India takes great pride in her Election Commission, an independent authority entrusted with the conduct of free and fair elections for the Parliament and state assemblies. It has the reputation of being independent and impartial and ensures that people vote without fear and that there is a level playing field among contestants.
The EC was born one day before the Republic of India, i.e., on January 25, 1950. It is bound to act within the legal framework enshrined in the Representation of People Act, 1951 (RPA). Only Parliament has the power to amend the RPA, which has been done from time to time.
It has been amended a few times in the past 70 years. One notable amendment was the transfer of election petitions from tribunals to high courts, which was why Prime Minister Indira Gandhi’s election petition was heard in the Allahabad High Court where her election in 1975 was declared null and void. But major amendments to RPA have been pending for too long.
There are, for instance, the various recommendations of Law Commissions over many years that have not been implemented. The EC itself has written to the Prime Minister and the government to ensure that some important electoral reform laws are passed by Parliament. But this has fallen on deaf ears. One of the most important suggestions has been to disqualify criminal candidates from standing for election.
As of now, the disqualification criteria in the RPA is too weak and has failed to check the rising number of elected lawmakers who face serious criminal charges. In the absence of any action from Parliament, the Supreme Court has often stepped in to remedy certain anomalies. This is how the NOTA (none of the above) button came on the ballot. This is how we have the instant unseating of convicted lawmakers, even if the criminal case goes for appeal in a higher court.
This is how, thanks to a 2003 judgment, the voters get to know criminal antecedents of their candidates through self-sworn affidavits. None of these reforms were brought in by Parliament but are in force thanks to the Supreme Court in response to public interest litigations. The desire of the public to bring political parties under the ambit of Right to Information is still languishing in the courts.
This reform is also a reform too far. When Parliament has chosen to act, it has often done so with dubious intention. One example is that of introducing electoral bonds, to increase the transparency of political funding. That law makes it impossible to know the identity of the donor or the recipient, negating transparency completely. The word ‘transparency’ is used for this legislation almost in an Orwellian sense! One more recent example of parliamentary action on the RPA is the amendment passed last month.
This is the linkage of Aadhaar with the voter identity card issued by the EC. It was passed in the Lok Sabha on December 20 without any discussion. It was passed in the Rajya Sabha the next day with a voice vote, even when there was strong demand for recording the vote. The video of the voice vote clearly shows the resounding vocal opposition to the bill, but it was still passed.
Be that as it may, the Aadhaar linkage is very problematic, for several reasons. Firstly, this amendment directly contradicts, at least prima facie, the Supreme Court judgment of 2018 which clearly said that Aadhaar was not mandatory for all citizens. Only for those receiving welfare benefits and for a limited purpose only, could Aadhaar be made a requirement.
That was a landmark judgment delivered in what was the second longest case ever heard by the Supreme Court. Secondly, Aadhaar is meant to be a proof of identity, not of citizenship. It was never meant to be proof of being a citizen and of the eligibility to vote. In fact, the construction of the voter roll is a critical responsibility of the Election Commission and cannot be outsourced to another agency outside its ambit. The Aadhaar authority is not under the control of the EC.
The power to add, delete and modify a voter record is with the electoral registration officer, and is circumscribed by the stringent requirement of physical verification. This can’t be outsourced to an authority like the Unique Identity Authority i.e. Aadhaar. When the EC undertook a pilot project, a ‘purification’ exercise in 2015 to link the Aadhaar to voter ID, it was struck down by the Supreme Court.
But some damage had been done in that pilot project in Telangana and Andhra Pradesh. With the Electoral Photo Identity Card (EPIC) and Aadhaar linkage exercise undertaken by the EC as part of its ‘National Electoral Roll Purification and Authentication Programme’, lakhs of voters were affected. Nearly 30 lakh voters in Telangana and 21 lakh voters in Andhra Pradesh were struck off the rolls due to a ‘de-duplication’ exercise which created a big furore.
None of these voters were given a chance for a hearing and neither was the deletion subjected to a rigorous verification exercise, as would have been done under normal EC procedures. Thirdly, even if the current amendment says linking Aadhaar is voluntary, it is not clear what that means. Will the linking be done at enrolment or at voting time? How is the Aadhaar number going to be verified, if not by the biometric method? But that has been explicitly ruled out. Will the electoral officer just put a tick mark against the voter record or will the Aadhaar number be entered? In which case it would be in the public domain, violating a very basic requirement of privacy of the Aadhaar number.
The current wording of the legislation says that denial to furnish the Aadhaar number to the electoral officer, can only be due to a ‘sufficient cause’. Which implies that blanket denial is not to be allowed. The government itself, via an affidavit before the Supreme Court, has said that the Aadhaar biometric identification fails on average, 12 per cent of the time.
That is a huge error margin, especially when elections are keenly fought and winning margins can be as thin as single digits. In Jharkhand, it was found that 88 per cent of the ration cards deleted because of Aadhaar verification failure were genuine cases. So Aadhaar failure invariably is a burden that largely falls on the poor, the vulnerable and the indigent who often live in backward areas lacking in the infrastructure of electricity or connectivity.
Finally, the real fear is that Aadhaar linkage could become a powerful tool for voter profiling, wholesale disenfranchisement, gerrymandering and all kinds of electoral mischief, in the hands of those who have the database. The linking of the Aadhaar with the voter identity card is a path best not taken, or one that should be trodden very, very carefully
(The writer is an economist and Senior Fellow, Takshashila Institution, The Billion Press)
