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Unaddressed questions of constitutionality make Aadhaar Act and Election Law (Amendment) Act controversial

Written By mediavigil on Thursday, September 29, 2022 | 6:24 AM

Ahead of the upcoming elections in three states, petition in the Supreme Court challenging Section 4 and 5 of Election Law (Amendment) Act and Union Government’s notification dated June 19, 2022  linking UID/Aadhaar Number with Voter ID Number seems to have reached a competent High Court. In line with Election Law (Amendment) Act 2021, Registration of Electors (Amendment) Rules, 2022 under Representation of People Act, 1950 comes into force from August 1,2022 as per notification dated June 19, 2022 to link UID/Aadhaar number with Voter ID number. 

Prior to this a 10 page long The Election Laws (Amendment) Bill, 2021 was introduced to amend the Representation of the People Act, 1950 and the Representation of the People Act, 1951 in the Lok Sabha by Kiren Rijiju, Minister of Law on 15 December, 2021. The Bill's statement of objects and reasons reads:  “The Representation of the People Act, 1950 (the RP Act, 1950), inter alia, provides for the allocation of seats in and delimitation of constituencies for the purpose of election to, the House of the People and the Legislatures of States, the qualifications of voter at such elections and the preparation of electoral rolls, etc. The Representation of the People Act, 1951 (the RP Act, 1951), inter alia, provides for the conduct of elections of the Houses of Parliament and to the House or Houses of the Legislatures of each State, the qualifications and disqualifications for membership of those Houses, the corrupt practices and other offences at or in connection with such elections, etc.” It claimed that “Based on the proposals taken up by the Election Commission, it is proposed to amend the provisions of the RP Act, 1950 and the RP Act, 1951.

The Election Laws (Amendment) Act provides for—(i) amendment of section 23 of the RP Act, 1950, enabling for the linking of electoral roll data with the Aadhaar ecosystem to curb the menace of multiple enrolment of the same person in different places; (ii) amendment of clause (b) of section 14 of the RP Act, 1950 specifying the 1st day of January, 1st day of April, 1st day of July and 1st day of October in a calendar year as qualifying dates in relation to the preparation or revision of electoral rolls; (iii) amendment of section 20 of the RP Act, 1950 and section 60 of the RP Act, 1951 for substitution of the word "wife" with the word "spouse" making the statut
 gender neutral; (iv) amendment of section 160 of the RP Act, 1951 to enable the requisition of premises that are needed or likely to be needed for the purpose of being used as polling stations, for counting, for storage of ballot boxes, voting machines (including voter verifiable paper audit trail) and poll related material after a poll has been taken accommodation for security forces and polling personnel for such period as are notified under section 30 of the said Act. The President gave his assent to the Bill on  29 December, 2021. It was published in the Gazette of India on 30 December 2021. 

The 3-page long Election Laws (Amendment) Act, 2021 has inserted sub-sections in Section 23 of the 1950 Act. The sub-sections states that "The electoral registration officer may for the purpose of establishing the identity of any person require that such person may furnish the Aadhaar number given by the Unique Identification Authority of India as per the provisions of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016: Provided that the electoral registration officer may also require the Aadhaar number from persons already included in the electoral roll for the purposes of authentication of entries in electoral roll and to identify registration of name of the same person in the electoral roll of more than one constituency or more than once in the same constituency." It also inserts the provision saying "Every person whose name is included in the electoral roll may intimate his Aadhaar number to such authority in such form and manner as may be prescribed, on or before a date to be notified by the Central Government in the Official Gazette. 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 due to such sufficient cause as may be prescribed: Provided that such individual may be allowed to furnish such other alternate documents as may be prescribed." 

This law and the rules framed under it were challenged by Randeep Singh Surjewala, a leader of the Indian National Congress in the Supreme Court. The writ petition (civil) was filed on 8 April, 2022. It was registered on 2 May, 2022 and verified on 10 May, 2022. secretary, legislative department, ministry of law and election commission of india were made respondents. The office report noted that similarity found in the present case is based on Justice K.S.Puttaswamy (Retd) v. Union of India (2018). This petition was called on for hearing on 25 July, 2022 before the bench of Dr. Justice D.Y. Chandrachud and Justice A.S. Bopanna. The petitioner was represented by Abhishek Manu Singhvi. Upon hearing the counsel, the Court passed made the order. It reads: “The PIL-petitioner seeks to challenge the constitutional validity, inter alia, of Sections 4 and 5 of the Election Laws (Amendment) Act 2021. An efficacious and alternate remedy is available before the High Court in the exercise of its jurisdiction under Article 226 of the Constitution of India. In view of the remedy which is available in law, we grant the liberty to the petitioner to move a petition under Article 226 of the Constitution of India before the competent High Court.”

Unless a competent High Court declares Sections 4 and 5 of the Election Laws (Amendment) Act 2021 or the entire Act as unconstitutional, those citizens who are already in Voters List are at a liberty to intimate their UID/Aadhaar number "voluntarily" by April 1, 2023.

Given the fact that the constitutionality of Aadhaar Act is itself before a yet to be constituted Constitution Bench, constitutionality of provisions under Election Laws (Amendment) Act 2021 which require linking of Aadhaar number with Voter ID number raises grave questions of legitimacy of this enactment.    

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