If the essence of democracy is ‘free and fair elections’, why is the government employing strategies that jeopardise the fairness of elections by opening the doors to manipulating voter information?
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AADHAAR integration has always been a matter of controversy because of the risk it poses to the privacy of an individual. Some bars have been raised by the judiciary after the Supreme Court’s K.S. Puttaswamy judgement of 2018, which stated that “the information received under Aadhaar shouldn’t be provided to any commercial body such as banks, E-payment companies and the court also prohibit schools and telecom companies from seeking Aadhaar authentication.” However, this wasn’t successful enough in the cessation of linking Aadhaar with other personal documents.
Earlier introduced as a voluntary step, Aadhaar was later made compulsory for availing of several public welfare schemes, such as the Public Distribution System Scheme, Mid-day Meal and the Mahatma Gandhi National Rural Employment Guarantee Act. The government has also made linking Aadhaar with a PAN card mandatory for filing income tax returns.
Earlier introduced as a voluntary step, Aadhaar was later made compulsory for availing of several public welfare schemes, such as the Public Distribution System Scheme, Mid-day Meal and the Mahatma Gandhi National Rural Employment Guarantee Act. The government has made linking Aadhaar with a PAN card mandatory for filing income tax returns. If someone’s Aadhaar wouldn’t be linked thus before March 31, 2022, that PAN card would become inoperative from April 1, 2022, and would return to being functional only once linked with Aadhaar.
The sole purpose of Aadhaar was to make welfare systems more effective and to offer direct benefits to the general population, eliminating the need for a middleman. With time, its scope has widened, and possessing Aadhaar has become mandatory.
The Aadhaar system has become a pre-planned step of the union government to establish a comprehensive surveillance system on residents, rather than a tool to facilitate the distribution of welfare schemes.
All this was made under Section 7 of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016, which reads as follows:
Proof of Aadhaar number necessary for receipt of certain subsidies, benefits and services, etc.
The Central Government or, as the case may be, the State Government may, for the purpose of establishing identity of an individual as a condition for receipt of a subsidy, benefit or service for which the expenditure is incurred from, or the receipt therefrom forms part of, the Consolidated Fund of India, [or the Consolidated Fund of State] require that such individual undergo authentication, or furnish proof of possession of Aadhaar number or in the case of an individual to whom no Aadhaar number has been assigned, such individual makes an application for enrolment: Provided that if an Aadhaar number is not assigned to an individual, the individual shall be offered alternate and viable means of identification for delivery of the subsidy, benefit or service. [emphasis supplied by the author]
For the purpose of Aadhaar, the definitions of “authentication” and “demographic information” are given under Section 2(c) and (k) respectively.
According to the abovementioned provision, Aadhaar authentication can be made mandatory by the government for availing the benefit of any subsidy or scheme that falls under any form of Consolidated Fund of India or Consolidated Fund of a state.
As per the proposed aim of the Act, integrating Aadhaar is important to curb the duplication of Voter ID. This is a bogus claim, as Aadhaar itself is susceptible to duplication, and the Election Commission has no control over the methods of issuing Aadhaar by the Unique Identification Authority of India.
In section 7, the term “may” is used, which has a vast scope for interpretation. There is no strict or decisive definition of the term “may” for one to comply with. The Supreme Court, in the case of Sarla Geol & Ors versus Kishan Chand (2009) took the view that if a statute uses the word ‘may’, then it can be read as ‘may’ or ‘shall’ only after understanding the intention of the legislature. It means that “it is not merely the use of a particular expression that would render a provision directory or mandatory. It would have to be interpreted in the light of settled principles, and while ensuring the intent of Rule is not frustrated.”
The intention of the legislature became crystal clear when the government made the authentication of Aadhaar mandatory for schemes and subsidies under consolidated funds, and also made the integration of Aadhaar mandatory for certain documents such as PAN card. With all this, the Aadhaar system has become a pre-planned step of the union government to establish a comprehensive surveillance system on residents, rather than a tool to facilitate the distribution of welfare schemes.
Integration of Aadhaar and Voter ID
With the aid of the Election Laws (Amendment) Act, 2021, which was enacted in December last year, another step towards Aadhaar integration has been undertaken. One of the salient features of this amendment is, it proposes the voluntary linkage of Aadhaar to Voter ID. Such linkage is extremely dangerous, as it will lead to some noxious consequences that are foreseeable.
Also read: Linking Voter IDs with Aadhar Dangerous, Over 500 Citizens, Organisations Write to EC
Earlier, electoral rolls were only available in paper format, but in the past ten years, they have been made available in electronic form and accessible to everyone. At the time of passing the 2021 Act, there was no discussion on data security. As per the proposed aim of the Act, integrating Aadhaar is important to curb the duplication of Voter ID. This is a bogus claim, as Aadhaar itself is susceptible to duplication, and the Election Commission has no control over the methods of issuing Aadhaar by the Unique Identification Authority of India (‘UIDAI’).
Implementing a half-baked plan can lead to a huge data privacy threat to the citizens of the entire country.
One of the primary drawbacks which can be foreseen is that this integration would strengthen electoral malpractices and, in the long run, impair democratic features such as free and fair elections. This opens the door to voter profiling, as happened in Andhra Pradesh and Telangana in 2015, where 55 lakh voters found their names deleted from the electoral database for no specified or legitimate grounds.
Speaking of Aadhaar, it is not evidence of citizenship, but rather of ‘identification,’ and is based on enrolment. That is to say, the sole purpose of it is to provide benefits of welfare schemes to individuals, and it has nothing to do with residence proof. On the contrary, the Constitution declares the Election Commission as an independent body, a guardian of democracy that promotes free and fair elections. Article 324 of the Constitution establishes, “Superintendence, direction and control of elections to be vested in an Election Commission.” The Commission is responsible for preparing electoral rolls and securing all the data regarding voters in its own database, and has its own separation and verification method.
Sharing data of voters could potentially lead to targeted advertisements of several schemes by understanding the pattern of particular voters’ welfare schemes usage and income.
The new amendment, however, fails to clarify the scope of data exchange between the UIDAI and Election Commission databases, which, if not limited, might result in a violation of privacy, which is upheld as a fundamental right and protected by Article 21 of the Constitution by the Supreme Court in 2017. Sharing data of voters could potentially lead to targeted advertisements of several schemes by understanding the pattern of particular voters’ welfare schemes usage and income. Further, it could lead to disenfranchisement of voters from voting rolls if they didn’t link their Aadhaar cards to the Voter ID, or if the voter belongs from an area or community that doesn’t support the ruling government.
Legislative intent
The integration of Aadhaar and Voter ID has several merits and demerits. Though it is important to weed out fake Voter IDs, citizens’ privacy should be a prime concern because it is their fundamental right. Moreover, it raises the question of who will be the arbiter of two datasets that were compiled separately and in distinct ways.
A government institution performing welfare measures is absolutely fine, but if it will interfere in the work of an independent constitutional body, is it constitutionally permissible? According to the law, seeing the intent of the legislature is important for checking the constitutionality of a law, and for understanding the legislative intent. Judges usually check the reports presented in the Parliament and debates that took place in the Parliament at the time of passing a Bill, but no such debate happened while passing the 2021 Act in the Parliament.
Also read: Aadhaar: India’s Honey Pot for Hackers
Further, the Election Commission has been requesting financial autonomy for a long time, and wants its expenditures to be a part of the Consolidated Fund of India, rather than a matter of Parliament voting. If something similar happens in the future, Section 7 of the Aadhaar Act will come into action again, and the government will have the opportunity to make this integration a mandatory step, similar to the previous examples mentioned above. Lastly, and most fundamentally, if the essence of democracy is ‘free and fair elections’, why is the government employing strategies that jeopardise the fairness of elections by opening the doors to manipulating voter information?
