Election Reforms, 2021: A Critical Analysis

ABSTRACT

An Election is a rudimentary medium for a functioning democracy, from paper ballots to EVM, Election Reforms have been in constant change, but the principles viz, right to be on the electoral roll and right to vote are upheld with the highest sanctity. However, the Election Reform Bill of 2021 may tarnish these principles as it requires the Voters to furnish Aadhaar to the election officer for verifying their identities. This article will point out the issues in this Bill and also the steps that may be taken now to ease up these drawbacks. 

INTRODUCTION

Election laws (Amendment) Bill, 2021 was passed by the Rajya Sabha on 21 December 2021, but the Bill met with strong opposition with the demand to send the Bill for reconsideration to the standing committee for better scrutiny of the Bill and collecting the evidence of its advantages. As per Kiren Rijiju (Minister of Law and Justice), this Bill has been drafted to curtail the problem of registered voters getting registered in more than one constituency, as it is a duty of the Centre under section 17 of The Representation of the People Act, 1950. This problem has been a result of the frequent shifting of residence. In order to attain this objective, the electoral registration officer, if he/she deems fit, may require a person to furnish their Aadhaar number for establishing their identity into the electoral roll. It was also added that the application for enrolment in the electoral roll would not be rejected for the reason that Aadhaar was not provided for verification of identity. However, in 2016 when the Aadhaar Act was passed, it mandated the people to apply for an Aadhaar card to get the subsidy, benefit, or service under governmental schemes, contradicting the initial purpose of keeping the Aadhaar voluntary. It was observed that telecom companies, entrance test agencies, and government schemes did not give much room to alternative methods of identification, and gradually Aadhaar card got the status of a de facto mode of verification. Likewise, it could be expected that Aadhaar card will potentially eliminate the significance of Voter ID by making it dependent on the Aadhaar database.    

GROUNDS TO REPUDIATE       

1. Bypassing Justice K S Puttaswamy Retd and Another v. Union of India Judgement.

In this case, 5 judge bench of the Hon’ble Supreme Court of India upheld the validity of the Aadhaar Act, 2016. The Court directed the Centre to make sufficient data protection measures to safeguard the privacy of the citizen, which is a fundamental right under Article 21 of the Constitution and further held that the Aadhaar Card Scheme is purely voluntary and must be kept this way until otherwise decided by the Supreme Court. The compulsory linking of Aadhaar Card with mobile number, Pan Card, and Voter ID was held as an invasion of privacy. However, this approach may not be valid at every instant, as the restriction on privacy is valid if the act satisfies the three-fold test- i. Act is backed by law ii. Legitimate State Interest iii. Proportionality [Puttaswamy Judgement ¶ 386(2)]

After going through with the three-fold test, the Court held that Aadhaar card verification could be made mandatory ‘if’ the people want to avail benefits(e-KYC, PFMS, MicroATM) and subsidies(LPG subsidy) provided by the government.[Puttaswamy Judgement ¶ 203] It is vital to note that the word ‘if’signifies the choice of the people to either opt for the benefits or not, but voting is not a state benefit, it is a constitutional right of the citizens and the cornerstone of democracy, no judgements have followed after Puttaswamy on privacy, but mass surveillance on voting population and non-consensual use of its biometrics would distress the privacy of citizens, thereto, linking of Voter ID and Aadhaar is not under the purview of Puttaswamy judgement as it debases the privacy of voters without providing any new benefits to them.

2. Voter Fraud and Inadequacies in Aadhaar

There was a linkage of electoral photo identity card (EPIC) in 2015, whereby 55 lakh voters in Andhra Pradesh and Telangana were left out of the electoral process, primarily because the chief electoral officer at that time began the process of linking Aadhaar data with EPIC or voter identity cards under National Electoral Roll Purification and Authentication Programme (NERPAP). To remove the fake voters out of the electoral rolls, Election Commission started removing voters, but the Supreme Court in 2015 by an interim order stopped this process as it resulted in the removal of genuine voters.

The Comptroller and Auditor General (CAG) of India on 6 April 2022 has tabled his report on the functioning of UIDAI, mainly pointing out two deficiencies in the organization, first, Aadhaar cards have been issued with incomplete documents, and independent partners have not been restricted to store personal data, leading risk of privacy. Second, UIDAI has no Data Archival Policy, procedures for the removal of redundant data, retention of relevant data, and safe disposing of personal data is not properly monitored.

Former CEO of UIDAI Ajay Bhushan Pandey made a presentation before the Supreme Court and stated, statistics show that Aadhaar based biometric authentication for government services has a 12% failure rate. In Uttar Pradesh, a special task force in 2017, arrested 10 gang members who were successful in breaking the ‘source code’ of the Aadhaar application and also cloned fake fingerprints. These kinds of instants are evidence of inaccuracies in the Aadhaar database. Hence, to approve the identification of voters based on an Aadhaar card is a precarious situation because the leaks and bogus Aadhaar can be used to target a particular religion or caste. A set of algorithms can be made for profiling the minority voters with Aadhaar database, posing a fear of constant surveillance and deliberate exclusion from the electoral roll. 

3. Precedent from the UK              

In 2010, UK Government introduced a bill to fight ID fraud and illegal employment by issuing a nationwide ID card with a unique number and biometric details for each individual. The ID shall be linked with 50 categories of information and will record the login when and where the card was used. The government was adamant about enforcing this ID scheme and issued 10,000 cards; however, after the national election, this scheme was scrapped. Subsequently, the data stored from 10,000 ID was destroyed.

The reason behind the scrapping of the ID scheme was the vehement opposition from the privacy and liberty advocates. Who termed this as “lifelong surveillance” and argued that this legislation would defeat the idea of privacy and personal liberty. Finally, UK government bent to the demand and respected the personal liberty of each individual over administrative convenience. This failed policy has some evidentiary value, highlighting the risk of privacy by linking a large personal database with a single ID, and adding Voter IDs further would amplify this risk.

IMMEDIATE STEPS REQUIRED

The Personal Data Protection Bill, 2019 

As the Election laws (Amendment) Bill, 2021 has already been passed, it is high time to pass the Personal Data Protection Bill, 2019. The aim of this bill is to protect personal data and to establish the Data Protection Authority (“DPA”). It has been suggested that this bill divides the data into three parts- personal data, sensitive personal data, and critical data. Although the government will have all the rights to store the private data of the citizens, it will provide protection against the corporations that store the users’ data without their consent. This bill is said to be based on the principle of the right to be forgotten, the right to access data, and the right to data portability. This Bill hands the government the accountability and authority to manage voters data by accessing it, transferring it, and destroying it; if a third party by some means acquires it.

Improving Aadhaar Process

Aadhaar database should be reliable if the government wants to rely heavily on it. UIDAI should take the responsibility of updating the biometrics free of charge. The Aadhaar Centers should have the capacity to handle a large population. Improper documentation and biometrics have resulted in duplicate Aadhaar, this problem must be resolved to eliminate the possibility of double voting.

CONCLUSION

The concept of a nationwide ID card has been hurting the privacy of the citizens, but many countries(China, France, Pakistan) are still following this, as it claims to assist them with administration ease. Similarly, in India, due to Aadhaar, policymaking progress has been made more efficient, for e.g.,  Prime Minister’s Public Wealth Scheme (PMJDY) has been a huge success as it has helped in opening bank accounts for more than 300 million Indians. However, lawmakers should contemplate the danger of linking every identity of its citizens with a single numeric number, which based on past events is not invulnerable. Fundamental rights (the right to privacy) and Constitutional rights (the right to vote) go far beyond administrative convenience and the national interest because they are the foundation of civil liberties and obstacles to authoritarianism.