Among the changes introduced by the Election Laws (Amendment) Bill, 2021, which was passed by the Lok Sabha on Monday, is to allow electoral registration officers to ask new voters for their Aadhaar numbers to establish their identities.

Officials could also use the 12-digit unique identification number linked to residents’ biometric details to authenticate the identities of already registered voters.

The government has been claiming that linking Aadhaar details with voter IDs will be voluntary. Introducing the bill on Monday, Law Minister Kiren Rijiju said this linkage would “not be compulsory [but] only voluntary”.

However, the text of the bill suggests otherwise.

It says that “no application for inclusion of name in the electoral roll shall be denied and no entries in the electoral roll shall be deleted for inability of an individual to furnish or intimate Aadhaar number...”

However, this provision had been qualified with the phrase “due to such sufficient cause as may be prescribed”.

This phrase gives the power to the Union government to stipulate the “sufficient cause” for which a person will be exempted from producing their Aadhaar. These individuals could be allowed to produce an alternative document that may be prescribed later by the central government.

Lawyers’ warnings

Lawyers told that the wording of the bill makes it clear that this will not be a voluntary exercise.

Apar Gupta, executive director of Internet Freedom Foundation, told that the bill “quite clearly shows that Aadhaar may become a mandatory instrument for people to exercise their right to vote”.

“What will be this sufficient cause will be determined by future regulations,” he said. “However, it is not clearly spelt out on the ingredients of what will be the grounds for such sufficient cause. Hence, it is not voluntary.”

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Prashant Reddy T, a Hyderabad-based lawyer, told that the exact significance of this bill would be clear once the consequences of refusing Aadhaar are known. However, he predicted that the government will impose a penalty on voters who do not furnish their Aadhaar details. Thus, for all practical purposes, it will be mandatory.

The law does not specifically say that the citizen has a right not to disclose their Aadhaar number to the electoral authority, he said. “That would be the only case in which you could say that this was voluntary,” said Reddy. “As long as they do not have a provision like that in the law and the discretion is left with the government to frame rules or interpret how a refusal to comply with the request will impact your name in the roll, I do not think it is voluntary.”

Stringent conditions

Both Gupta and Reddy expressed their apprehensions about the kind of conditions the government could lay down in the future.

Gupta said that even if the government does give voters an option to opt out of furnishing an Aadhaar number, the option may be made so difficult to avail of that it would be practically non-existent. “As experience has borne out, establishing alternative identification forms is cumbersome, inconvenient and sometimes unpractical,” he said.

Giving an example of what could happen, Gupta said that Aadhaar verification of voters may be allowed online but it could be decided that if Aadhaar is not provided, the other ID proof offered would need to be manually verified by a regional electoral officer. “Thereby the alternative itself becomes unviable,” he said.

Reddy said the government might put stringent conditions on voters relating to the situations in which they are exempted from using Aadhaar. “Knowing how the government works, they will define the sufficient cause very very narrowly – which also gives you very little leeway,” Reddy said. “There are very few circumstances in which you cannot disclose your Aadhaar number.”

He said that the law could be challenged for giving too much legislative power to the executive – the Election Laws (Amendment) Bill, 2021, would alter how voters exercise their franchise and therefore should come from the legislature and not be delegated to the executive.

This law will, Reddy said, determine voting rights. It isn’t “a mere procedural issue, but it is the issue of substantial law”. The task “should never have been delegated by Parliament to the government itself. They could have very easily defined in the law, what sufficient cause is.”