), Trinamool Congress (TMC) and Biju Janata Dal (BJD) on March 11 to discuss alleged irregularities in voter lists. Following the meeting, the TMC, which had first raised the issue of duplicate EPIC numbers, said that now there is credible evidence of Aadhaar being cloned for fake voter registration.
“How will the EC ensure that the alleged cloning of the Aadhaar card will not affect the EPIC card?” said TMC MP Sagarika Ghose after the meeting.
Besides, the Aadhaar experience itself shows that it is not free from threats of duplication.
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The Comptroller and Auditor General (CAG) report on Functioning of Unique Identification Authority of India in 2021 noted that the UIDAI had to cancel more than 4.75 lakh Aadhaar cards in November 2019 for being duplicate.
“There were instances of issue of Aadhaars with the same biometric data to different residents indicating flaws in the deduplication process and issue of Aadhaars on faulty biometrics and documents,” the report said.
Chhokar said that the argument that the present concern to do away with duplication in the voter rolls through linkage with Aadhaar “is totally fallacious”.
“It won’t get rid of duplication because there is duplication in Aadhaar as well. The porosity of Aadhaar and its unreliability has been documented and it will not solve the problem,” he said.
Physical verification and transparency
Questions have been raised over the Election Commission’s lack of transparency over voter turnout data, including in recent state assembly elections and refusal to upload Form 17C. That such questions of transparency will be answered by linking Aadhaar to electoral rolls remains is also not clear.
“They are pretending to find technical solutions to a problem which requires a physical solution,” said Chhokar.
“Physical verification by the EC officials is the only way to solve this problem of duplication. While there cannot be 100% accurate voter rolls, the voter rolls should not have systemic mistakes and that requires physical verification with the EC taking the responsibility and not shifting it to citizens,” he added.
The EC has earlier this month invited the presidents and senior leaders of all political parties at a mutually convenient time for an interaction to “further strengthen electoral processes”.
“Transparency is needed in the election process which the EC is turning away from,” said Bhardwaj.
“Making voter lists accessible through searchable databases or putting up Form 17C are ways to bring in transparency which they are not doing. Instead they are linking EPIC with Aadhaar as a solution that will not fix the problem. There are simple solutions like putting out the voter list in local areas through wall paintings or on the internet so people can verify and ensure no duplication is happening and it can be an exercise in public monitoring. That is a far more citizen friendly and citizen centric way of doing it. Globally, we know that the best way to ensure that there are no fake cards or duplication and ensure accountability is to look for solutions that are likely to work rather than introducing systems that will cause disruptions,” she added.
Privacy and threat to secret ballot
In 2018, while four judges out of a five-justice bench upheld the Aadhaar Act as constitutionally valid dismissing most privacy and welfare exclusion concerns it did not allow for Aadhaar to be made mandatory or to be linked to mobile phones or bank accounts. Former CJI D.Y. Chandrachud who was part of the bench gave a sharp dissent.
While Chandrachud held the purpose of the Aadhaar Act to be legitimate, he differed from the majority opinion in noting that there are not enough robust safeguards as to “informed consent and individual rights such as opt-out”.
He also said while it was now impossible to live in India without Aadhaar, it was violative of Article 14 and if Aadhaar is seeded with every database, then there is chance of infringement of right to privacy.
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“[If Aadhaar is linked with voter cards] at a later time the basis for a person to vote becomes the Aadhaar number rather than the voter roll,” said Gupta.
“Then through a system of electronic voting a person will be biometrically authenticated through their iris or through their thumb print which may also be forecasted for the future,” he added.
Further, Gupta underlined that using Aadhaar for authentication may at best establish a person’s identity but won’t take away the problem of voter fraud.
“Moreover, any kind of biometric authentication leaves a record. This is metadata, authentication will record time of voting which date and if that information is not segregated from the exercise of vote it may take away the secrecy of vote. It will need to be firewalled from the choice of candidate you vote for,” he said.
