The concerns around Aadhaar-Voter ID linkage

Context:

• 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.

Need for Aadhar- Voter ID Linkage:

• 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.

Aadhaar is a unique 12-digit identification number issued to the citizens of the country by the Government of India as identification proof. Unique Identification Authority of India (UIDAI) is the issuing and managing bogy for Aadhaar cards in the country.Aadhar is a proof of residence, not proof of citizenship.

The Indian Voter ID Card is an identity document issued by the Election Commission of India to adult domiciles of India who have reached the age of 18, which primarily serves as an identity proof for Indian citizens while casting their ballot in the country’s municipal, state, and national elections.

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. It 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.

Issues with the mandatory linking of Aadhaar to the Voter ID:

• 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.

Puttaswamy case/ Aadhar verdict:

• Supreme Court (SC) in this case held that Indians have a constitutionally protected fundamental right to privacy that is an intrinsic part of life and liberty under Article 21.
• This right may be restricted by state action only if that action passes each of the three tests:

1. First, such state action must have a legislative mandate;
2. Second, it must be pursuing a legitimate state purpose; and
3. Third, it must be proportionate i.e., such state action — both in its nature and extent, must be necessary in a democratic society and the action ought to be the least intrusive of the available alternatives to accomplish the ends.

• In short, this is a triple test of legality, legitimacy (of purpose) and proportionality, failing which any executive or legislative action curbing individuals’ right to privacy is liable to be struck down by the judiciary.
• 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.

The operational difficulties in Aadhar- Voter ID linking:

1. Aadhar only a proof of residence:

• 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.

2. Error rate in Aadhar

• The estimate of error rates in biometric based authentication differ widely. As per the Unique Identification Authority of India (UIDAI) 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.

3. Right to privacy and mass surveillance by State:

• 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.

4. Lack of a data protection law:

• India does not have a law to protect personal data of users as the Personal Data Protection Bill, 2019 was withdrawn recently. Even though government and its agencies (UIDAI) are unlike private data companies like Facebook or google, yet there needs to be a data protection architecture to protect the personal data of citizens.

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.

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 Revisiting the S. Subramaniam Balaji vs Tamil Nadu judgment

Context:

The Prime Minister’s recent comment on “freebies” handed out by governments has reignited the debate on the economic rationale for granting subsidies.

About freebies:

• Freebies here refers to electoral promises by political parties and politicians for certain goods and services to be provided to the public for free or at heavily subsidised cost out of taxpayers’ money.
• Political parties promise to offer free electricity/water supply, monthly allowance to unemployed, daily wage workers, and women as well as gadgets like laptops, smartphones etc in order to secure the vote of the people.

Arguments against freebies:

• Freebies are a burden on taxpayers’ money and divert national resources from productive to unproductive areas.
• Freebies undercut the basic framework of macroeconomic stability.
• The politics of freebies distort expenditure priorities. For instance, Rajasthan’s decision to revert to the old pension scheme for civil servants will benefit only 6% of the population, from 56% of the state’s revenues.
• The issue of intergenerational equity leads to greater social inequalities because of expenditure priorities being distorted away from growth-enhancing items.
• Provision of free power, water, etc. distracts outlays from environmental and sustainable growth, renewable energy and more efficient public transport systems.
• Freebies lower the quality and competitiveness of the manufacturing sector by detracting from efficient and competitive infrastructure.

Arguments for freebies:

• Constitutional provision- As per Article 282, the Union or a State may make any grants for any public purpose.
• Due to pending on health and nutrition, freebies can build a healthier and a stronger workforce, which is a necessary part of any growth strategy. For example, the MGNREGA type of spending and subsidy in the form of food ration schemes.
• Increased productivity and capacity building- Subsidies going into education, such as for laptops have now become necessities for increasing productivity, knowledge and skills.
• Some expenditure outlays do have overall benefits such as the Public Distribution System, employment guarantee schemes, support for education and enhanced outlays for health, particularly during the pandemic.
• For states that have a comparatively lower level of development with a larger share of the population suffering from poverty, such kinds of freebies become need/demand-based and it becomes essential to offer the people such subsidies for their own upliftment.
• Share of India’s investment in agriculture sector was 10%. In recent years, it has almost halved. As the crisis in agriculture has deepened as a result of this chronic underinvestment, subsidies have been the palliatives extended by the Government for farmers to merely protect their livelihoods. These agricultural subsidies should not be seen as “freebies”.
• Impact of COVID-19: it has increased levels of poverty and unemployment in India. Freebies are necessary for many of such people to survive the impacts of the pandemic.

The freebies litigation and the Balaji Case:

• Recently Supreme Court (SC) referred to a three-judge Bench a series of petitions seeking a judicial direction that political parties who make “wild” promises of largesse should also reveal in their poll manifestos where they will get the money to pay for them. The reference is a shift from the court’s own stand in the S. Subramaniam Balaji vs Tamil Nadu judgment of 2013.
• In the Balaji case judgment, a Division Bench of the Supreme Court had held that making promises in election manifestos do not amount to a ‘corrupt practice’ under Section 123 of the Representation of People Act (RP).

Corrupt practices under RPA:

Some major grounds are

• Bribery: Any gift/offer/promise or gratification to any person as a motive or reward.
• Undue Influence: Any direct or indirect interference/attempt to interfere on the part of the candidate with the free exercise of any electoral right.
• The publication by a candidate any statement of fact which is false in relation to the personal character/conduct of any candidate
• The hiring or procuring of any vehicle by a candidate of any elector to or from any polling station.
• Promoting Enmity
• Any person who promotes or attempts to promote on grounds of religion, race, caste, community or language, feelings of enmity or hatred between different classes of citizens of India can be punished with imprisonment for a term which may extend to 3 years.
• Prohibition of public meetings during a period of 48 hours ending with the hour fixed for the conclusion of the poll.
   

Thus, ‘bribery’ to voters can become a ‘corrupt practice’ under the electoral law and lead to disqualification of the candidate from election.

SC is now worried that freebies promised by political parties to win elections could bleed the public exchequer dry. The Court said that parties who form the government riding the wave created by their pre-poll promises of “free gifts” are bleeding the State finances dry by actually trying to fulfil their outlandish promises using public money.

The Supreme Court has therefore decided to revisit the Balaji verdict.

S. Subramaniam Balaji vs Tamil Nadu judgment of 2013:

• During the 2006 Tamil Nadu (TN) Assembly elections, AIADMK promised grinders, mixies, electric fans, laptop computers, four gram gold thalis, a cheque of ₹50,000 for women’s marriage, green houses, 20 kg of rice to ration card holders (even to those above the poverty line) and free cattle and sheep.
• Mr. Balaji challenged the schemes introduced by the parties in the Madras High Court. He said the expenditure to be incurred by the State from the exchequer was “unauthorised, impermissible and ultra vires the constitutional mandates”. He said the State cannot act in furtherance of “eccentric principles of socialistic philanthropy”.
• He argued that the promises of free distribution of non-essential commodities in an election manifesto amounts to electoral bribe under Section 123 of the RP Act.
• The Comptroller and Auditor General (CAG) of India has a duty to examine expenditures even before they are deployed. Money can be taken out of the Consolidated Fund of the State only for “public purposes”. The distribution of goods to certain sections of people was violative of Article 14 of the Constitution.
• In response, the State of Tamil Nadu countered that promises of political parties do not constitute corrupt practice. Political parties are not the State and ‘freebies’ is a nebulous term which has no legal status.
• The promises implemented by the party after forming the government is an obligation under the Directives Principles of State Policy. The State is only doing its duty to promote the welfare of its people.
• The promises are implemented by framing various schemes/guidelines/eligibility criteria etc. as well as with the approval of the legislature. Thus, it cannot be construed as a waste of public money or be prohibited by any statute or scheme.
• The court’s judgment held that promises by a political party cannot constitute a ‘corrupt practice’ on its part. It would be “misleading” to construe that all promises in the election manifesto would amount to corrupt practice.
• The manifesto of a political party is a statement of its policy. The question of implementing the manifesto arises only if the political party forms a government. It is the promise of a future government and not of an individual candidate.
• However, the court agreed that freebies create an “uneven playing field”. It had asked the Election Commission of India to consult political parties and issue guidelines on the election manifesto and make it a part of the Model Code of Conduct.
• In its order, the court foresees that “freebies may create a situation wherein the State government cannot provide basic amenities due to lack of funds and the State is pushed towards imminent bankruptcy”. Now SC is exploring whether judicial parameters can be set on a purely political act of promising freebies.

Way forward:

1. Differentiation–

• We need to distinguish between the concept of merit goods and public goods.The strengthening of the public distribution system, employment guarantee schemes, support to education and enhanced outlays for health are considered to be desirable expenditures.
• The subsidies in basic necessities such as giving free education to younger children and offering free meals at schools are rather positive approaches.

2. Sustainability–

Cheap freebies come at a cost to the economy as its cost is ultimately borne not by the parties but the taxpayers once that party comes into power and starts implementing its poll promises. So any electoral promise must be sustainable, ie, should be practically implementable without ‘breaking the bank’.

3. Revising the Seventh Schedule-

Most of the centrally sponsored schemes are subjects which are classic subjects in the domain of the states, such as employment, food, education.

4. Development

• Only development of people will obviate the need for freebies.
• If the political parties go for effective economic policies where the welfare schemes have good reach to the targeted population, then infrastructure and development will take care of itself and the people will not require such kinds of freebies.

Conclusion:

• It is always better to provide useful skills to the people than to give them freebies.
• Political parties should come together and agree to a Model Code of Conduct by ECI that prevents promise of freebies.