Rights watch: Aadhaar and status of Dalits continue to cause concern

Fresh privacy concerns have come to the fore as Aadhaar's mandatoriness becomes a fait accompli. Elsewhere, Dalits' quest for upward mobility and empowerment invites resistance.

—–

THERE are fresh reports of coercion in Aadhaar-voter ID linking, raising privacy concerns. The Parliament, in December 2021, passed the Election Laws (Amendment) Bill, 2021, which allows for the linking of electoral data with the Aadhaar number. The Bill, passed hurriedly, amends the Representation of the People Act, 1950 and the Representation of the People Act, 1951, and adds sub-section (4) to Section 23 of the 1950 Act that would allow the linking of voter identity cards with Aadhaar numbers.

Prima facie, this provision does not seem harmful as it uses the word 'may', that is, the electoral registration officer 'may' require a person to furnish the Aadhaar number. Thus, it makes the linking between two databases voluntary.

However, the ground reality is that this provision is being interpreted as mandatory by electoral officers. On August 18, the Internet Freedom Foundation, a non-governmental organisation advocating for digital rights and liberties, tweeted that one of its staff members received a call from a booth-level electoral officer directing him to give his Aadhaar number or else, his name would be deleted from the electoral roll.

What makes this whole procedure questionable is that the Bill may consider the whole exercise of linking voluntary but the Registration of Electors(Amendment) Rules, 2022, enacted in June, make it mandatory. For new voters, a Form 6 appended in the Rules has to be filled; as per its guideline (4) annexed with the Rules, an Aadhaar number "should" be furnished for the purpose of authentication of entries. If the applicant does not have an Aadhaar number, the same may be mentioned, it says. There is an option for those who do not have an Aadhaar card to submit a copy of a different document. The plausibility of Aadhaar holders availing an opportunity to not furnish their Aadhaar number, therefore, does not arise.

Aadhaar's USP under challenge

Aadhaar's unique selling proposition has been that it cannot be duplicated or forged. It has now emerged in recent proceedings before the Karnataka High Court that there has been frequent fabrication of the documents required to secure Aadhaar. In April, it was reported in the Comptroller and Auditor General of India's report that the Unique Identification Authority of India ('UIDAI') has issued 4.75 lakh Aadhaars with the same biometrics till November 2019. The Karnataka high court's recent direction to UIDAI has only confirmed this.

The high court was approached by the National Investigation Agency ('NIA') alleging that 12 nationals of Bangladesh – some of whom have been convicted in a gang rape case, while some are facing trial in human trafficking and illegal immigration – fabricated information and documents to secure Aadhaar. The high court has directed the UIDAI to provide all such documents to the NIA for the probe.

The NIA approached the Karnataka High Court with a request to procure the information from the UIDAI as the confidential clause under Section 33 of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 prohibits the disclosure of such information. The exception to this is by an order of the court not inferior to the judge of a high court.

Article 17 under focus

Article 17 of the Constitution proclaims that "untouchability" is abolished and its practice in any form is forbidden. It further says that the enforcement of any disability arising out of untouchability shall be an offence punishable in accordance with the law. The word 'untouchability' is not defined in the Constitution, and its applicability to menstruating women prevented from worshipping Lord Ayyappa in the premises of the Sabarimala temple in Kerala, came up for discussion during the hearing of Indian Young Lawyers' Association versus State of Kerala (2018) before the Supreme Court, with the five-judge Constitution bench ruling in favour of the right of the menstruating women to enter the temple for worship.

According to legal scholar Professor Upendra Baxi, the Constitution-makers used inverted commas compendiously to refer to 'permanent' and 'temporary' states of untouchability. Prof. Baxi adds that the Constitution forbids all states of untouchability and imposes a total prohibition on practising it.

The Sabarimala case, having been referred to a nine-judge Constitution bench during the hearing of the petitions asking for review of the 2018 judgment, may be considered inconclusive, but there can be no doubt that the essence of Article 17 of the Constitution will squarely apply to the facts of the recent case in Rajasthan.

A nine-year-old Dalit boy, Inder Meghwal, from Surana village in the state's Jalore district, was allegedly beaten up by his teacher, for touching a pot of water meant for 'upper castes' (however, to be clear, at this point both the Rajasthan Police and the Rajasthan State Commission for Protection of Child Rights are yet to ascertain a caste angle in the crime). Meghwal died as a result of injuries that he suffered.

Article 17 is a horizontal fundamental right, and can be invoked against private individuals. In this case, the State's failure to protect Meghwal from discrimination is an issue. His village is witnessing constant protests, including from some Dalit groups, demanding a fair and impartial trial.

Although Meghwal's death has been sought to be politicised in the state, with the Chief Minister, Ashok Gehlot's rivals holding his government responsible for the plight of Dalits, a look at newspaper headlines will suggest that the problem is indeed widespread. Recently, Uttar Pradesh Minister of State for Jalshakti, Dinesh Khatik, sought to resign, alleging discrimination because he was a Dalit. He was, however, persuaded to withdraw his resignation and continue as a minister.

A recent survey conducted in 24 districts of Tamil Nadu found that many Dalit panchayat presidents were not even allowed to hoist the national flag, nor given access to documents. In 22 of 386 panchayats surveyed by the Tamil Nadu Untouchability Eradication Front, Dalit presidents were not provided chairs in their offices.

Crimes against Dalits in Rajasthan have reportedly registered a sharp rise in the past five years, while there has been an overall increase in such incidents in the rest of the country between 2011 and 2020. This rise has been attributed to resistance from the upper castes to Dalits catching up with them economically.

(With editorial inputs)