On Wednesday, according to news reports, the Union Cabinet approved the voluntarily linking of Aadhaar, a unique 12-digit ID given to residents of India based on their biometric data, to voter identity cards on the basis of an Election Commission recommendation. But many Aadhaar activists and civil society organisations have raised the alarm about this move: they say it could lead to voters being excluded from the rolls and compromise the privacy of their data.

The push to link linking Aadhaar with voter IDs is not new. Neither is the criticism. The Election Commission had started linking the two in 2015. It had already completed the process for around 30 crore IDs when the initiative was stayed by the Supreme Court as part of a case about the constitutionality of Aadhaar.

With the latest Cabinet approval for the initiative, there is a legitimate cause of concern. In 2015, when the Election Commission linked Aadhaar to the voter ID list, about 55 lakh names were deleted from the voter database of two states, Andhra Pradesh and Telangana.

What is the proposal?

The government is considering certain major voting reforms based on the Election Commission’s recommendations. These include reforms to make it easier for first-time voters to enrol by allowing enrolments four times a year (from one time currently). The proposal to link Aadhar to the voter ID database is purportedly aimed at weeding out duplications.

According to news reports, this linking would be voluntary.

Why is this a problem?

There are several concerns about why this proposal: these include privacy concerns and the possibility of voter manipulation, since large amounts of personal data linked to Aadhaar would now be linked to the Election Commission’s voter database.

Historically, the attempts to link the two has not been encouraging. In 2018, an attempt to link Aadhaar to voter ID led a large number of voters in Andhra Pradesh and Telangana being deleted from the rolls.

The Election Commission of India had started a National Electoral Roll Purification and Authentication Programme in March 2015 to link Aadhaar to voter IDs, so that it could deleted names in the voter list that had been duplicated.

In August 2015, the Supreme Court, while hearing a petition on the constitutionality of Aadhaar, passed an interim order prohibiting the use of Aadhar for any purpose other than the Public Distribution Scheme, cooking oil and LPG distribution scheme. Though exact numbers vary, as per a Scroll.in investigation, there were reports of about 30 crore voter IDs being linked during this three-month period.

The effects of this linkage were seen three years later in the 2018 Assembly elections in Telangana. On voting day, lakhs of voters found their names to be missing from the voter list. According to the Opposition in the state, 27 lakh voters had been deleted. Some estimations of deleted names even went up to 30 lakh. That amounts to approximately 10% of the voter base.

Even Andhra Pradesh saw a similar decline of around 20 lakh voters, out of a total voter base of 3.71 crore voters.

Election officials claimed that the decrease could have been due to several possible factors, such as migration of voters between states due to bifurcation of Andhra Pradesh in 2014 or the deletion of duplicated names. However, media houses analysed these claims and suggested that these deletions took place largely because of the linking of Aadhaar and the voter ID database. For instance, The Quint looked at how the claims of migration and de-duplication did not add up.

In 2018, a former Telangana chief electoral officer Rajat Kumar said at a press conference that a new software that was used to link the two databases could have played a role in these deletions.

In many cases, deletions took place without due diligence: a right to information report revealed that there was no proper door-to-door verification of voters whose names were to be deleted.

The problem of exclusion due to Aadhaar has also been flagged previously. In 2020, a study by the Abdul Latif Jameel Poverty Action Lab found that of a sample of 213 ration card deletions that occurred when Aadhaar was linked to ration cards in Jharkhand in 2016 and 2017, only 12% were legitimate deletions. The remaining 88% were found to belong to families that had valid claim to the cards.

The government’s push has also sparked concern about privacy, given that India does not have a functional data protection law. This was illustrated with the leak of the Aadhaar data of 7.8 crore residents from Andhra Pradesh and Telangana in 2019. This Aadhaar data was also linked to the voter database. The data was found in the possession of a company that worked for the Telugu Desam Party. There were allegations that it was being used for voter profiling as well as targeted campaigning.

New Delhi: In this file photo dated January 22, 2016, Rajasthani women show their Aadhaar cards while standing in a queue to vote for Ajmer District Panchayat election. Credit: PTI.

What does the law say?

In 2018, a five-judge bench of the Supreme Court held that the Aadhaar Act was constitutional. It upheld the validity of Section 7 which said that Aadhaar could be made mandatory to access any subsidy, benefit or service that were paid for by the Consolidated Fund of India. It also held that the mandatory linking of Aadhaar to the Permanent Account Number used for income tax is legal. However, it barred private companies from using the Aadhaar authentication system.

The Supreme Court did not explicitly clarify whether Aadhaar could be linked to voter data.

After the judgment came out, the government modified the Aadhaar Act in 2019 to allow the voluntary use of Aadhaar as identity proof for opening bank accounts and obtaining mobile connections. This has been challenged before the Supreme Court and is pending.

In the 2017 right to privacy judgment, the Supreme Court had laid down a three-pronged test to consider if the fundamental right to privacy is being restricted. Is the encroachment to privacy done on the basis of a law? Second, is there a legitimate state aim for this encroachment? The law must be reasonable and must guarantee against arbitrary state action. Third, is the encroachment to privacy proportionate to the purpose of the law under which encroachment is taking place? The linking of both Aadhaar and voter databases would have to satisfy these three tests.

If it is voluntary then why is it problematic?

That the process is voluntary might not mean much. Initially, Aadhaar was pitched as a voluntary facility. In 2013, the Supreme Court ordered that Aadhaar should not be made mandatory. This was conveyed in subsequent orders as well. Though the government maintained that it was voluntary, in practice, it still made Aadhaar mandatory for several services. In 2016, it passed the Aadhaar Act allowing Aadhaar to be made compulsory for people accessing many facilities and services, even though the Supreme Court order was still operative.

The 2019 amendment to the Aadhaar Act said that citizens could choose whether they wanted to give their Aadhaar data to private entities. Yet, in practice, service providers often insist on using Aadhaar for customer verification.

In 2015 as well, the linking of Aadhaar to voter ID was meant to be voluntary. Yet, 30 crore voter IDs were linked in less than three months. Even after the stay by the Supreme Court in 2015, the Election Commission continued to collect Aadhaar information when voters were being enrolled.

After the stay, the Election Commission had in its possession a large number of voter enrolment forms that contained a field for Aadhaar numbers, Huffington Post reported. To avoid reprinting these forms, officials were directed to continue using these forms after blanking out the field asking for Aadhaar numbers. Yet that blacking out never happened. Citizens continued to submit their Aadhaar details while filing these forms.