Election Laws (Amendment) Bill, 2021

Introduction

The Election Laws (Amendment) Bill, 2021 was tabled and passed in the Lok Sabha on December 20, 2021, ratified by the Rajya Sabha the following day, with the intent to amend the Representation of the People Act, 1950 (allocation of seats, delimitation of constituencies, qualifications of voters, and preparation of electoral rolls) and the Representation of the People Act, 1951(conduct of elections) to implement certain electoral reforms. The bone of contention in this bill was the amendment to Section 23 of the RP Act allowing linking of electoral roll data with the Aadhaar (a unique identification for the citizen of India) where data misuse and infringement of privacy inter alia were the major concerns from the critics.

Main Provisions

Linking Aadhaar with Electoral Data: The 1950 Act has the provision for a person to apply to include their name in the voter list of a constituency. After verification by the Electoral officer, based on his satisfaction, he would decide whether the name of the person should be included in the electoral list. The Bill demands that the electoral officer may seek the person’s Aadhaar details for as an identity proof. This Aadhar proof is also required for the already registered voters to cross check their presence among the voter list. Persons not having their names in the voter list, in case of Aadhar card unavailability, may however produce alternate documents issued by the central government to establish their qualification to vote.

Multiple Qualifying Dates for Enrolment: Amendment to clause (b) of Section 14 of the RP Act will allow to have four "qualifying" dates for eligible people to register as voters. At present, 1st of January is the only qualifying date. This means that a person who turns 18 after first of January can register for voting only when the voter list is prepared the next year. To solve this issue, this Bill provides four qualifying dates in a calendar year, which will be the first day of months January, April, July, and October.

Obtaining premises for election: Previously, the government could reserve premises to be used as polling station and storing ballot boxes, as per the 1951 Act. The Bill further expands the usage of premises for counting, storage of voting machines and poll-related material, and accommodation of security forces and polling personnel.

Incorporating Gender-neutral provisions:

The gender-neutral provisions incorporated in this Bill considered substituting the word ‘wife’ with the word ‘spouse’ demonstrating that the personnel can be both male and female. This also promotes the participation of women in government services. The ‘spouse’ is supposed to vote, either in person or through postal ballot, in behalf of armed force members or government employees posted abroad.


Criticism

Aadhar Optional - Since the Supreme Court has judged in 2015 that Aadhar is not mandatory but rather voluntary, the strategy of linking voter information with Aadhaar does not seem to be an effective strategy. Furthermore, Aadhaar was not considered as a proof of citizenship, but only as a proof of residence instead. In addition, the critics believe that the Bill violates the Supreme Court verdict on Justice K S Puttaswamy case.

Fears of Exclusion from Voting: The Bill empowers electoral registration officers to establish the identity of the applicant through Aadhar cards. If the Electoral officer is unsatisfied with the furnished identity proof, the person may be excluded from voting, thus violating Article 326 of the Indian Constitution which mandates elections to be held on the basis of adult suffrage.

Data Protection: Critics opine that since there is no data protection law in effect, data sharing between Aadhar and voter id could prove harmful without proper checks and balances.

Privacy Concerns: Election Commission of India (ECI) has a distinct verification process, and its database is isolated from other government entities. Linking Aadhaar with Voter data would enable sharing of data between the ECI and Unique Identification Authority of India (UIDAI) which could result privacy infringement of citizens.


Government’s clarification

Bill by ECI recommendation: According to the government, the Bill was based on the Election Commission of India's (ECI) proposals which suggested linking of Aadhaar with voter ID to provide an additional tool in authenticating a voter’s identity.

Linking not mandatory: The Government clarified that the linking of Aadhaar with voter information is not mandatory but rather voluntary.

No Risk of Disenfranchisement: No person shall be denied application for inclusion of name in the electoral roll shall be denied and no entries in the electoral roll shall be removed if the person is unable to furnish or intimate Aadhaar number.

Preventing Multiple enrolments – The government clarified that the vital reason for tabling the bill was to prevent the same person voting in different places, thus eradicating duplicity and ‘purifying electoral rolls’.

Preventing bogus voting – Linking Aadhar with voter list would simply mean that illegal immigrants are kept away from the election process, weeding out bogus voters who had fraudulently registered themselves in the electoral list, and also prevents the same from happening in the future.


Conclusion

A flawless voter list is sine qua non of a fair election process as guaranteed under Article 324 by the Indian Constitution. Therefore, the Government should initiate a comprehensive legislation enabling a detailed discussion and debate in the Parliament. In addition, the bill should specify the extent of data sharing between the two databases, the methods through which consent will be obtained, and whether consent to link the databases can be revoked.



This article is written by Rakesh Behera, of sambalpur university.

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