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Synopsis

A division bench of the Supreme Court on Monday issued notice in a plea challenging the Election Laws (Amendment) Act, 2021 and amended Section 23 and Section 28 of the Representation of People’s Act, 1950 (RP Act), and the Rules made pursuant thereto,
namely Registration of Electors (Amendment) Rules, 2022, which together enable the Election Commission of India to use the Aadhaar database in the process of deletion and updation of entries in the electoral roll.

Senior Advocate Shyam Divan, appearing on behalf of petitioner SG Vombatkere told the Court on Monday that as per the judgment in Justice K.S. Puttaswamy (RETD) & Anr. vs. Union Of India & Ors, the Aadhar card be made mandatory only if some benefit of subsidy is sought to be conferred and not if there is an intrinsic right and the right to vote is stated to be at the highest level of such a right.

Court was further told that alternative proof was available to a voter only if he is not able to furnish the Aadhar number because he does not have an Aadhar number and an option of being unwilling to furnish an Aadhar number if alternatives are available is not permitted.

Justices SK Kaul and Abhay S. Oka accordingly issued notice in the matter while adding that there is possibility that in certain tribal areas even the alternative documents may not be available.

Notably, the PIL also challenges the notifications issued under the Amendment Rules, 2022 by the Election Commission signaling the commencement of the exercise contemplated by the RP Act.

Arguing that preparation of electoral roll is to be independently performed by ECI under the constitutional scheme, the plea submits that the exercise sanctioned under the RP Act, Rules and the Notifications poses a major threat to the independence of the Election
Commission insofar as the Election Commission has made the function of the preparation of electoral rolls dependent on the processes and systems of Aadhaar/UIDAI that it has no control over.

This threatens electoral democracy which is a basic feature of India’s constitution, the plea submits.

It is further submitted that the proposed amendment seeks to mandate/encourage that people link their Aadhaar numbers to the
electoral rolls.

"This proposed linkage would have a detrimental impact on people’s ability to exercise their constitutional and legal right to
vote, as it is reasonably certain to cause mass disenfranchisement, through mass exclusions from voter rolls as people are removed from the voter list without due process...", the petition states.

Linking these two databases would also pose an unacceptable and unconstitutional privacy threat to eligible voters, states the petition, leading to voter profiling, amongst other harms.

The PIL additionally submits that Aadhaar – ECI database linking, compromises the secrecy of the vote which is fundamental to the free exercise of electoral choice.

Case Title: S.G. VOMBATKERE vs. UNION OF INDIA & ORS.