Opposition to a credible way to stop electoral fraud by a voter has surfaced again. The Supreme Court issued a notice to the union government yesterday, responding to a petition that challenged the power of the Election Commission to link the Aadhaar database with voter identity cards. A division bench of Justices SK Kaul and Abhay S Oka heard the petition filed by Maj Gen (Retired) SG Vombatkere, which challenged the constitutional powers of the Election Laws (Amendment) Act, 2021, amended Section 23 and Section 28 of the Representation of People’s Act, 1950, the Registration of Electors (Amendment) Rules, 2022 and two notifications regarding Aadhaar-Voter Card linkage.
Justice Kaul, addressing the petitioner, remarked, “Your argument seems to be that one lacking Aadhaar, voting should not be denied or even on having it, shouldn’t be compulsory.”
Why does the government want to link electoral rolls to Aadhaar?
The Narendra Modi government believes that this link with the largest biometric identification system in the world will solve the problem of multiple enrolments of a given person at different polling centres. Once a voter’s Aadhaar and voter identity cards are linked, the electoral roll data system will instantly alert the existence of previous registration(s) whenever a person applies for new registration. This will help clean the electoral roll to a great extent and facilitate elector registration in the location where they are “ordinarily resident”, a government official had said in this context.
A parliamentary standing committee report on the demands of grants of the Ministry of Law, presented in Rajya Sabha on 6 March 2021, had said: “The Committee has been advocating linkage of unique Aadhaar ID Card number with voter I-card which would streamline alterations in EPIC [Electronic Photo Identity Card] during change of ordinary residence by the electors. The incidence of multiple entries could also be eliminated which is required in participative democracy…”
The Election Commission launched a drive on 1 August to link voter identity cards with their Aadhaar details. The commission said again that the aim of the exercise was to establish the identity of electors and authenticate entries in the electoral roll, and identify if the same person is registered in more than one constituency or more than once in the same constituency.
Petitioner’s opposition to Aadhaar-voter ID cards linking
Last year in December, the union government had turned the Election Laws (Amendment) Bill, 2021, into law, thus amending the Representation of the People Act, 1950, and the Representation Act, 1951, with a view to implementing certain electoral reforms.
Now, Section 23(4), which was added to the Representation of the People Act of 1950 stated that an electoral registration officer may demand a voter’s Aadhaar number to
- establish his or her identity
- or authenticate entries in the electoral roll
- and identify the registration of the name of the same person in the electoral roll of more than one constituency or more than once in the same constituency
The revised law states further that no individual will be denied inclusion in the electoral roll or have their names deleted from the roll if they are unable to furnish their Aadhaar number due to “sufficient cause as may be prescribed”. In the absence of the Aadhaar card, a voter may provide alternative documents prescribed by the government.
Opposition parties strongly resisted the revised law. They cited Law Minister Kiren Rijiju’s statement made earlier that linking Aadhaar with the voter identity card was voluntary. “It is not compulsory or mandatory,” the minister had said.
The opposition criticised the Election Laws (Amendment) Act, 2021, which enables the linking of electoral roll data with the Aadhaar ecosystem. Manish Tewari of the INC said: “The linking of voter IDs and Aadhaar violates the fundamental right to privacy as defined by the Supreme Court in the judgment.”
AIMIM head Asaduddin Owaisi, who had opposed the bill before it was passed, said in the parliament that the government could use voter identity details for “disenfranchising some people and profile the citizens”. “This bill is outside the legislative competence of this House… The linking of voter ID with Aadhaar violates the fundamental right to privacy defined in Puttaswamy (the Justice KS Puttaswamy (Retd) and Another versus Union Of India and Others case),” Owaisi said.
The case Owaisi referred to, also known as the ‘right to privacy verdict’, is a landmark decision of the Supreme Court of India, which holds that the right to privacy is protected as a fundamental right under Articles 14, 19 and 21 of the Constitution of India.
The CPI(M) had said once that the linking would violate the secrecy of the vote and undermine the fundamental right to privacy of the voter.
Appearing for the petitioner, Senior Advocate Shyam Divan argued that the right to vote was one of the “most sacred rights” and cannot be denied if a person lacks an Aadhaar card. While the law allows people to furnish alternative documents on the basis of “sufficient cause,” the petitioner referred to Form 6B, which was added when the government notified changes to the Registration of Electors Rules 1960, in June 2022.
According to Form 6 and Form 6B, Divan argued, the option of showing another identity proof was available to the voter only if he or she did not have an Aadhaar number. “An option of being unwilling to furnish an Aadhaar number if alternatives are available is not permitted,” the court order further stated of the argument.
Drawing attention to the judgement in the Puttaswamy case, which dealt also with the validity of the Aadhaar card, the counsel for the petitioner argued that the Aadhaar card can only be made mandatory if a certain benefit of subsidy were to be sought and not if there were to be an intrinsic right, such as the right to vote.
The petition argues that the linking poses a major threat to the independence of the Election Commission as the preparation of the electoral rolls depends on the processes of Aadhaar, a process it has no control over.
The petitioner stated further that the linking could deter people from exercising their right to vote and compromise the secrecy of the vote.
Arghya Sengupta, founder and research director at Vidhi Centre for Legal Policy, had raised concerns before the bill became law last year, saying, “The first justification provided is that bogus voting where one person is voting more than once is taking place… If you’re saying you have to provide it along with your voter ID whenever you go to vote… this will only work if providing Aadhaar is mandatory. However, this section in the law is a bit complicated because it does seem voluntary but the reasons on the basis of which I can choose not to link my Aadhaar will be prescribed by the government for ‘sufficient cause’. Now what that sufficient cause could be is not mentioned in the Bill?”
“This should be made clear,” Sengupta added.