Concerns over privacy infringement, potential targeted disenfranchisement and voter profiling have gone unanswered as the Parliament passed a legislation which could have dire effects on the election process.

Women standing in line holding up their Aadhaar, the government's move towards Aadhaar-voter ID linking has faced major criticismImage for representation/PTI
news Law Thursday, December 23, 2021 - 12:48

A Bill that allows linking of Aadhaar with electoral roll data was passed in the Rajya Sabha on December 21, a day after it was cleared in the Lok Sabha. The Election Laws (Amendment) Bill, 2021, which is bound to have a serious impact on the functioning of Indian democracy, was passed hastily without gathering public opinion, and without much debate in both Houses. The Union government and Election Commission of India have claimed that the move is meant to clean up electoral rolls by removing bogus voters and duplicate entries, and make the  electoral process more credible. Contentions of opposition parties, who raised concerns over the Bill’s infringement over citizens’ rights, went mostly unanswered. 

Opposition leaders pointed out that the Bill would violate the Supreme Court judgment on Aadhaar, and that it violates the requirements laid down in the Puttaswamy judgment which ruled that right to privacy is a fundamental right. AIMIM MP Asaduddin Owaisi contended that the Bill would allow the government to profile and disenfranchise voters, while Congress MP Shashi Tharoor noted that Aaadhaar was only meant to be a proof of residence and not of citizenship. Union Law Minister Kiren Rijiju failed to satisfactorily answer these concerns, and insisted that linking Aadhaar with voter ID is in the interest of the state. TNM spoke to a privacy researcher, lawyer and former bureaucrat to understand the concerns around the Bill and its implications for the election process in India.  

Erroneous or targeted disenfranchisement 

The project of mapping Aadhaar with voter ID cards or EPIC (Electoral Photo ID Card) to ‘purify’ electoral rolls was started seven years back, with the National Electoral Roll Purification and Authentication Programme (NERPAP). Like many experiments in technology in India, it was first rolled out in the Telugu states, starting with a pilot in Nizamabad and Hyderabad. This Telangana experiment was considered as a model for the exercise carried out across states from March 2015, before it was halted by the Supreme Court in August in the same year. 

The fallout of the project was seen in the 2018 Telangana Assembly elections, when lakhs of voters were unable to cast their votes as their names were missing from the electoral rolls. An RTI response revealed that the Telangana State Election Commission had used Aadhaar to delete nearly 30 lakh voters using a software meant to identify duplicate entries, without carrying out proper door-to-door verification or serving notices to all the voters being deleted  to reapply for voter ID in case of wrongful deletions. 

Former IAS officer PV Ramesh, who was in-charge of Aadhaar enrolments for Direct Benefit Transfers in united Andhra Pradesh where Aadhaar was first rolled out, notes that the potential of exclusion, especially of those who belong to weaker sections, those who are infirm or elderly or living in remote areas, has always been high, as evidenced by many studies. 

Exclusions and discrepancies have also been widespread in attempts to link Aadhaar to PDS or MGNREGA. A 2020 study found that in Jharkhand, when the previous BJP government pushed for linking Aadhaar to ration cards to remove fake or duplicate cards, almost 90% of the deleted cards belonged to genuine households. Activists have also questioned the quality of the Aadhaar database, and whether it was likely to dilute the voter ID database instead of ‘purifying’ it, leading to increased voter fraud.   

During the 2018 Telangana Assembly elections, opposition leaders in the state had alleged that the large-scale voter deletion was a case of targeted disenfranchisement, carried out at the behest of the ruling TRS to remove those who were profiled as opposers of the party.

The Election Laws (Amendment) Bill, 2021 will allow Electoral Registration Officers at the constituency level to seek Aadhaar number of people who want to register as voters for establishing their identity, and also those who are already included in the electoral roll, to identify duplicate entries.

Noting the dangers of disenfranchisement of oppressed groups, PV Ramesh says, “Voter enrollment in any democracy is considered sacrosanct and is supposed to be politically neutral. But that doesn’t happen in the Indian reality. Unless there is a very conscientious effort, if technology is applied without a humane understanding towards the complexities of our society, and the heterogeneities of language, region, religion, case, gender. If the process is not sensitive to this, the natural process is to exclude the weakest. This (Aadhaar-voter ID linkage) can be used as a weapon to exclude all minorities, all Adivasis, or at least majority of them.” 

Activists have also noted that using biometric authentication for voting could also lead to large-scale exclusions, as fingerprints and facial authentication through Aadhaar are frequently prone to errors, especially in the case of elderly persons and those involved in manual labour. 

Voter profiling 

In March 2019, ahead of Assembly and Lok Sabha elections in Andhra Pradesh, a private firm which had developed the Telugu Desam Party’s app Seva Mitra was booked for data theft. The firm IT Grids was alleged to have stolen data related to Aadhaar, electoral rolls and beneficiaries of government schemes from the government database for the app, to further the TDP’s prospects in the elections. Cyberabad police had said at the time that the app had comprehensive profiles of voters along with an option to identify their party-wise affiliations.  

Earlier this year, the Madras High Court expressed concern over a PIL alleging that the BJP in Puducherry had misused Aadhaar data of voters and sent campaign related messages to mobile numbers linked to Aadhaar. 

There is a huge potential for weaponising data available with governments for welfare schemes and other measures, notes PV Ramesh. “After the formation of Andhra Pradesh, for establishing loan waiver protocol, data on Aadhaar, ration cards, land records and bank accounts were triangulated. Although it had a few issues, it was extremely useful. But there is also huge potential for weaponising the data gathered under e-governance initiative to target political messaging,” he says. 

Secrecy of vote

Linking Aadhaar to electoral rolls, along with the push for network based voting, would mean the end of the secret ballot, says Srinivas Kodali, an independent researcher on open data and  governance. Noting the inadequacy of data protection laws in the country, PV Ramesh says, “I still see a value of technology in welfare programs to have a transformative role in society. But the status of data privacy is so tenuous that the political party in power, or with the financial resources to access this data, would know whom I have voted for, sooner or later. The whole purpose of keeping the voting process anonymous gets defeated.” 

“In these days of lynching and blood and gore, one can expect quite a few lynchings to follow and murders to happen,” he adds. 

Pointing to the various experiments related to online voting in Telangana, from using facial recognition to eliminate bogus voters to mock elections to test smartphone based voting, Srinivas says that all of these steps are essentially towards building Aadhaar based voting. 

The ECI, which has been working with IIT-Madras on blockchain-based remote voting, has said that considerable development in this direction is expected by the 2024 General Elections. “Though we don't know what form it'll take by the time it is implemented, it’s very likely to involve some form of network based voting,” Srinivas says, adding that this necessarily brings questions of privacy and disenfranchisement into play. Without anonymity, voters could be asked to show who they’re voting for to receive bribes, and easily be coerced to vote for a particular party, he notes. 

“What’s happening in Telangana is also very global, where there is a push to move towards blockchain based or digital ID based voting, for which experiments are happening here,” he notes, referring to experiments of electronic voting in Estonia and biometric voting in Kenya and noting that the implications must be understood in this context as well. 

Srinivas calls the move a push towards a larger restructuring of Indian democracy and economy. “Centralising the election process, along with the BJP’s one nation-one election idea, would benefit national parties while helping corporate companies to to bet on one national party across the country, to get a unified market,” he says, adding that this could lead to disastrous consequences for democracy in India. 

Right to privacy violation 

One of the major contentions against the law raised in Parliament was that it violates the requirement of proportionality under the Puttaswamy judgment on right to privacy. Maansi Verma, a lawyer who is part of the Rethink Aadhaar project, explains that as per the conditions laid down in the Puttaswamy judgment, for the government to impinge on the right to privacy, mere existence of a law is not sufficient. The proportionality test must be fulfilled, which firstly requires a legitimate State aim. 

“The government or ECI has not shown any data on the extent of the issue of bogus voters or duplicate entries. Even if it is a legitimate aim to ensure the electoral rolls are accurate, to vaguely say there are duplicate entries without showing any evidence of the same, does not pass the test of legitimate aim,” Maansi says. 

Another condition for proportionality is that the government must prove that linking Aadhaar to voter ID is the only option available. “The government must be able to show they have tried other ways which were not as effective, so this is the only option available. So despite the intrusion of citizens' right to privacy, they can say that we are pursuing this, and this much infringement of privacy would be accepted as it is proportional to the gains coming out of the move. But the ECI hasn't shown why their traditional methods of verifying identity of voter —  like door to door verification — haven’t worked, and whether they have tried any other methods, conducted any experiments to show that something like this has actually worked,” she says, noting that on the other hand, there is actual evidence of the move leading to mass disenfranchisement in Telangana. 

She notes that none of these concerns were adequately addressed by the Law Minister while passing the Bill. 

While the Union government has claimed that voter data will remain with ECI and not be made public, and that the Aadhaar linking would not be made mandatory, activists opposing the move note that considering how the Aadhaar project has been implemented in the past, such assurances cannot be relied upon. 

Watch: Aadhaar-voter ID linking: The major concerns over govt’s move 

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