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The proposal to link Aadhaar with voter ID is unconstitutional

Maansi Verma, Ria Singh Sawhney write: It would be detrimental to our privacy and democratic right to vote.

This week marks three years since a constitutional bench of the Supreme Court (SC), in Puttaswamy II,shrunk the Aadhaar project to contain its significant privacy risks. Justice D Y Chandrachud’s dissenting opinion was less sanguine about the possibility of containing the technological behemoth. His dissent, which found the Act and project unconstitutional, noted: “The Aadhaar project has failed to account for and remedy the flaws in its framework and design which lead to serious issues of exclusion… Constitutional guarantees cannot be subject to the vicissitudes of technology.”

The government, however, continues to violate the constitutional “red lines” drawn by the judgment. Within a year of the verdict, it amended the Aadhaar Act to permit the use of Aadhaar authentication for telecom and banking services, which the SC had categorically struck down. The government claimed that the Court’s only objection was the lack of a law — when, in fact, it held the expanded use of Aadhaar, especially by private entities, was a disproportional intrusion into the right to privacy. The 2019 amendment, which is pending challenge in the SC, permitted the government to expand the “purposes” that Aadhaar authentication can be used for. In 2020, the government notified the Aadhaar Authentication for Good Governance (Social Welfare, Innovation, Knowledge) Rules, 2020 (Good Governance Rules) to broaden the scope of Aadhaar authentication.

According to newspaper reports (IE, August 8), the law ministry has approached the UIDAI seeking Aadhaar authentication for voter verification, ostensibly under these Rules. This follows an earlier proposal by the Election Commission of India (ECI) to the law ministry, seeking permission to use Aadhaar numbers to de-duplicate the voter database, through proposed amendments to the Representation of People’s Act and the Aadhaar Act. The ECI claims that the SC permitted the voluntary use of Aadhaar for state services if there is a law authorising it, there is a clear state interest involved and if the test of proportionality is satisfied. Even if the ECI’s interpretation is accepted, its proposal is unlikely to stand up to the proportionality test.

The proportionality test, laid down in the seminal right to privacy case (Puttaswamy I), lays strict parameters for state action that infringes on the right to privacy: It must be backed by a law, and this law must be a suitable means in pursuance of a legitimate state aim. The ECI claims it needs to “purify” and de-duplicate the voter database by linking it with Aadhaar but hasn’t shown verifiable estimates of the extent of duplication in the voter ID database, nor an explanation for how Aadhaar linkage would help contain these duplicates. On the contrary, the government’s previous attempts to link voter ID and Aadhaar offer evidence of the exclusionary harms this would cause. In 2015, a SC order halted the National Election Roll Purification and Authentication Programme, which sought to link Aadhaar with voter IDs. (This order was upheld in the Court’s final judgment in Puttaswamy II.) Despite this order, the governments of Telangana and Andhra Pradesh went ahead and linked the two. The results of “purification” were disastrous. In 2018, at least 55 lakh voters found they had been arbitrarily deleted from the voter database. The likelihood of harm cannot be clearer.

A law can be considered proportional only if there are no other less restrictive and equally effective alternatives. As the world’s largest democracy, India has a process for frequent revisions of voter lists, over multiple and recurring election cycles. The ECI has not shown why these traditional verification mechanisms don’t work, or how they can be fixed through technology. The Constitutional Conduct Group, a nonpartisan group of former civil servants which has studied the issues related to verification of electoral rolls, suggests alternative measures — none of which include Aadhaar, which it outrightly rejects. The group stresses that the ECI urgently needs to focus on registering all eligible voters, especially migrants and marginalised groups. This is not going to be served by an Aadhaar-led purification process.

Finally, a law can be considered proportional only if it doesn’t have a disproportionate impact on the rights holder. The ECI doesn’t seem to have undertaken an analysis of the associated privacy harms, or the potential for exclusion through its proposal. Articles 325 and 326 of our Constitution promise universal adult suffrage. No one, who is not otherwise disqualified, can be excluded on the grounds of religion, race, caste, sex, or other protected categories. The Representation of People Act has a clear process for disqualification — those who are not citizens of India, who may be of “unsound mind”, or disqualified for election offences. Any disenfranchisement caused by the linking of Aadhaar and voter IDs would be legally impermissible, and particularly detrimental to those from marginalised communities and minority groups.

If there is one thing that we have learnt in the ensuing three years, it is that technological fixes cannot address socio-political issues, nor, as Justice Chandrachud argued, be allowed to imperil our constitutional rights. The ECI’s latest attempt to link Aadhaar with voter ID needs to be resisted as unconstitutional and unacceptably detrimental to our privacy and democratic right to vote.

This column first appeared in the print edition on October 1, 2021 under the title ‘The Aadhaar exclusion’. Verma is with Article 21 Trust and Sawhney is with Rethink Aadhaar.

Disclaimer: Sawhney appears in the challenge to the Aadhaar Amendment Act

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