This article is written by Ayushi Kumari from Gujarat National Law University. The article elucidates the repercussions of linking an Aadhar card to voter IDs of an individual and how it affects the legal rights of people.

It has been published by Rachit Garg.

Introduction

The Aadhar card, these days, seems to be one of the most important things that a person carries as his identification card, something that is used to identify the real identity of an individual. Any information related to the Aadhar card, if, goes into the wrong hands can cause a myriad of complications to that person, infringement of an individual’s Right to Privacy being one of them. While we keep this in mind, let us take a hypothetical situation wherein the Aadhar cards are linked to Voter ID cards. Certainly, a myriad of personal information will be shared with the election-related databases, something which most individuals would not consent to, if asked for personally. It will lead to increased cases of voter fraud, disenfranchisement, and of course infringement of a person’s right to privacy.

Take for instance, very recently, during the State Assembly elections in Telangana around 27 lakh voters’ names were missing from the voters’ list. This happened because the Election Commission decided to link the Aadhar to voter identity cards without any consent from the public. Moreover, when it came to removing names from electoral rolls, it didn’t fulfil any of the legal criteria. The people whose names were removed from the electoral records were not notified, and no plans were made for them to re-apply either.

History of linking the Aadhar with the Voter ID

The Election Commission had first decided to link the Aadhar (or the Unique Identification Authority of India, UIDAI) number with the Voter ID cards of the public, in 2015. This step was taken in order to bring error free and authenticated electoral rolls by removing the duplicate voters’ information. This comprehensive programme was called the National Electoral Roll Purification and Authentication Programme (NERPAP)

However, the programme was called off, or rather put for temporary suspension, when the constitutional validity of Aadhar was challenged and the Supreme Court on August 11, 2015 issued an interim ruling forbidding the use of Aadhaar for “any purpose” other than the state-facilitated distribution of food grains and cooking fuel such as kerosene and LPG. By order dated August 13, 2015, the ECI decided to halt the said process.     

Puttaswamy verdict 2018

The case involved a legal challenge against the government’s Aadhaar scheme which is basically a biometrics-based identity card that the government proposed making mandatory for access to government services and benefits. The case was brought before a three-judge Supreme Court panel on the grounds that the scheme violated the right to privacy. 

On behalf of the Union of India, the Attorney General contended that the Indian Constitution does not provide specific protections for the right to privacy. He based this on findings by an eight-judge bench in the case of M.P. Sharma v. Satish Chandra (1954) and a five-judge bench ruling in the Kharak Singh v. Uttar Pradesh (1962). The dissenting view in Kharak Singh was upheld by a subsequent eleven-judge Court, which determined that basic rights were not to be regarded as independent, unrelated rights. Later rulings by smaller Supreme Court benches that explicitly affirmed the right to privacy were based on this precedent. 

However, the Supreme Court while overruling the decisions made in MP Sharma and Kharak Singh with regard to not expressly recognising the Right to Privacy, in the present case unanimously recognized that Article 21 of the Constitution safeguarded the right to privacy as an integral aspect of the right to life and personal liberty. 

The judges’ concurring opinions, in this case, strengthened the right to privacy, recognising that it involves autonomy over personal decisions, bodily integrity, and the protection of personal information (e.g., beef consumption, reproductive rights, the privacy of health records respectively). Specific ramifications of this right were discussed in the concurring decisions.

The Bench’s finding in the concurring decisions reflects the diversity of viewpoints and numerous aspects of privacy that have been incorporated into the reasoning given in this case. While it was held in this case that the right to privacy is not absolute in nature, the Court had also provided us with an overview wherein it stated that the judicial review threshold must be employed when the government tries intruding on an individual’s privacy. 

Chandrachud’s dissent 

On behalf of Chief Justice J.S. Khehar, Justice R.K. Agarwal, Justice Chandrachud himself, and Justice S. Abdul Nazeer, Justice D.Y. Chandrachud delivered the main judgement. Justice Chandrachud while overruling the Kharak Singh judgement, stated that the Right to Life under Article 21 suffers from internal instability. Furthermore, stated that on the one hand, because of privacy reasons the regulation enabling domiciliary visits was struck down without explicitly using the phrase, but on the other hand, it recorded the absence of constitutional protection of privacy. Moreover while holding privacy as a sacrosanct natural right Justice Chnadrachud stated that privacy is a very important and inherent part of life, dignity, liberty, and freedom and thus, is inseparable from the human personality. He also stated that the notions of liberty and dignity are the source of origination of fundamental rights. 

Justice Chandrachud while overruling the ADM Jabalpur v. S.S. Shukla (1976) case stated the inalienable character of the privacy right and held the state responsible to protect the privacy rights of each individual. Furthermore, held that these rights are not subject to circumscribed limits set up by either the Constitution or the state.

Justice Chandrachud went on to say that the Aadhaar Act was unconstitutional in its entirety due to the manner in which it was passed. The Aadhaar Act is found unconstitutional for failing to meet the required standards to be certified as a Money Bill under Article 110, according to Justice Chandrachud, who used the idea of Pith and Substance and examined how a Money Bill should be passed in great detail. However, as the majority Bench in this case already upheld that the Aadhar Act has passed the constitutionality test, his rulings will have no effect.     

2019 Amendment

To replace the ordinance which was promulgated in March 2019, the Aadhaar and Other Laws (Amendment) Bill, 2019 was introduced on June 24, 2019, by the Minister of Electronics and Information Technology, Mr. Ravi Shankar Prasad, in Lok Sabha. Some of the highlights of this amendment are as follows:

  1. Offline verification of the Aadhaar number holder: Aadhar authentication provides for verification of an individual’s identity under the Aadhar Act. The amendment also allows for ‘offline verification’ of an individual’s identification without authentication, using techniques outlined by the Unique Identification Authority of India (UIDAI) in regulations.
  2. The use of Aadhaar for government assistance programmes: States will be authorised to use the unique identity number for their own welfare schemes now that the cabinet has approved the Aadhaar and Other Laws (Amendment) Act, 2019. The measure will allow states to adopt the Centre’s direct benefit transfer (DBT) scheme based on the Aadhaar number.
  3. In some instances, information must be made public: The Act initially provided that when security and confidentiality of Aadhaar related information are disclosed after the order of a district court, the restriction related to the disclosure of information will not apply. However, the Bill modifies this to allow such disclosure only in response to high court orders.
  4. Voluntary use: The Act initially allowed for the use of an individual’s Aadhaar number as proof of identification, subject to authentication. This clause is repealed in the Bill, which states that an individual may freely use his Aadhaar number to establish his identity through authentication or offline verification.
  5. Complaints:The Amendment amends the provision that only when UIDAI registers a complaint, the court can take cognizance of the offense not otherwise, to a provision that allows individuals to file complaints in certain circumstances, such as impersonation or identity exposure.

2020 rules that elaborated how Voter ID linked with Aadhar can be used

A state or a central government department can ask the Unique Identification Authority of India (UIDAI) to allow Aadhaar authentication for “use of digital platforms to ensure good governance, prevention of dissipation of social welfare benefits, and enablement of innovation and the spread of knowledge,” according to the Aadhaar Authentication for Good Governance (Social Welfare, Innovation, Knowledge) Rules, 2020. The UIDAI is in charge of enrolling people in the 12-digit unique identity number and designing policies, procedures, and systems for issuing Aadhaar numbers to them.

The government can use Aadhaar authentication to verify a person’s identity before granting them access to consumer services, subsidies, and other benefits. This can be done with a one-time pin issued to the Aadhaar number holder’s mobile number or email address, or with fingerprint or iris-based authentication. However, before collecting information about an individual’s identification, the government must obtain their agreement.

Andhra Pradesh case of data leak

The problem

A first information report (FIR) was filed against IT Grids Pvt. Ltd. for illegally storing and using the Aadhar data of people. The complaint was made by the Unique Identification Authority of India (UIDAI).

After the YSR Congress filed a complaint against the TDP’s ‘Seva Mitra’ mobile app, the company was investigated by the authorities. IT Grids is a Telugu Desam Party (TDP) affiliated company. 

Forensic investigations, following multiple raids by the Cyberabad Police on the Madhapur office of IT Grids, were carried out on the materials recovered. The Telangana State Forensic Science Laboratory (TSFSL) concluded in its initial investigation that the corporation was storing the data of 7.8 crore people from Telangana and Andhra Pradesh using Amazon Web Services’ cloud storage services. Through the company, the Telugu Desam Party allegedly exploited the Seva Mitra application for voter profiling.

The application included voter information, including images, as well as more area for TDP volunteers to collect additional field data. It also contained information about government subsidy recipients, implying (but not confirming) that personal information was obtained from official databases.

Meanwhile, the TDP maintained its position that all data were gathered legally, mostly through surveys conducted by the party officials with voters’ approval. Perhaps most importantly, the investigation conducted by the officials showed that the data stored by IT Grids were strikingly similar to those used by Aadhaar-centric databases such as the State Resident Data Hubs (SRDH) and the Central Identities Data Repository (CIDR).

No legitimate cause (duplicate IDs)

In 2010, the undivided Andhra Pradesh was one of the first States to accept the Aadhaar project, as part of the UIDAI’s early experimentation with the initiative. Not only the central identities data repository (CIDR) is the only database that contains the information regarding the project, rather the Aadhar programme itself has many databases to store the information about the programme. The UIDAI has assisted numerous states, including Andhra Pradesh, in developing State Resident Data Hubs (SRDH) over the years. 

The process included working UIDAI with state governments to gather Aadhaar enrolment data, with the possibility for states to obtain additional personal information through a system called Know Your Resident Plus (KYR Plus). Following the deduplication process, the UIDAI actively shared all Aadhaar numbers against enrolment EIDs, as well as 44 additional criteria. This was sent to states in the form of excel sheets for storage in their SRDHs in some situations.

Through the programme “Smart Pulse Survey”, the Andhra Pradesh’s government has also been aggressively gathering data from its inhabitants. The survey uses Aadhaar to create a 360-degree profile database known as “People Hub” (an SRDH), which is part of the state’s “e-Pragati” real-time governance system. 

Andhra Pradesh, in essence, keeps track of everyone’s Aadhaar data and links it to every other database for the real-time government. As part of the e-KYC of every person in the state, the geo-location of everyone in the state was also acquired. Almost every government official in the state has access to the SRDH portal. The issue is that all of this information has been made public for years, and multiple data leak complaints have been filed with both the UIDAI and the AP government.

Extent of the compromise of Right to Privacy 

To widen the scope of Aadhaar authentication, the government issued the Aadhaar Authentication for Good Governance (Social Welfare, Innovation, Knowledge) Rules, in 2020. Under these rules, the law ministry has approached the UIDAI to request Aadhaar authentication for voter verification. The Election Commission of India (ECI) has previously approached the law ministry, requesting authorization to use Aadhaar numbers to de-duplicate the voter database through suggested revisions to the Representation of People’s Act and the Aadhaar Act. According to the ECI, the Supreme Court allowed the voluntary use of Aadhaar for state services if there is a legislation authorising it, a clear state interest is implicated, and the proportionality test as set out in the Puttaswamy judgement is met. Even if the ECI’s view is accepted, the proposal will most likely fail to pass the proportionality test.

Moreover, attempts by the government to integrate voter ID and Aadhaar demonstrate the exclusionary consequences. The National Election Roll Purification and Authentication Programme, which attempted to link Aadhaar with voter IDs, was blocked by a Supreme Court ruling in 2015. Despite the order, the Telangana and Andhra Pradesh Governments went ahead and linked the two States which produced disastrous results.

Only if there are no other less restrictive and equally effective alternatives can a law be called proportional. India, as the world’s largest democracy, has a system in place for revising voter lists on a regular basis, throughout numerous election cycles. The ECI hasn’t explained why traditional verification procedures don’t work or how to address them with technology. The Constitutional Conduct Group, a nonpartisan group of retired civil employees who have examined issues linked to electoral roll verification, emphasises that the ECI must focus on registering all eligible voters, particularly migrants and marginalised groups, as soon as possible.

Finally, a law may only be regarded as proportional if it has no disproportionate effect on the rights of the holder. The ECI does not appear to have considered the attendant privacy risks or the possibility of exclusion as a result of its proposal. Our Indian Constitution, in Articles 325 and 326 provide universal adult suffrage. No one can be barred on the basis of religion, race, caste, sex, or other protected categories if they are otherwise qualified. The Representation of People Act establishes a clear method for disqualification of non-Indian nationals, individuals who are of “unsound mind,” and those who have been disqualified for electoral offences. Therefore, any disenfranchisement resulting from the connection of Aadhaar and voter IDs is illegal, because it disproportionately affects people from marginalised communities and minority groups and affects their legal right of privacy by misusing the personal data given in the Aadhar as details.

Moreover, integrating these two databases would be a violation of the right to privacy and open the door to abuse. The concern here is that such a plan will infringe on our constitutional and fundamental right to privacy, as well as the vote’s secret. India currently lacks a data protection law, and the existing personal data protection bill allows the government to make extensive exceptions. Any attempt to link Aadhaar to voter IDs would result in demographic data associated with Aadhaar being linked to the voter database. This opens the door to identity-based disenfranchisement, increased monitoring, targeted advertising, and economic exploitation of personal information.

Conclusion

Since its adoption in 2010, Aadhaar has played a pivotal role in providing every Indian resident with a unique identification number that can be used to access government services. It has progressed from being optional to being necessary information for direct cash transfers over time. To combat tax evasion and monitor tax filings, the government has made it essential to link Aadhaar with a Permanent Account Number (PAN).

Moreover, a year ago, the government enabled voluntary linkage of the 12-digit identity number to register bank accounts or obtain a mobile connection as part of knowing your customer requirements. The government also stated that no service will be refused to anyone who does not have or provide an Aadhaar card for authentication. As discussed, the Supreme Court declared in 2017 (in Puttaswamy judgement) that Aadhaar could only be used for direct benefit transfers for social schemes, and that private enterprises could not utilise the unique identifying number for customer identity verification.

Twenty-three organisations and almost 500 important individuals have criticised the attempt to link Aadhaar to voter ID, calling it an “ill-thought, irrational, and unneeded step” that threatens India’s electoral democratic process. The signatories of this proposal, considering the repercussions it will bring, have asked the Election Commission to abandon the “dangerous” proposal, claiming that rather than cleaning up voter rolls as the EC claims, the move will result in mass disenfranchisement and increased voter fraud. 

References


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