The right to privacy has been guaranteed to us as a fundamental right but there have been various issues in the present times which make us rethink the very validity of right. The privacy concerns of individuals and the right to surveillance by the government have to be balanced very crucially. However, the threat from the infamous Pegasus spyware, the privacy concerns over the use of social media, the idea of the metaverse, etc. have made us face this question- how effective is the right to privacy in our country?
Similar questions are also raised by the latest Election Laws (Amendment) Bill which allows Aadhaar to be linked with voter IDs. This move has been backlashed not only by the opposition but also by various social and legal groups.
The right to privacy has been regarded as a fundamental right under the right to life as guaranteed by article 21 of the Indian Constitution. Ever since this decision was passed in 2017 in the Aadhaar case, privacy has been more of consciousness among people than ever. Certain recent developments in the country have the citizens more aware and concerned regarding their privacy and safety in this digital era. The recent fear of the infamous Pegasus software, the threat of data leak through the Arogya Setu app, or the very validity of the Aadhar card- nothing has escaped from the loop of questions of privacy concerns. The present article discusses the latest Election amendment laws which allow Aadhar to be linked with voter ID cards. The move has raised many questions all over; the primary reason for the same being the very validity of the Aadhar card.
RIGHT TO PRIVACY AND THE ‘AADHAAR CASE’:
Privacy has been the key element ever since the inception of the debate over Aadhaar. Various groups of individuals understand privacy in different, equally legitimate ways. However, persons who participate in the conversations are not necessarily aware of the disparities in views. A more in-depth examination of the various facets of privacy is required for a productive discussion on the subject. In Justice KS Puttaswamy v. Union of India judgment, the Supreme court upheld the validity of the Aadhar Act however, a number of statutes, circulars, and orders requiring the mandatory linkage of Aadhaar for obtaining relevant services were ruled out by the Supreme Court. The Supreme Court ruled that the right to privacy cannot be violated without the passage of legislation that is just, fair, and equitable. This necessitated the creation of a law that serves a valid state goal and is commensurate to the goal pursued. The four factors as laid down under the judgment for the proportionality test are the legitimate goal, necessity, balance, and rationality. The Supreme Court knocked down or rewrote parts of the Aadhaar Act that failed to meet the aforementioned proportionality criteria. It is pertinent to note here that the most important provision read down by the Apex court was Section 57 of the Aadhaar Act. This clause allows the government institutions, corporations, and people to use the Aadhaar number to verify an individual’s identification for any lawful or contractual reason.
This aspect of the judgment brings the recent election laws allowing Aadhar to be linked with voter IDs more and more within the circle of doubts and questions. the said judgment had restricted the scope of use of Aadhaar and thus this step is considered to be an ill-thought, miscalculated and unnecessary one. There have been dozens of people from various social groups and legal fraternities who have called this move a direct attack on the fundamental right to freedom. The problems with Aadhar and Voter ID linkage are discussed further.
ELECTION LAWS AMENDMENT BILL, 2021: A NEW ADDITION TOWARDS ENCROACHING THE INDIVIDUAL’S PRIVACY:
Election Laws Amendment Bill, 2021 after getting the assent from both the houses, has amended the Representation of People’s Act, 1950 which now asks to link Aadhaar to Elector’s Photo Identity Card (EPIC) which has garnered criticisms from all spheres of society be it opposition, civil societies, human rights groups, and NGOs. The Election Commission has claimed that this will clean up voter rolls, and the linkage will be voluntary, but this much assurance is not enough to avoid the existing danger of mass disenfranchisement and large-scale voter fraud. It is assumed that this will hinder the citizen’s right to privacy by providing the accessibility of voter profiling through the linkage of data sets that Aadhaar provides. This is considered improper because when the government came up with the bill the Parliamentary Standing Committee on Law and Justice was still studying and did not prepare the report. The current government has a dismal record on sending bills to the Standing Committees for study, and the attempt to bring the bill on the subject that was under the consideration reflects the little regard that Government possesses for parliamentary conventions and proposals which must be resisted. In the following points the possible harms are stated:
Attack on Right to Privacy: The current Data Protection Legislation that has been rolled out by the government, has chalked out the exemptions for Government from the purview of the same. It now enables to misuse of the critical information that it gets from Aadhaar-Voter ID linkage. Such a linkage can give the demographic information which has been linked to Aadhaar, which further gets linked to the voter database to the government. The Cambridge Analytica Scandal has revealed how invasive voter-profiling had on individuals, and democracies and any such law enables the ruling government to target groups, disenfranchise them based on the data they get hold of.
Fears of mass disenfranchisement: Mass disenfranchisement is the most likely result of this decision as the same has been witnessed in the past. It occurred in the year 2018 when the chief electoral officer of Telangana and Andhra Pradesh linked Voter Identity Cards with Aadhaar data. As a result, around 55 lakh voters had been arbitrarily disenfranchised from the electoral rolls. The government took back the decision. Additionally, it is pertinent to mention that when the Aadhaar judgment was challenged in the Supreme Court, it passed an interim order on August 11th, 2015, asking the Election Commission to suspend the Aadhaar Voter linkage for the government’s National Election Roll Purification and Authentication Programme (NERPAP). After this the final judgment and order of the Supreme Court did not permit this, the proposed act could violate the Supreme Court Orders.
Aadhaar was never meant to be the proof of citizenship: Aadhaar was issued to all the residents not just citizens. The 2015 Supreme Court interim order prohibited the use of Aadhar for any purpose other than the Public Distribution Scheme, cooking oil, and LPG Distribution Scheme. According to the act, the electoral registration officer may ask for an Aadhar card in and out of the electoral roll list. Although it is specified that no request for inclusion in the voter list will be denied if the person is unable to intimate the Aadhar number.
Prone to voter frauds: The Aadhar database has many quality issues which are highly anticipated that will negatively affect the sanctity and quality of Voter-Identity Cards, making it more vulnerable to fraud. This can be understood from the reports of Rethink Aadhar which says that self-reported errors in Aadhar data are 1.5 times higher than those in the electoral records. Further, linking of the same can pave the way which undermines the secrecy of the ballot, which is the hallmark of constitutional democracy.
Can anything regarding the Aadhar be voluntary? Aadhar was introduced as a voluntary scheme, which was also ordered by the Supreme Court in 2013 but after some years it became mandatory to avail schemes. From registering for education-related things to applying for passports, it has evolved as a bureaucratic forceful imposition over time.
The linking of the Aadhar and Voter ID will also be unconstitutional as it does not fulfill the test laid down by Supreme Court in Puttaswamy’s judgment. For it to be proportional the government needs to show that it is the necessity concerning the legitimate claim. No evidence reflects the duplication errors that exist in the voter database, nor has any data that says that this linkage will reduce the errors. The government has not laid out why the traditional, and time-tested methods are not working, what less intrusive means they have adopted for the same, and most importantly how the gain is proportionate with the privacy concerns that it divulges.
Other Major Concerns:
Apart from the angle of privacy and security infringement, linking of Voter ID with Aadhar card has many other repercussions. The critics of this move say that apart from infringing the fundamental right to vote, it is also going to adversely affect another important right- the right to vote. Another important point for disagreement is that there is also a threat that the secrecy of votes might be affected thus defeating the whole idea of elections and democracy. Thirdly, the effectiveness of the linking process and the further actions does not have any concrete proof. There have been past examples of errors in the past too. For example, attempts in the past to utilize Aadhaar to “clean up” databases of other government registers, such as MGNREGA and PDS, have resulted in wholesale disenfranchisement, with thousands of residents being summarily purged from systems without warning. The critics have also cited mass discrepancies and data leaks in the past as a strong point against the impugned move.
Conclusion:
Linking voter ID to Aadhaar is an ill-considered, irrational, and unneeded approach that might jeopardize our electoral democracy and weaken people’s confidence in the political process. The freedom to vote of Indians cannot be jeopardized by recklessly combining databases and “verifying” identities with an abstract algorithm. Responsible administration cannot be replaced by technological solutions.