In a swift coup against ‘electoral democracy’, the Lok Sabha and Rajya Sabha passed the Election Laws (Amendment) Bill to link voter ID – issued by the Election Commission – with Aadhaar, a 12-digit biometric number issued by the Unique Identification Authority of India, or UIDAI, which is a central government agency. Ab initio, this is gross impropriety since the Election Commission is a constitutional authority established under Article 324 of the Indian Constitution, independent of the government, to conduct elections in a free and fair manner with utmost integrity.
Union Law Minister Kiren Rijiju, while rejecting the Opposition MPs’ arguments that the Bill would violate the fundamental rights of citizens, stated that the amendment was only meant to stop bogus and fraudulent voting. But the fact is that linking voter ID with Aadhaar would not only increase ‘bogus and fraudulent voting’, but millions could also be disenfranchised in due course.
The Narendra Modi government’s move is fraught with serious consequences. RTI replies have revealed that 80 million fake or fraudulent Aadhaar numbers were detected in 2014-15. RTI queries have also shown that manipulation of data is a strong possibility, and this might expose India’s electoral system to outside fraud. The Election Commission of India (ECI) had argued that this linkage would fulfil “legitimate state interest”, laid down as one of the criteria by the Supreme Court in Justice K.S. Puttaswamy case while judging the permissible limit for invasion of privacy. But the question is, whether ECI’s task is to take care of state interest or safeguard citizen’s interest.
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Six reasons why linkage is bad, unconstitutional
There are several strong and solid arguments against voter ID-Aadhaar linkage. First, Aadhaar is not proof of the right to vote. It is not, and was never meant to serve as, proof of citizenship, which is why Aadhaar numbers were issued to all residents and not citizens. Under the Representation of Peoples’ Act, only citizens who are residents of India have the right to vote. Linking the two is senseless, and would be without any basis – while also being a colossal waste of public funds.
Second, this linkage could cause mass disenfranchisement. Previous attempts to use Aadhaar to “clean up” databases of other government registries, like National Rural Employment Guarantee Scheme (NREGS) and public distribution system (PDS), have resulted in mass disentitlement, and thousands of citizens have been arbitrarily deleted from systems without any notice. For example, a study from Jharkhand found that 90 per cent of ration cards cancelled as “bogus” during Aadhaar linking between 2016 and 2018 were real. In 2018, even the CEO of UIDAI admitted that authentication failure for government services was as high as 12% – which translates into millions of affected persons.
Third, voter fraud is likely to increase. Linking Aadhaar would dilute the sanctity of the voter ID database. In 2019, self-reported errors in Aadhaar data were one-and-a-half times higher than errors in the electoral database. The assumption behind linking the two databases is that the authenticity of people’s records in the Aadhaar database will be used to determine the authenticity of a record in the voter ID database.
However, given widespread data quality issues in the Aadhaar database – a result of inadequate enrolment practices and lack of effective correction mechanisms, which have been extensively documented – this exercise would diminish the sanctity of records in the voter ID database. More recent research has also shown that Aadhaar-PAN linking has introduced fraudulent entries into the system.
Fourth, biometric authentication for voting is very risky. The Right to Food campaign has exposed numerous failures in Aadhaar linkage and biometric authentication due to absence of adequate infrastructure and lack of grievance redressal mechanisms in UIDAI’s implementation. Fingerprints don’t work for many people, especially older people and those who labour with their hands, and facial authentication is inaccurate and error-prone. UIDAI has sought to circumvent the inaccuracy and issues in biometric authentication through an ill-conceived “nominee system”, and OTPs in the case of welfare programmes. This will not work in the case of voting in election booths set up in remote and inaccessible locations, where voting has to be processed manually. Besides, EVMs being stand-alone gadgets not connected to the Internet, how will biometric verification work?
Fifth, linking the voter and Aadhaar databases would be an attack on the right to privacy. There are serious concerns that it would violate our constitutional and fundamental right to privacy, and the secrecy of the vote. India currently has no data protection law. Linking Aadhaar to the voter IDs would bring the demographic information into the voter database. This creates the possibilities of increased surveillance, disenfranchisement based on identity and targeted advertisements and commercial exploitation of sensitive private data. In 2019, the Cambridge Analytica scandal demonstrated the disastrous impact that deep and invasive voter profiling had on individuals and on democracies. More recently, the Madras High Court asked the ECI to look into allegations against the Bharatiya Janata Party (BJP) illegally using Aadhaar data of voters in Puducherry for making political gains in the 2021 assembly election.
Sixth, the promise of “voluntariness” in the Aadhaar law cannot be trusted. This is a grossly inadequate safeguard as we have seen in the atrocious manner in which the public was coerced and terrorised to link their Aadhaar numbers with their bank accounts despite the law being voluntary and specific stay orders from the Supreme Court. We have seen how throughout the Aadhaar project, “voluntary” on paper translates to a coercive mechanism in practice.
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A frightening scenario
There are a lot of similarities between voter ID-Aadhaar linkage and linking of Aadhaar numbers with bank accounts. The latter was challenged in the Supreme Court in “M.G. Devasahayam and Ors Versus Union of India and Anr.” The Supreme Court went into its constitutionality and ruled thus:
“(a) We hold that the provision in the present form does not meet the test of proportionality and, therefore, violates the right to privacy of a person which extends to banking details.
(b) This linking is made compulsory not only for opening a new bank account but even for existing bank accounts with a stipulation that if the same is not done then the account would be deactivated, with the result that the holder of the account would not be entitled to operate the bank account till the time seeding of the bank account with Aadhaar is done. This amounts to depriving a person of his property. We find that this move of mandatory linking of Aadhaar with bank account does not satisfy the test of proportionality….
(c) The Rules are held to be disproportionate.”
The Supreme Court has declared the linking of Aadhaar card with a cash instrument like bank account as “deprivation of property” and therefore unconstitutional. Linking the same card with voter ID could deprive citizens of their basic democratic right to elect a government and therefore would be doubly unconstitutional.
A frightening scenario is that voter ID linked to an Aadhar would be linked to a mobile phone, which in turn would be linked to social media. This social media is linked to algorithms, which in turn are linked to user interests/views. Since there is no data protection law to regulate, voter profiling, selective exclusion and targeted campaigns are all possible. Perhaps this is the real objective of the law and not eliminating bogus voting as being claimed.
Voter profiling and disenfranchisement would be a lethal combination that could sink India’s electoral democracy.
M.G. Devasahayam is a retired IAS officer and chairman of People-First. He also served in the Indian Army. The author is part of the group that helped draft a statement, part of which was published by Rethinking Aadhaar. Views are personal.
(Edited by Prashant)