Policy Analysis

Election Laws (Amendment) Bill- 2021: A Critical Analysis

Author: NIHAL KUMAR, 2nd Year (LL.B.), Parul University, Vadodara

The Election Laws (Amendment) Bill, 2021 was introduced in the Lok Sabha on December 20, 2021. It was passed in the Rajya Sabha on Tuesday, 21 December, a day after the contentious bill was passed in the Lok Sabha amid clamorous protests by the Opposition MPs.

The bill, which seeks to amend the Representation of the People Act, provides for the linking of voter IDs with Aadhaar on a voluntary basis, “for the purposes of authentication of entries in the electoral roll.”

Purpose: Following the turmoil after the Bill was passed in Lok Sabha, the Centre clarified on December 21 that the Bill seeks to link electoral rolls with the Aadhaar ecosystem to weed out duplication of voters and weed out fake votes. Through the proposed law, the names of electors that appear in more than one electoral roll or more than once in the same electoral roll can be removed. Once the Aadhaar is linked, the electoral roll data system will get a notification when the person is trying to apply for another ID. Terming the Bill “very good”, Law Minister Kiren Rijiju said the legislation will help end fake and bogus voting in the country and make the electoral process credible. 

Key points

(1) Aadhaar authentication:

  • The Bill seeks to empower electoral officers to seek Aadhaar number of people, who want to register as voters, for establishing their identity.
  • It also seeks to allow the electoral registration officers to ask for Aadhaar numbers from persons already included in the electoral roll for the purposes of authentication of entries in the electoral roll.
  • This would also aim to identify the registration of the name of the same person in the electoral roll of more than one constituency or more than once in the same constituency.

(2) Aadhaar linking with Voter ID:

  • Linking Aadhaar with voter ID will be voluntary.
  • The amendment makes it clear that no application shall be denied and no entries in the electoral roll shall be deleted for the inability to produce an Aadhaar number.
  • Such people will be allowed to furnish other documents as may be prescribed.

(3) Amendments to the RP Act for new voter registration:

  • Section 23 of the RP Act, 1950 will be amended to allow the linking of electoral roll data with the Aadhaar ecosystem to curb the menace of multiple enrolments.
  • Amendment to section 14 of the RP Act, 1950 will allow having four qualifying dates for eligible people to register as voters, instead of one that is January 1 at present.
  • As of now, people who turn 18 on or before January 1 can register as voters but those turning 18 after January 1 wait for the whole year to get registered.
  • The Bill proposes to make the 1st day of January, 1st day of April, 1st day of July, and 1st day of October the qualifying dates.

(4) Imbibing gender neutrality:

  • An amendment to section 20 of the RP Act, 1950 and section 60 of the RP Act, 1951 seeks to make the elections gender-neutral for service voters.
  • The amendment will also replace the word ‘wife’ with ‘spouse’ to make the statutes gender-neutral.

Positive Impacts

The government said the Bill incorporates various electoral reforms that have been discussed for a long time.

The government said linking Aadhaar with electoral rolls will solve the problem of multiple enrolments of the same person at 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 and facilitate elector registration in the location at which they are ‘ordinarily resident’.

A Parliamentary Standing Committee report on demands of grants of the Law Ministry had said: The Committee has been advocating linkage of unique Aadhaar ID Card numbers with voter I-card which would streamline alterations in EPIC during change of ordinary residence by the electors.

The incidence of multiple entries could also be eliminated which is required in participative democracy.

In Parliament, Law Minister said linking Aadhaar with the voter ID card “is voluntary. It is not compulsory or mandatory”.

Negative Impacts

Exclusion errors – Possible disenfranchisement of legitimate voters unwilling or unable to submit Aadhaar details, leading to violation of universal suffrage under Article 326 – as was witnessed in Andhra and Telangana.

Inclusion errors – Aadhaar cannot differentiate between citizen & Noncitizen: In fact, the Aadhaar database may be irrelevant to verifying voter identity because it is an identifier of residents and not citizens.

Possible violation of privacy, and the possibility that demographic details may be misused for profiling of voters. In absence of data protection law, such integration can undermine the integrity of the electoral roll.

Lack of public discussion: It is not clear if the specifics of the Bill had been discussed widely and public opinion sought.

Other ways to identify bogus voters: by other identification processes such as cross-matching the National electoral roll data held by the election commission of India.

Scope of fraud within Aadhaar: there have been complaints of wrongful enrolment that have come up even against the unique identity number allotted to more than 90% of the population.

Misuse of demographic information by the government for targeted advertising or possible deletion from electoral rolls.

May not pass the constitutional test of proportionality– A law can be considered proportional only if there are no other less restrictive and equally effective alternatives or it does not have a disproportionate impact on the rights holder.

Other Concerns

The Opposition claimed Aadhaar linkage will enable non-citizens to vote.

Member of Parliament Shashi Tharoor said in Lok Sabha, “If you are in a position asking for Aadhaar for voters, all you are getting is a document that reflects residence, not citizenship. You’re potentially giving the vote to non-citizens.”

Others said, “This has also been mentioned in the House, that Nepalis and Bangladeshis will not be allowed to vote and this will ensure that doesn’t happen.

Now here there is a conceptual confusion. Aadhaar is not proof of citizenship and it is said so very clearly in the Aadhaar Act.

We know that voting can only be done by citizens. Experts are unable to understand how this will prevent non-citizens from voting because non-citizens can have an Aadhar card. The goal of preventing non-citizens from voting will not be solved with Aadhaar.

Another concern, raised by the CPI(M), is the view that the Bill could violate the secrecy of the vote undermining the principle of secret ballots and the fundamental right to privacy of the voter.

Way Forward

Linking of Aadhaar must also pass the test of the right to privacy under Article 21 of the Indian Constitution.

Each is a valid concern that ought to be considered by a parliamentary committee.

An unwillingness to allow meaningful debate and invite wider consultation can undo even the progressive aspects of problematic legislation.

Conclusion

While the government’s goal of digitizing electoral rolls sounds laudable in principle, it should first address how the rights of the people would be protected and how it would control the Aadhaar database’s potential for fraud. Critics argued that if the Government really has no ulterior motive in the form of triggering mass deletions from the electoral rolls, it must invite public opinion and allow deeper parliamentary scrutiny before implementing the new provisions that now have the approval of both Houses of Parliament.

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