[dropcap]O[/dropcap]ne of most essential facets of a democracy is the fundamental entitlement of each citizen to a vote of equal value, thereby placing all citizens on an equal footing with regard to the election of their representatives to both Parliament and State Assemblies. The importance of this, particularly in countries with an astronomical gini co-efficient, such as India, cannot be overstated.

In reality, all votes are not equal. Depending on the population and composition of their constituency, voters across different constituencies have variable power and influence on the election of their representatives

Yet, in reality, all votes are not equal. Depending on the population and composition of their constituency, voters across different constituencies have variable power and influence on the election of their representatives. Thus, it is imperative that electoral constituencies are demarcated with utmost care, so as to ensure, as far as practicable, (i) a parity in the constituent population across electoral constituencies within a State (hereafter, “population parity”), and (ii) a balance of demographic heterogeneity, while considering other factors such as geography, compactness, contiguity, etc. (hereafter, “demographic balance”).

Population parity versus demographic balance

Currently, the population figures from the Census of 1971 are used for the determination of the allocation of seats, and this will remain in effect until 2026. The boundaries of these seats were redrawn by the 2002 Commission, which used the 2001 census to equate the population amongst the existing seats

The maintenance of population parity across constituencies within a State is mandated under the Constitution of India (the “Constitution”). Article 81(2) of the Constitution specifies that, so far as practicable, the ratio between the seats allotted to a State and the overall population of the State be the same for all States, and the ratio between the population of each constituency and the number of seats allotted to it be the same throughout (within) a State. Adding to this, Section 8 of the Delimitation Act, 2002 specifies that a Delimitation Commission (the “Commission”) shall undertake the re-adjustment of seats allocated to each constituency within the country on the basis of the census figures (then in force). Currently, the population figures from the Census of 1971 are used for the determination of the allocation of seats, and this will remain in effect until 2026. The boundaries of these seats were redrawn by the 2002 Commission, which used the 2001 census to equate the population amongst the existing seats.

Achieving population parity in constituencies across a State is extremely difficult. Consider that India had a population of ~55 crore as per the 1971 census, and ~102 crore as per the 2001 census, while having a current population of over 130 crore. This has led to a significant imbalance in the population parities across constituencies. The problem is compounded by considerations such as pre-existing borders, groupings and administrative formations, all of which cause insurmountable obstacles to achieving population parity.

Some groups are far more unequal than other other groups. For instance, the presence of 30,000 voters belonging to a single, caste-based community in Lakshadweep would massively affect an election, while a similar scenario in Malkajgiri would be meaningless

Consider the following: the largest parliamentary constituency in the 2014 General Election (Malkajgiri, in Telangana) had 31,83,325 registered voters. A small constituency in states like Telangana or Andhra Pradesh would still have a huge population (such as Araku in Andhra Pradesh, with 12,72,340). To put these numbers in perspective, note that the smallest parliamentary constituency in all of India, which is Lakshadweep, had a total 47,972 registered voters in 2014. Thus, the inherent value of a vote differs vastly both within a State, and across the nation. Complicate this scenario with the various religious, caste, cultural, ethnic and linguistic affiliations that impinge upon and cause groupings of voters and their sentiments during elections, and the inequality is compounded: some groups are far more unequal than other other groups. For instance, the presence of 30,000 voters belonging to a single, caste-based community in Lakshadweep would massively affect an election, while a similar scenario in Malkajgiri would be meaningless.

This is why a demographic balance within constituencies is more important, in many ways, than population parity. Guidelines for the establishment of demographic balance within a constituency is found in in Section 9 of the Delimitation Act, which requires that the Commission undertakes the delimitation of constituencies on the basis of the following principles:

Geographic compactness, with deference to physical terrain, existing administrative boundaries, facilities of communication and public convenience;

Containment of each assembly constituencies within a parliamentary constituency;

Distribution of reserved seats for Scheduled Castes across a State and in such locations where the proportion of population of the caste to the overall is high; and

Distribution of reserved seats for Scheduled Tribes across a State and in such locations where the proportion of population of the tribe to the overall is the highest.

Abuse of Delimitation Act guidelines

The decisions of the Commission with regard to delimitation, are final and beyond the scope of judicial review as well, as mandated under Article 329(a) of the Constitution

However, these guidelines are extremely broad and leave significant scope to the discretion of the Commission to decide how to undertake delimitation. Moreover, the decisions of the Commission with regard to delimitation, are final and beyond the scope of judicial review as well, as mandated under Article 329(a) of the Constitution. This was established in Meghraj Kothari v. Delimitation Commission and others, where the Supreme Court refused to interfere with the order of the Commission establishing the Ujjain Parliamentary constituency as one reserved for Schedule Castes. Hence, there is substantial scope for abuse of the electoral power of delimitation by an incumbent government, unless the complete independence of the Commission is ensured.

Typical abuse of the delimitation process manifests in the form of either malapportionment, or gerrymandering, both of which could significantly affect the outcome of an election

Typical abuse of the delimitation process manifests in the form of either malapportionment, or gerrymandering, both of which could significantly affect the outcome of an election. Malapportionment is the division of constituencies into varying proportions and sizes, so as to benefit a particular group of voters or political affiliations. Gerrymandering is the manipulation of electoral boundaries to affect the social and political composition of a constituency, such as splitting opposition strongholds or consolidating opposition voters in a single constituency by carving out irregular constituencies. Such strategies have long been used in the older democracies such as the United States to disadvantage and effect the cumulative-disenfranchisement of racial groups.

Consider the 2006 Sachar Committee Report which claimed that the Indian Muslim community was being unfairly treated with regard to the demarcation of electoral constituencies; those constituencies with a relatively high concentration of Muslim voters were declared as reserved for Scheduled Caste candidates, while other constituencies with a lower Muslim and high Scheduled Caste proportion remained in the general pool

It is pertinent to note that there have been several instances of such electoral malpractice in India. To illustrate this point, consider the 2006 Sachar Committee Report which claimed that the Indian Muslim community was being unfairly treated with regard to the demarcation of electoral constituencies; those constituencies with a relatively high concentration of Muslim voters were declared as reserved for Scheduled Caste candidates, while other constituencies with a lower Muslim and high Scheduled Caste proportion remained in the general pool. Given that there are no Scheduled Castes recognised among the Muslim community, the consequences of such actions were disastrous for the community as a whole. Effectively, the Muslim vote in India was being negated, and this was slowly being reflected in the overall representation of Muslims in elected office across the Lok Sabha and Assembly seats. One of the key recommendations of the 2006 Sachar Committee report was to establish a delimitation procedure that did not reserve constituencies with a high minority population for SC candidates.

Yet, the delimitation process remains open to being misused to achieve the self-perpetuating political ends of parties in power at the Centre. The Central government constitutes the Commission, which is required to comprise: (i) a chairperson, being a (current or former) judge of the Supreme Court, nominated by the Central government; (ii) the Chief Election Commissioner, or his nominee; and (iii) the State Election Commissioner of the concerned State. Additionally, the Commission is required to have ten associate (and non-voting) members to assist in its duties, who are nominated by the Speakers of Parliament and the various Assemblies. Thus, the potential influence of the ruling Parties over the work of the Commission cannot be dismissed.

How Aadhaar magnifies the delimitation loopholes

It is in this context that the Aadhaar project, or the Unique Identification Authority of India (UIDAI) assumes vital significance.

Many of these databases already contain information such as religion, caste, language and financial information, and thus when linked with Aadhaar data, they present a deep and intimate picture of an individual’s life. A prime example of such databases are the State Resident Data Hubs

The Aadhaar project has overseen the collection of vast amounts of public and private data from Indian residents. This extends to the name, address, family, biometric information and other demographic information (collectively, “Aadhaar data”), all of which have been collected and stored in the central identities data repository (CIDR) managed by the Unique Identification Authority of India. However, Aadhaar data has been provided en masse to other State agencies through processes known as seeding and inter-linking, whereby the recipient agencies have been able to receive, store and correlate Aadhaar data against existing data in their own databases. Many of these databases already contain information such as religion, caste, language and financial information, and thus when linked with Aadhaar data, they present a deep and intimate picture of an individual’s life. A prime example of such databases are the State Resident Data Hubs, which were established by various State governments, without the sanction of law, to contain sensitive personal data and Aadhaar data of the residents of their State. In numerous instances, these databases and the repositories maintained by other State agencies have leaked both private and Aadhaar data of millions of individuals into the public domain.

This indicates the level of Aadhaar data-enabled information on citizens that the Andhra Pradesh Government, and by default, the political parties in power, have access to; such information could easily be used to create caste and religion based voter maps

To understand the impact of such collection, inter-linkage and leakage of the sensitive personal data of Indian residents, consider the April 2018 leak of Aadhaar data from the Andhra Pradesh State Housing Corporation, which saw the private information 1.3 lakh citizens being released into the public domain. This includes the Aadhaar numbers, bank account details, father’s name, address, mobile number, ration card number, occupation, religion and caste information of the affected individuals. This indicates the level of Aadhaar data-enabled information on citizens that the Andhra Pradesh Government, and by default, the political parties in power, have access to; such information could easily be used to create caste and religion based voter maps. Such data would be invaluable to a Delimitation Committee mandated with the task of redrawing the boundaries of constituencies, and could well empower such a Committee with the potential to influence the delimitation process in a manner that could influence the outcome of an election in favour of a particular political party / group. Note that there are numerous instances of such sensitive data being possessed and used by various State Government, departments and agencies.

Undermining our democratic republic

By identifying the religious, caste-based, cultural, linguistic, ethnic and even political composition of streets, neighbourhoods, wards and districts in a State, it will be easy to construct and adjust electoral constituencies in ways that benefit specific political parties and ideologies

Thus, the combination of Aadhaar data with other demographic and social data could well be used by Committee that is pliable and not independent in the true sense of the word. By identifying the religious, caste-based, cultural, linguistic, ethnic and even political composition of streets, neighbourhoods, wards and districts in a State, it will be easy to construct and adjust electoral constituencies in ways that benefit specific political parties and ideologies. Such knowledge would effectively permit the surgical destruction of demographic balance within constituencies. The danger of this happening is real, and to blindly trust that this data will not be used for such political purposes is dangerous; consider the fact that the Maharashtra government engaged a foreign private corporation (SAS) to match 42 million records of Aadhaar with 70 million records of state election data, thereby populating them with the Aadhaar numbers, thereby permitting the State to surveil and index voters at a micro-level. Details of the SAS Project undertaken by the Maharashtra Government are disclosed on the eMaharashtra web portal, available here .

Alternatively, it is possible that an ideal government, populated by statesmen, establishes a Committee comprising independent members above reproach, and that they in fact use the now publicly available Aadhaar-linked data to effect a more equitable reconstruction of constituencies, ensuring both population parity and demographic balance. But it is likely that such hope is misplaced in these dark times for our republic. In either case, the Aadhaar data wouldbe used for a purpose that not authorised under its governing legislations, nor under the Constitution of India.

While the Supreme Court considers the challenge to the validity of the Aadhaar Act, it may well want to examine the issue of, inter alia, misuse of Aadhaar data for political ends; an outcome which, given that the Aadhaar project is now entirely operational and ongoing, might not be stopped even if the entire Aadhaar framework were to be struck down

While the Supreme Court considers the challenge to the validity of the Aadhaar Act, it may well want to examine the issue of, inter alia, misuse of Aadhaar data for political ends; an outcome which, given that the Aadhaar project is now entirely operational and ongoing, might not be stopped even if the entire Aadhaar framework were to be struck down. In this context, it is essential that the total independence of the Delimitation Committee is ensured beyond any doubt, and to this end, one hopes that the Delimitation Committee will be accorded the same status as the Election Commission under Article 324 of the Constitution, so as to prevent manipulation of the power to delimit constituencies.

[Editor’s note: This is the first of a multi-part series called “The Aadhaar blackhole” that The Leaflet will be publishing, assessing the fundamentally undemocratic nature and the unmanageable scale of the Aadhaar-driven data collection drive.]

[Correction: This article had wrongly said that Malkajgiri, India’s largest parliamentary constituency, is in Andhra Pradesh. It’s in Telangana. Also, the article had put 1976 as the year of the Census. It’s actually 1971. The Leaflet is grateful to Twitter user @Sriramsrirangm who pointed these two errors out.]