Electoral linking subverts free and fair polls in India
Premium- Beyond the lack of expert consultation and parliamentary debate, the bill itself is problematic as it’s likely to warp election outcomes rather than remove bogus voters
The passage of the Election Laws (Amendment) Bill, 2021, in the winter session of Parliament has ensured the contentious linking of electoral roll data with Aadhaar. The stated reasoning provided within its statement of objects and reasons is, “to curb the menace of multiple enrolment of the same person in different places". Before proceeding on an examination of the merits of the bill, the process followed for its passage deserves comment.
No public consultation was held on the bill. Even our legislators did not get a meaningful chance to deliberate on it. This proposal itself is contentious, given the history of and litigation on the Aadhaar project. The bill was cleared by the Union Cabinet as recently as on 15 December without its content being put to any expert scrutiny. Subsequently, in the last remaining days of the winter session, when attendance of members is historically evidenced to be poor, it was abruptly introduced on 20 December. A few hours later, a revised list of business was circulated for voting and passage. Despite notices filed by several members of the opposition on its introduction and the vociferous protest and demands for a division of votes that followed, the opposition’s calls were ignored. The very next day, on 21 December, the bill was listed for introduction and passage in the Rajya Sabha. A short debate followed, with calls by opposition members for it to be referred to a standing committee for further examination. Again, despite express demands for a division and counting, the Election Laws (Amendment) Bill, 2021, was passed in the upper house as well by a voice vote.
The events in Parliament are disturbing and reveal three clear concerns that strike at the legitimacy of this enactment.
First, a law impacting the voting rights of Indian citizens was rammed through Parliament by force rather than deliberation. Due to the conduct of the government and House chair, parliamentarians were deprived of even an opportunity to propose amendments.
Second, healthy parliamentary practices that insist on the grant of a division of votes especially on contentious issues were ignored. This is reminiscent of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016, that was passed as a money bill, depriving the Rajya Sabha of voting powers.
Third, there were incorrect and constitutionally repugnant rejoinders to the opposition. Here, Kiren Rijiju, the minister of law and justice, stated that the proposal is based on a recommendation of the 105th report of the Standing Committee on Personnel, Public Grievances, Law and Justice. This report is related to action taken on demand for grants and by its very nature is concerned with financial outlays rather than any extensive subject-specific examination. Even references to safeguards under the law are illusory, as they shift the burden on the voter to demonstrate “sufficient cause" that will in the future be defined by rules made by the central government.
In effect, there was no scrutiny of the amendment’s intended benefits and costs. Analysis by technologists such as professor Subhashis Banerjee of IIT-Delhi points to lack of evidence on benefits. He states: “There are no publicly available audit reports either on the efficacy of Aadhaar de-duplication or on the authenticity of the Aadhaar database." However, exclusions caused by the linkage of Aadhaar with databases for rations are well documented. It has been noticed by the Government of India in its own National Economic Survey 2016-17 how it may result in exclusion rates based on authentication errors as high as 49% to as low as 5%. More recent evidence, such as a sample survey by the Abdul Latif Jameel Poverty Action Lab, found that about 88% of the ration cards cancelled in Jharkhand belonged to real households. These are not idle fears, as specific admissions exist by officers such as Telangana’s chief electoral officer Rajat Kumar in 2018 after a controversy arose over people not being able to cast their votes. As per his statements, voter deletions occurred due to Aadhaar linking before the Supreme Court prohibited it. Hence, linking Aadhaar and voter rolls portents a future of mass disenfranchisement even at low levels of exclusion.
Voter profiling is an issue linked to every Indian’s fundamental right to privacy. This includes the mental autonomy to make decisions such as who to vote for. Political parties are given a regulated sphere of activity to canvass votes for elections. These limits have been breached and enabled by Aadhaar, as expressly noted by the chief justice of the high court of Madras in a judicial order passed this year. He noted, “It is apparent… [that a] political party may have resorted to a form of campaigning (sending bulk SMSes with links to join the party’s booth level WhatsApp groups) not permissible under the model code of conduct… the seventh respondent [Unique Identification Authority of India]... [must] ascertain how the personal details of voters may have been leaked from its system". We will not have any system of protection from such leakage in future, as there is no regulatory system for data protection in place and the present proposals permit large government exemptions. Hence, voter targeting and manipulation will become an institutionalized practice in elections that will demand greater resources and favour political parties with greater money power.
In conclusion, the Election Laws (Amendment) Bill, 2021, will most likely change the outcome of elections not by removing bogus voters, but preventing free and fair elections.
Apar Gupta is a lawyer and executive director of the Internet Freedom Foundation
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