Why Electoral Reform Bill is a problem

the government In a rush to get the Election Laws (Amendment) Bill, 2021 passed in Parliament, also amended Representation of the People Act, 1950 By providing the facility of linking the Aadhaar number of an individual with the voter list data.

The amendment provides that an Electoral Registration Officer may “require” an individual to furnish his Aadhaar number in order to establish his identity. Even those already enrolled may be “required” by the officer to present their Aadhaar number to authenticate their entries in the electoral roll. Registered voters have the option to provide their Aadhaar number to government officials. The amendment states that no one shall be debarred from being included in the electoral roll, nor shall their names be removed from the electoral rolls because of their inability to furnish the Aadhaar number “for such sufficient reason as may be prescribed”. Cause. Such persons may be permitted to produce alternative documents as may be prescribed by the Central Government.

There are various substantive and procedural concerns with the amendments passed. First, though the government has termed these measures as voluntary, the provisions of the amendment rely on it. The election officer apparently has unbridled discretion – since the law sets no guiding principle – to decide when an Aadhaar number may be “necessary”. In addition, the Central Government has the final authority to determine the conditions (“substantial cause”) under which a person shall be permitted to enter or remain on the electoral roll in case of “inability” to present his Aadhaar.

This means that the central government will decide what reasons are considered acceptable for a voter to continue in the electoral roll. Interestingly, the law does not even consider a situation where an individual can oppose the linking of his/her Aadhaar number with the electoral database – further diluting the voluntary basis for the amendments.

burden of proof shift

In this way, the burden of proof is reversed. Instead of actively ensuring registration on the electoral rolls (such as through door-to-door verification) to achieve universal adult suffrage, the burden now shifts to individuals who are unable/unwilling to link their Aadhaar. so that they can justify their retention. Rolls. In fact, deletion from the electoral roll will happen without any procedural safeguards, as the law at present does not provide for the right to be heard before such deletion.

editorial | Thinking about linking voter list with Aadhaar before linking

Such a move has real world consequences. In 2015, media reports described how lakhs of voters in Andhra Pradesh and Telangana were left out of the electoral process because of the practice of linking Aadhaar numbers to electoral IDs. Right to information responses indicate that such deletion was done without door-to-door verification of the identities of the individuals. The Supreme Court of India eventually had to intervene to stop the linking process after the constitutionality of the Aadhaar Act was challenged.

political profile

Second, there are concerns that the amendment will result in a political framework. By linking the electoral ID to the Aadhaar number, it is very easy for the government to track which voter has received welfare subsidies and benefits using his Aadhaar. It can be used by political parties to target their messages to specific voters, using information that is not publicly available.

Talk of political profiling using Aadhaar data is not unheard of. In April 2021, the Madras High Court asked the Unique Identification Authority of India (UIDAI) to find out how confidential information held by it could be leaked in the light of “credible allegations” that only mobile phones linked to Aadhaar cards could be leaked. Bulk SMS messages were received. Join the WhatsApp group of a particular political party during election campaign in Puducherry. Given these concerns, it is worrisome that the amendment is explicitly silent in reiterating the secret nature of such data or preventing the Election Commission of India or any other agency from sharing such information.

There are also procedural concerns which pertain to the manner in which the amendment was passed. The government introduced the bill on 20 December and passed it in the Lok Sabha on the same day, while moving it through the Rajya Sabha on the next date (21 December). Members of Parliament were not given time to understand or debate the implications of the amendments. Despite calls for division of votes in both the houses, the law was passed on the basis of voice vote. This undermines the basic premise of parliamentary democracy – giving elected representatives the opportunity to voice their constituents’ concerns over the laws that affect them.

not certified

This is particularly important as the government has failed to provide any empirical data that shows either the problem of bogus voters in electoral rolls (justifying this extraordinary measure) or the success of Aadhaar in de-duplication. It is now well known that the Aadhaar database is riddled with errors and exclusions. This is partly because there is no verification of the authenticity of the demographic information on the Aadhaar database, i.e. UIDAI does not independently authenticate the information provided by the applicant at the time of enrollment.

In fact, both the Calcutta High Court and the Allahabad High Court have refused to rely on the authenticity of the Aadhaar data, observing, “There is certainly something wrong with the Aadhaar enrollment process if important demographic information such as that of the applicant’s father is The name, as at hand, can be falsified and even go undetected.”

Finally, it is worth questioning how the Aadhaar project is once again being used for purposes that go far beyond the so-called “welfare” objective, which was upheld by the Supreme Court of India. Aadhaar decision as a basis for introduction of Aadhaar Act as Money Bill in Parliament.

It is likely that some of these issues will be tried before the Supreme Court. One can only hope that unlike other issues like electoral bonds, which have been pending for years, this challenge will be resolved expeditiously. The success of our democracy may to a large extent depend on it.

Vrinda Bhandari is a lawyer in Delhi