The use of Aadhaar by governments fits the classical definition of electoral malpractice as it constitutes manipulation of electoral processes and outcomes so as to substitute personal or partisan benefit for the public interest. Such malpractice threatens the integrity of an election as it is extensive, systematic and decisive.

Electoral Malpractice

Sarah Birch, author of Electoral Malpractice, defines electoral malpractice as the manipulation of electoral processes and outcomes so as to substitute personal or partisan benefit for the public interest.

Does the Aadhaar linkage to the voter ID or the use of Aadhaar to deliver subsidy, benefits and services constitute electoral malpractice?

The then chief election commissioner, OP Rawat, does not appear to have asked this question when he declared in March 2018 that 32 crore Aadhaar numbers had been already linked to voter ID cards.

The government has been insisting that Aadhaar is necessary to target subsidies, benefits, and services and do direct benefit transfers to beneficiaries since the creation of Aadhaar in 2009.

The web portals of the chief electoral officer of various states have been providing voters the ability to link Aadhaar to Voter IDs. The Election Commission has also been linking Aadhaar numbers to voters ID in different states through a process of seeding Aadhaar numbers from other databases. At least till November 2017, Aadhaar could be linked to voters’ ID cards.

Benami Voters and Voter Exclusion

Electoral rolls are revised under Rule 25 or corrected under Rule 26 of the Registration of Electors Rules, 1960.  The process allows for filing of claims for inclusion and objections to the inclusion of anyone under Rule 13.

It also allows for the inclusion of persons inadvertently omitted (Rule 21) and deletion of persons who have died, or are not residents in the constituency, or not entitled to be registered (Rule 21A). This process is meant to ensure that each person on the rolls is a real person and a genuine voter.

What are the consequences of the use of Aadhaar for revision or correction of the rolls under Rule 25 or 26?

Section 4(3) of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 declares “An Aadhaar number, in physical or electronic form subject to authentication and other conditions, as may be specified by regulations, may be accepted as proof of identity of the Aadhaar number holder for any purpose” [emphasis mine].

It is evident that the Aadhaar may not be used as a proof of address, age, gender or relationship. It is also evident that there is no authority with which Aadhaar becomes a proof of identity either. Section 9 of the Aadhaar Act declares “The Aadhaar number or the authentication thereof shall not, by itself, confer any right of, or be proof of, citizenship or domicile in respect of an Aadhaar number holder.” However, the Aadhaar is currently used as a proof of age during enrolment as a voter.

With a view to preventing impersonation of electors and facilitating their identification at the time of poll, Rule 28(2) of the Registration of Electors Rules, requires the Election Commission to issue to every elector an ID card that is certified by the registration officer.

Unlike the Voter ID, that is certified by the registration officer in accordance with Rule 28(3)(d), the Aadhaar ‘card’ or the biometric or demographic data associated with any Aadhaar number is not certified by the UIDAI. Unlike the process of revising the electoral rolls, there is no process of revising Aadhaar database. In fact, there is no process for objecting to assigning an Aadhaar number to any combination of biometric or demographic data in the Aadhaar database. In the absence of such a process to clean the database, no verification or audit of the Aadhaar database has happened either.

Linking a biometric with each Aadhaar number has created impression that there has to be a unique entry of each enrolment. This is clearly not the case as the UIDAI does not have any information about the number of unique biometrics in its database. The UIDAI also indicates that it cannot retrieve a unique record with a biometric. This means that the UIDAI cannot guarantee that it has no duplicates or ghosts.

Almost all Aadhaar numbers are supposed to have been issued on the basis of other primary documents of proof of identity and proof of address. The UIDAI however has no information about the primary ID used, making it impossible to allow the verification of the uniqueness and validity of a Aadhaar number by anyone who uses it.

According to the Affidavit dated 30.10.2017 of UIDAI to the Supreme Court, at most 60 crore persons could have been issued an Aadhaar assuming everyone used the Election Photo Identity Card as one of their primary identification documents. No other combination of primary identification documents allows to generate even as many Aadhaar. At least 58.64 crore Aadhaar of the 118 crore numbers issued by the UIDAI are, therefore, duplicates and ghosts.

Furthermore, according to the CEO of UIDAI, 48% of the Aadhaar numbers have never participated in iris or finger matching. It is evident that Aadhaar is the worlds largest database of ghosts and duplicates. The use of these ghosts and duplicates gives rise to benami or fake identities and transactions.

With the dilution of KYC by the Reserve Bank of India in January 2011, it became possible to use Aadhaar as the sole basis for creating a bank account.

Aadhaar has also been widely used as the means to issue other primary IDs like passports, PAN cards, instant PAN and driving licenses.

This means that the continued use of Aadhaar can easily generate documents that serve as proof of address for Form 6 to apply for inclusion in Electoral Roll or for shifting from one constituency to another.

The use of Aadhaar as a proof of identity, proof of address or proof of age anywhere by the government, allows compromising the enrolment of voters in the Electoral Rolls. It allows the inclusion of benami voters in a manner that is difficult if not impossible to weed out.

The mandatory creep of voluntary Aadhaar has caused the exclusion of millions from accessing their rights. Millions have been deprived from birth certificates, school and college admissions, giving examinations, qualifying for interviews, getting jobs, receiving salaries, accessing healthcare, getting PAN cards, ration cards, water bills, electricity bills, gas connections, driving licenses, claiming pensions, and even a dignified burial and death certificates. This means people are even being denied not only the goods and services but also the primary identification documents that they otherwise could have, as well as their ability to enrol as a voter.

Those whose Aadhaar fails on authentication due to biometric change, technology failure or any other reason are also excluded. Even more serious is UIDAI’s ability to deactivate Aadhaar numbers under section 23(g) of the Aadhaar Act. Deactivated Aadhaar numbers will allow automatic deletion of voters from beneficiary databases, including Electoral Rolls.

The use of Aadhaar to discover and delete duplicate or ghost entries has also allowed the exclusion of legitimate voters by treating those without an Aadhaar or those whose Aadhaar information does not match as ghosts or duplicates. In Telangana alone, 2.2 million people were reportedly dropped from voter rolls, after Aadhaar based “verification” was done in 2015.

The use of Aadhaar to onboard, modify or purify electoral rolls is illegal, causes the inclusion of benami voters and excludes millions of legitimate voters. Furthermore, its use cannot be harmonised with the requirements of the Registration of Electors Rules or rule 35 and 49 of The Conduct of Elections Rules, 1961.

Targeted delivery as electoral malpractice

In 2018, there was outrage across the world as Cambridge Analytica, a private company providing services to political clients, helped influence voters by targeting messages to voters based on their psychometric profiles. Facebook CEO Mark Zuckerberg was grilled by the US Congress for enabling such psychometric profiling through the Facebook ecosystem.

Targeted delivery of subsidies, benefits and services is worse than targeted messaging to win elections. It is control of the electorate to ensure votes.

Part of the cost of providing a good or service to a beneficiary that is paid by the government is a subsidy. For seven decades, the government has delivered subsidies, benefits and services by providing beneficiaries access to subsidised food grains, cooking fuels, medicines, health services, education, seeds, fertilizer and other benefits and services. This has been accomplished by each ministry or department through its own empowering legislation that defines the beneficiaries of its subsidies and the delivery mechanisms. This is done without prejudice to the constituency or political vote of the beneficiary.

In fact, traditional mechanisms of delivering subsidies, benefits or services provide no means to target a voter or a constituency. This traditional process cannot target only those who vote for the ruling party and exclude those who do not vote for the ruling party. Neither can the traditional process create the illusion of delivery of subsidised goods or services as the subsidised physical good or service is made available to beneficiaries. It cannot manipulate a beneficiary list as each ministry or department’s delivery process is subject to physical verification and audits.

Targeted delivery, using Aadhaar, allows the inclusion or exclusion from benefits of persons from within a constituency. Linked to voter ID, it allows the inclusion or exclusion of voters. For inclusion of persons into beneficiary lists, their Aadhaar is seeded to beneficiary lists. Such included Aadhaar numbers are not subjected to certification, verification or audit of their real identity, qualification as beneficiary or even their receipt of the benefit. Neither the department, ministry, nor the UIDAI take any responsibility of the delivery to the rightful beneficiary anymore.

For exclusion of persons from beneficiary lists, their Aadhaar is de-seeded, seeded to benami Aadhaar numbers, deactivated or its authentication is caused to fail. The UIDAI takes no responsibility for the delivery and, in fact, it is an ecosystem of private players who can decide the inclusion and exclusion of benefits.

Direct Benefit Transfers (DBT) replaces the physical delivery of benefits by money transfers, of part of the cost of providing a good or service, to a bank account assumed to be that of a beneficiary. This means there is no longer any physical verification or audit of the subsidies. Prior to dilution of KYC by the Reserve Bank these bank accounts could not be opened by Aadhaar ghosts and duplicates. After the Department of Revenue regularised eKYC as a valid process for opening bank accounts, it became possible to regularise bank accounts opened merely by using Aadhaar numbers without any physical presence of the account holders.

Bankers across the country have disclosed, on condition of anonymity, that they have been subject to coercion by local political forces to open thousands of bank accounts in their branches solely with Aadhaar. The Jan Dhan accounts is one such category of bank accounts that are not verified as to whether they belong to real persons or as within the control of a beneficiary that they claim to bank. The beneficiaries receiving DBT to these bank accounts become virtual. The bank account becomes a surrogate for the beneficiary.

In February 2012, the Nandan Nilekani led Task Force on an Aadhaar-Enabled Unified Payment Infrastructure pushed for money transfers to Aadhaar numbers instead of bank accounts. This replaced the process of government payments to bank accounts of beneficiaries electronically through the Reserve Bank of India’s national electronic funds transfer (NEFT) with payments to Aadhaar numbers using Aadhaar Enable Payment Systems (AEPS) created and run by a non-government private organisation, the National Payments Corporation of India (NPCI). According to Nilekani, who has been advising the NPCI, in violation of section 16 of the Aadhaar Act, over Rs 95,000 crore were transferred to beneficiaries in 2017-18 using AEPS.

The transfer of DBT using AEPS creates virtual and benami beneficiaries who become untraceable. For example, in April 2017, more than 40,000 DBT transfers to persons who were not beneficiaries of part of drought relief for farmers in Karnataka took place. Similar transfers have been reported across the country. Similarly Aadhaar eKYC and Aadhaar payments allowed Rs 168 crore LPG subsidy to be siphoned into 37 lakh bank accounts in Airtel Payments Bank. This enables subtle yet very large scale money laundering for election funding across the country.

This use of Aadhaar clearly constitutes corrupt practice under section 123(1), 123(2), 123(3), 123(6), 123(7) and 123(8) of the Representation of the People Act, 1951.

Laundering elections

The biometric and demographic data associated with Aadhaar numbers are not certified by the UIDAI as belonging to the person who is being authenticated. It has been shown repeatedly that both the biometric and demographic data associated with the Aadhaar number can be changed by both legitimate and illegitimate processes outside the control of the UIDAI or anyone relying on using them.

Neither the UIDAI, nor anyone relying on Aadhaar, have any way of guaranteeing consistent, legal valid, risk free outcomes with Aadhaar. Aadhaar is a Trojan horse that allows private interests to take control the outcome of elections.

It is evident that creating benami voters, excluding real ones, targeting subsidies to select voters, excluding select voters from subsidies, benefits and services, and laundering funds from the Consolidated Fund of India into benami bank accounts using untraceable money transfers are subtle and undetectable means for private interests to seek to alter the voluntary choices made by voters at the polls. The use of Aadhaar as a proof of identity by anyone citing section 4(3) of the Aadhaar Act is, therefore, sufficient to launder elections.

The use of Aadhaar by government fits the classical definition of electoral malpractice as it constitutes manipulation of electoral processes and outcomes so as to substitute personal or partisan benefit for the public interest. Such malpractice threatens the integrity of an election as it is extensive, systematic, and decisive.

The Election Commission of India is charged with unprecedented circumstances to exercise its powers in order to dismantle the extensive and systematic way in which the electoral mandate and the sovereignty of the people is being destroyed.

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