The Supreme Court on Monday (October 31) issued notice to the Centre on a plea challenging the power of the Election Commission (EC) to link the Aadhaar database with voter ID cards.
A division bench of Justices SK Kaul and Abhay S Oka was hearing the petition filed by Major General (retired) SG Vombatkere that challenges the constitutional powers of the Election Laws (Amendment) Act, 2021, amended Section 23 and Section 28 of the Representation of People’s Act, 1950, the Registration of Electors (Amendment) Rules, 2022 and two notifications regarding Aadhaar-Voter Card linkage, Livelaw reported.
“Your argument seems to be that one lacking Aadhaar, voting should not be denied or even on having it, shouldn’t be compulsory,” Justice Kaul said to the petitioner.
What was the petition challenging?
In December 2021, the Central government passed The Election Laws (Amendment) Bill, 2021, which amended the Representation of the People Act, 1950 and the Representation Act, 1951 to implement certain electoral reforms.
Section 23(4), which was added to the Representation of the People Act, 1950, stated that an electoral registration officer may require a person to furnish their Aadhaar number for the purposes of “establishing the identity of a person” or for the “authentication of entries in electoral roll and to identify registration of name of the same person in the electoral roll of more than one constituency or more than once in the same constituency.”
The updated Act also stated that no individual will be denied inclusion in the electoral roll, nor have their names deleted from the roll if they are unable to furnish their Aadhaar number due to “sufficient cause as may be prescribed”. Such individuals may be allowed to provide alternative documents prescribed by the government.
The law was strongly opposed by opposition parties, and Law Minister Kiren Rijiju had earlier said that linking Aadhaar with the voter ID card “is voluntary. It is not compulsory or mandatory”.
What was the petitioner’s argument?
Senior Advocate Shyam Divan, who was appearing for the petitioner, argued that the right to vote is one of the “most sacred rights” and cannot be denied if a person lacks an Aadhaar card. While the law allows people to furnish alternative documents on the basis of “sufficient cause,” the petitioner pointed to Form 6B which was added when the government notified changes to the Registration of Electors Rules 1960, in June 2022.
Divan argued that according to Form 6 and Form 6B, the option of showing another identity proof is only available to the voter if they don’t have an Aadhaar number. “An option of being unwilling to furnish an Aadhar number if alternatives are available is not permitted,” the court order further stated of the argument.
Drawing attention to the judgement in Justice K. S Puttaswamy v Union of India & Ors, which dealt with the validity of the Aadhar card, the counsel for the petitioner argued that the Aadhar card can only be made mandatory if some benefit of subsidy is sought and not if there is an intrinsic right, such as the right to vote.
The petition argued that the linkage poses a major threat to the independence of the Election Commission (EC) as the preparation of the electoral rolls is made dependent on the processes of Aadhaar, a process it has no control over. It also stated that the linkage would have a detrimental impact on people’s ability to exercise their right to vote, and could compromise the secrecy of the votes, Livelaw reported.
Why does the government want to link electoral rolls to Aadhaar?
The government claims the linkage will solve the problem of multiple enrollments of the same person at different places. Once the 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 and facilitate elector registration in the location at which they are ‘ordinarily resident’, a government official had said earlier.
A Parliamentary Standing Committee report on the demands of grants of the Law Ministry, presented in Rajya Sabha on March 6 2021, had said: “The Committee has been advocating linkage of unique Aadhaar ID Card number with voter I-card which would streamline alterations in EPIC [Electronic Photo Identity Card] during change of ordinary residence by the electors. The incidence of multiple entry could also be eliminated which is required in participative democracy…”
On August 1 of this year, the EC launched a drive to link voter identity cards with their Aadhaar details. The EC reiterated that the aim of the exercise was to establish the identity of electors and authenticate entries in the electoral roll, and identify if the same person is registered in more than one constituency or more than once in the same constituency.
Why has the idea been opposed by some?
Opposition parties have criticised the Election Laws (Amendment) Act, 2021, which enables the linking of electoral roll data with the Aadhaar ecosystem. Manish Tewari of the Congress had earlier said: “The linking of voter IDs and Aadhaar violates the fundamental right to privacy as defined by the Supreme Court in the judgement.”
All India Majlis-e-Ittehadul Muslimeen MP Asaduddin Owaisi, who had opposed the bill before it was passed, said that the government would be able to use voter identity details for “disenfranchising some people and profile the citizens”. “This Bill is outside the legislative competence of this House… The linking of voter ID with Aadhaar violates the fundamental right to privacy defined in Puttaswamy (case),” Owaisi had said earlier.
The CPI(M) had previously said in a statement that the linkage would violate the secrecy of the vote and undermine the fundamental right to privacy of the voter.
Arghya Sengupta, founder and research director at Vidhi Centre for Legal Policy, had raised concerns before the Bill was passed last year and told The Indian Express: “The first justification provided is that bogus voting where one person is voting more than once is taking place…If you’re saying you have to provide it along with your voter ID whenever you go to vote… this will only work if providing Aadhaar is mandatory. However, this section in the law is a bit complicated because it does seem voluntary but the reasons on the basis of which I can choose not to link my Aadhaar will be prescribed by the government for ‘sufficient cause’. Now what that sufficient cause could be is not mentioned in the Bill?… This should be made clear.”
The petition argued that the linkage poses a major threat to the independence of the Election Commission as the preparation of the electoral rolls is made dependent on the processes of Aadhaar that it has no control over. (Representational) 
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