The Election Laws (Amendment) Act, 2021

WHY IN NEWS?

• Parliament has passed the Election Laws (Amendment) Bill, 2021.
• The Bill amends the Representation of the People Act, 1950 and the Representation of the People Act, 1951 to implement certain electoral reforms.

SALIENT PROVISIONS OF THE ACT

• Linking electoral roll data with Aadhaar:
  • The Bill provides for amendment of section 23 of the Representation of People’s Act, 1950, enabling the linking of electoral roll data with the Aadhaar ecosystem.
• Qualifying date for enrolment in electoral roll:
  • Under the 1950 Act, the qualifying date for enrolment in the electoral roll is January 1 of the year in which such roll is being prepared or revised.
  • This implies that a person who turns 18 (i.e., eligible to vote) after January 1 can enrol in the electoral roll only when the roll is prepared/ revised the next year.
  • The Bill amends this to provide four qualifying dates in a calendar year, which will be January 1, April 1, July 1, and October 1.
• Gender-neutral provisions:
  • The Act aims to bring Gender Neutrality with the amendment to Section 20 of the RP Act, 1950 and Section 60 of the RP Act, 1951.
  • This change will allow the elections to become gender neutral for service voters. Service voters are those serving in the armed forces, armed police forces of a state serving outside it and government employees posted outside India.
  • The amendment will replace the word “wife” with the word “spouse” making the statutes “gender neutral.”

NEED FOR LINKING ELECTORAL ROLL DATA WITH AADHAAR

• To clean up electoral roll:
  • The amendment aims to curb the menace of multiple enrolment of the same person in different places.
  • Once Aadhaar linkage is achieved, the electoral roll data system will instantly alert the existence of previous registration(s) whenever a person applies for new registration >> This will help in cleaning the electoral roll to a great extent.
• Improved accessibility to voting:
  • India lags in voter participation compared to other large democracies, a major reason being the staggering numbers of migrant workers – 30 crores.
  • There have been calls to allow migrant workers to be given the right to vote regardless of their location.
  • Linking the two databases will allow the ECI to track migrant workers and improve election participation.
• Stop bogus voting and fraudulent votes.
  • This move is also expected to prevent voter fraud since Aadhaar information is authenticated using biometrics, which cannot be replicated, and in turn, the duplication of voter ID cards is prevented.

CONCERNS

• Voter pro?ling:
  • An Aadhaar - voter ID linkage will help political parties create voter pro?les and in?uence the voting process.
  • In the absence of a Personal Data Protection Law, linking can result in abuse and undermine the integrity of the voter roll.
  • The use of demographic information, such as a caste certificate or driving license, when used to obtain an Aadhaar card could be harnessed by the EPIC database.
  • This information could be used for targeted political advertising and, possibly, disenfranchisement.
  • Examples:
    • In 2019, the Cambridge Analytica scandal in United States Presidential election demonstrated the disastrous impact that deep and invasive voter profiling had on individuals and on democracies.
    • In 2021, the Madras High Court asked the ECI to look into allegations against the BJP illegally using Aadhaar data of voters in Puducherry for making political gains in the 2021 assembly election.
• Can cause mass disenfranchisement:
  • Previous attempts to use Aadhaar to “clean up” databases of other government registries, like MGNREGS and PDS >> have resulted in mass disentitlement
  • For example: 90 per cent of ration cards cancelled as “bogus” in Jharkhand during Aadhaar linking between 2016 and 2018 were real.
• Selective removal of people from electoral rolls
  • In places where it was used — done by the mashing of Electors Photo Identity Card (EPIC) data with surveillance databases, it facilitated a selective removal of voters from the lists
  • For example: In the 2018 Telangana Assembly elections for instance, the consequence of such a measure led to the deletion of an estimated two million voters
• Flaws within the Aadhaar system
  • Aadhaar is not proof of citizenship
    • Hence Aadhaar is not proof of the right to vote.
    • Under the Representation of Peoples’ Act, only citizens who are residents of India have the right to vote.
    • Opposition alleges that linking Aadhaar with voters ID will enable non-citizens to vote.
  • Duplication in Aadhaar
    • Aadhaar itself has several fake and duplicate names, which has been widely documented.
    • RTI replies have revealed that 80 million fake or fraudulent Aadhaar numbers were detected in 2014-15
    • The linking of Aadhaar with voter ID will create complexities in the voter databases that will be hard to ?x.
    • This process will introduce errors in electoral rolls and vastly impact India’s electoral democracy.
  • Authentication failure:
    • In 2018 >> CEO of UIDAI admitted that authentication failure for government services was as high as 12% - which translates into millions of affected persons.
    • Due to absence of adequate infrastructure and lack of grievance redressal mechanisms in UIDAI’s implementation >> biometric authentication for voting is very risky.
  • Widespread data quality issues in the Aadhaar database
    • Inadequate enrolment practices and lack of effective correction mechanisms in Aadhaar >> this would diminish the sanctity of records in the voter ID database.
    • Self-reported errors in Aadhaar data were one-and-a-half times higher than errors in the electoral database.
  • Concern of Aadhaar leak:
    • The other concern is that there is a documented case that Aadhaar data was being leaked.
    • It could lay the foundation of targeted political propaganda which is against the model code of conduct as well.
    • In 2019, UIDAI complained to police about IT Grids (India) Private Limited, accusing it of illegally procuring details of 7 crore Aadhaar holders in Andhra Pradesh and Telangana, and storing these in its databases.
    • Concerns were also raised on account of the alleged security vulnerabilities of UIDAI servers.
• Scope for fraud increases when these databases are interlinked
  • In 2020, UIDAI reported that it had cancelled 40,000 fake Aadhaar cards, the first time it admitted to fraud in its systems.
  • Two specific concerns emerge for EPIC-Aadhaar integration:
    • (a) One, the authenticity of Aadhaar will determine the authenticity of the voter rolls and this could lead to fraudulent identities being legitimised. We saw this in the case of PAN-Aadhaar linkage where concerns of legitimising benami financial transactions were raised after UIDAI had accepted the scope of fraud in Aadhaar.
    • (b)Two, UIDAI, in multiple court cases, has admitted that it has no information about the enrolment operator, agency, or even their location while enrolling someone in Aadhaar. Redressing issues of dubious enrolment practices thus become difficult. In the case of EPIC integration, oversight mechanisms and other checks and balances to ensure the integrity of individual data is unclear. Given the reported scope for fraud with Aadhaar, this process could undermine the sanctity of the voter roll.
• Attack on the right to privacy:
  • India currently has no data protection law.
  • Linking Aadhaar to the voter IDs would bring the demographic information into the voter database.
  • This creates the possibilities of increased surveillance, disenfranchisement based on identity and targeted advertisements and commercial exploitation of sensitive private data.
• Wider discretion to executive:
  • The reasons on the basis of which a person can choose not to link Aadhaar card with voters ID will be prescribed by the government for ‘sufficient cause’.
  • The term ‘sufficient cause’ is not mentioned in the Act
• Violate secret ballot system:
  • The Act could violate secrecy of the vote undermining the principle of secret ballots.

JUSTIFICATION:

• Legitimate state interest:
  • ECI had argued that this linkage would fulfil “legitimate state interest”, laid down as one of the criteria by the SC in K.S. Puttaswamy case while judging the permissible limit for invasion of privacy.
• Voluntary in nature:
  • The government states that the proposed linkage between the Aadhaar and election database is purely voluntary.
  • Persons will not be denied inclusion in the electoral roll or have their names deleted from the roll, if they are unable to furnish Aadhaar number due to sufficient cause as prescribed.
  • Such persons may be permitted to furnish alternate documents prescribed by the central government.
• Supported by Parliamentary Standing Committee:
  • 105th report of the Department-Related Parliamentary Standing Committee on Personal, Public Grievances and Law and Justice, which expressed the view that linking Aadhaar with electoral rolls will purify electoral rolls and will consequently reduce electoral malpractices.
• Linking of Aadhaar and voters ID may not lead to voter profiling:
  • Verification of a person’s identity is separate from the capturing of the identity which is already happening in booths when a person goes to vote.

CASE STUDY

• Single form of identification actually disenfranchises citizens:
  • A study of voter ID requirements in Latin America revealed that countries with a single form of ID were likely to have fewer citizens participating in the electoral process since they were unable to prove their identity.

PRACTICE QUESTION:

Q. Do you think that integration of Aadhaar with electoral roll improves voter participation? Analysis the issues associated with such integration.