Analysing The Constitutional And Legal Sanctity Of Election Laws (Amendment) Bill, 2021

Mass disenfranchisement

The project to link Aadhaar with voter ID cards was first initiated in Telangana in 2015. However, the fallout of this project was witnessed in the 2018 Telangana state assembly elections where lakhs of voters were unable to cast their votes due to the wrongful deletion of their names from the electoral rolls. As per an RTI application, it was revealed that the State Election Commission had deleted nearly 30 lakh names from the voters' list through a software that used Aadhaar cards for identifying duplicate entries.

The exclusion of weaker sections and discrepancy concerns have also been apparent in the past attempts to link Aadhaar with MGNREGA or Public Distribution System schemes. A 2020 study shows that more than 90% of entries deleted during the attempts to link Aadhaar to ration cards in Jharkhand were in fact of genuine households. In 2018, even the CEO of UIDAI had noted that Aadhaar authentication failures for government services is as high as 12%. This translates into millions of affected persons. These experiences reveal the deleterious impact of applying technology in the absence of an understanding of societal complexities. If the processes of such technological application are not sensitive to the social heterogeneities of caste, gender, religion, language and region, then the natural implication is often the exclusion of the vulnerable and marginalised groups.

Undermining secrecy of votes and violation of the right to privacy

Political parties may access voters' data from public databases, such as electoral rolls, as well as from dark data markets where phone numbers and caste data are openly traded. Further, there also exists beneficiary data from the state and central government databases. However, to build a complete picture of a voter, one needs a common connector to link all these databases. This is where Aadhaar becomes immensely useful. Linking Aadhaar with voter IDs would generate a common ID across all databases. Any political outfit getting access to this database can build a complete profile of a voter, including not just their caste, religion, location and family, but their economic and social profile and a history of government benefits availed by them. Access to such data can offer a much better statistical estimate of the individual's voting preference, leading to the undermining of the very essence of secret ballots. Political parties can misuse this sensitive information about the voters gathered from accessing all the government databases using the Aadhaar numbers to swing elections in their favour. The 2018 election report from Karnataka where names of multiple adults were deleted from electoral rolls is apt evidence of this concern.

Linking of multiple databases leading to mass-scale profiling of people also causes concerns around violation of the right to privacy of the citizens. India currently does not have any data protection law and the proposed Bill has wide exemptions for the government to access the personal data of the citizens. For instance, Clause 35 of the Draft Data Protection Bill, 2021 (The Bill) permits State access to personal data on grounds of 'necessity or expedience'. This means that the State can curtail civil liberties simply because it is 'expedient'. This has been envisaged even though the Supreme Court had specifically outlawed the quicksand test of 'expedience' and mandated 'necessity' as a standard in the Rangarajan judgement. Furthermore, with only executive representation in the selection committee of the Data Protection Authority (DPA) under Clause 42 of The Bill, and with the DPA being bound by all the directions of the Central government vide clause 87(2), executive dominance in the privacy governance framework is explicit. Such legislative loopholes coupled with the use of technology without adequate oversight leads to concerns of mass surveillance and commercial exploitation of personal sensitive data without the informed consent of the data principals.

In 2019 a report revealed how data taken from UIDAI databases were allegedly used to delete names of voters in Andhra Pradesh, leading to disenfranchising of members of vulnerable and marginalised communities.

Inconsistency with the Puttaswamy mandate

In 2018, Supreme Court in Aadhaar judgement, [Puttaswmy (II)], held that Aadhaar could be made mandatory to only avail any benefits or services under the Consolidated Fund of India. While the court did not explicitly opine on the legality of linking Aadhaar with voter data, a preliminary examination of the judgement indicates that this is impermissible since Aadhaar's mandatory use was only permitted while availing government 'benefits' and not during the exercise of a legal right.

Moreover, the Apex Court in Puttaswamy I privacy judgement (2017), laid down a four-fold test for impinging upon the right to privacy of the citizens. These conditions include the existence of a legitimate aim, suitability or rational nexus between the infringement of the right and the purpose of the restriction, necessity to test if there is a less restrictive alternative means of achieving the goal and proportionality to check if the benefit that the State gains by restricting the right outweighs the impact of the loss of the right.

To satisfy the necessity test, the state ought to show that linking Aadhaar to electoral ID is the only option to remedy false entries in the voters' list. However, the Election Commission of India has not demonstrated that their traditional methods of door to door verification have not worked and if they have conducted any experiment that proves the success of Aadhaar linking. Accordingly, the proportionality test also stands defeated given that there is proof of the ability of this move to successfully weed out bogus entries while multiple studies and the example from Telangana has shown its impact of disenfranchising millions of marginalised community voters.

The way ahead: Protecting democracy & fundamental rights

The technical discrepancies in the Aadhaar database coupled with the examples of the failure of such projects in the past highlight the need to reconsider the feasibility of the new amendment. This is even more critical given that free and fair elections compose the fundamental essence of any constitutional democracy. Hence, any measure that has dire implications for the fairness of elections or that impinges upon the right to vote of the citizens must be strongly obviated.

Given the concerns around the violation of the right to privacy of the citizens, it is paramount that privacy is accorded statutory protection at the earliest. India must soon legislate a strong and robust data protection legislation with adequate checks and balances on the power of the State to access the personal data of the citizens. This is crucial for seamless implementation of technology-aided public welfare programs by ensuring that such projects do not become a mode of extracting and exploiting personal data of the citizenry and impinging upon their fundamental right to privacy.