The story so far: Reports have surfaced online of instances where block level officers have asked individuals to link their Aadhaar with their Voter IDs, failing which their Voter IDs could be cancelled. This comes in the aftermath of the Election Commission’s (EC) campaign to promote the linkage of Voter ID and Aadhaar that began on August 1. In the first ten days since its launch, the campaign saw almost 2.5 crore Aadhaar holders voluntarily submitting their details to the EC.
Why does the government want this?
The EC conducts regular exercises to maintain an updated and accurate record of the voter base. A part of this exercise is to weed out duplication of voters, such as migrant workers who may have been registered more than once on the electoral rolls in different constituencies or for persons registered multiple times within the same constituency. As per the government, linkage of Aadhaar with voter IDs will assist in ensuring that only one Voter ID is issued per citizen of India.
Is the linking of Aadhaar with one’s Voter ID mandatory?
In December 2021, Parliament passed the Election Laws (Amendment) Act, 2021 to amend the Representation of the People Act, 1950, inter alia. Section 23(4) was inserted in the Representation of the People Act, 1950. It states that the electoral registration officer may “for the purpose of establishing the identity of any person” or “for the purposes of authentication of entries in electoral roll of more than one constituency or more than once in the same constituency” for citizens already enrolled, require them to furnish their Aadhaar numbers.
To reflect this amendment, in June 2022, the government notified changes to the Registration of Electors Rules, 1960. Rule 26B was added to provide that “every person whose name is listed in the roll may intimate his Aadhar number to the registration officer”. Although, the use of discretionary language throughout the amendments have been accompanied by assurances by both the government and the EC that linkage of the Aadhaar with Voter ID is optional, this does not seem to be reflected in Form 6B issued under the new Rule 26B.
Form 6B provides the format in which Aadhaar information may be submitted to the electoral registration officer. Form 6B provides the voter to either submit their Aadhaar number or any other listed document. However, the option to submit other listed documents is exercisable only if the voter is “not able to furnish their Aadhaar number because they do not have an Aadhaar number”. To that extent, the element of choice that has been incorporated in the amendments seem to be negated or at the very least thrown into confusion.
Why is the mandatory linking of Aadhaar to the Voter ID an issue?
The preference to use Aadhaar for verification and authentication, both by the state and private sector, stems from two reasons. First, at the end of 2021, 99.7% of the adult Indian population had an Aadhaar card. This coverage exceeds that of any other officially valid document such as driver’s licence, ration cards, PAN cards etc that are mostly applied for specific purposes. Second, since Aadhaar allows for biometric authentication, Aadhaar based authentication and verification is considered more reliable, quicker and cost efficient when compared to other IDs.
But these reasons do not suffice the mandating of Aadhaar except in limited circumstances as per the Puttaswamy judgment. It needs to be considered whether such mandatory linkage of Aadhaar with Voter ID would pass the test of being “necessary and proportionate” to the purpose of de-duplication which is sought to be achieved. In Puttaswamy, one of the questions that the Supreme Court explored was whether the mandatory linking of Aadhaar with bank accounts was constitutional or not. The Court observed that the mandatory linking of Aadhaar with bank accounts was not only for new bank accounts but also existing ones, failing which the individual will not be able to operate their bank account. The Court held that depriving a person of their right to property for non-linkage fell foul of the test of proportionality. Even though the situation at hand is slightly different in that other means of verification and authentication are allowed if the person does not hold an Aadhaar, given the wide coverage of Aadhaar, the current design would in effect mandate Aadhaar linkage. In this context, it needs to be considered whether requiring an Aadhaar holder to mandatorily provide Aadhaar for authentication or verification would not be considered violative of their informational autonomy (right to privacy) which would allow them to decide which official document they want to use for verification and authentication.
Moreover, in Lal Babu Hussein (1995), the Supreme Court had held that the Right to vote cannot be disallowed by insisting only on four proofs of identity — voters can rely on any other proof of identity and obtain the right to vote.
What are the operational difficulties?
First, the preference to Aadhaar for the purposes of determining voters is puzzling as Aadhaar is only a proof of residence and not a proof of citizenship. Therefore, verifying voter identity against this will only help in tackling duplication but will not remove voters who are not citizens of India from the electoral rolls.
Second, the estimate of error rates in biometric based authentication differ widely. As per the Unique Identification Authority of India in 2018, Aadhaar based biometric authentication had a 12% error rate. This led the Supreme Court to hold in Puttaswamy that a person would not be denied of benefits in case Aadhaar based authentication could not take place. This concern is also reflected in the previous experiences of using Aadhaar to clean electoral rolls. A similar exercise undertaken in 2015 in Andhra and Telangana led to the disenfranchisement of around 30 lakh voters before the Supreme Court stalled the process of linkage.
Lastly, civil society has highlighted that linking of the two databases of electoral rolls and Aadhaar could lead to the linkage of Aadhaar’s “demographic” information with voter ID information, and lead to violation of the right to privacy and surveillance measures by the state. This, however, would seem to be the case with the use of any other officially valid document to verify or authenticate the identity of the voter. This would leave the EC with the option of verifying its information only through door-to-door checks. It also needs to be noted that the Puttaswamy judgment, after reviewing the Aadhaar architecture, held that the use of biometric based authentication and verification, did not lead to the creation of a “surveillance state”. To address these concerns, one needs to have enforceable data protection principles that regulate how authentication data will be used.
What is the way forward?
Even as the amendments have been made and the EC has launched a campaign for linkage, a writ petition has filed with the Supreme Court challenging the same. It challenges the amendments as being violative of the right to privacy. The Supreme Court has transferred the writ to the Delhi High Court.
In the meantime, it is important that the government clarifies through correction in Form 6B that the linking is not mandatory and expedites the enactment of a data protection legislation that allays concerns of unauthorised processing of personal data held by the government.
The writer is a research fellow at the Centre for Applied Law and Technology Research, Vidhi Centre for legal policy