India’s First Metadata case: Why no to electoral bond and Sangh’s donor driven One Nation, One Election and One Unique Identifier? Part 8 | Gopal Krishna

In a functional democracy, election is a dialogue with the people. The frequent dialogue and deeper dialogue is like sunlight for democracy and which is good for the health of citizens’ inherent natural rights. Dr. B.R. Ambedkar, independent India’s first law minister underlined that democracy is a government by dialogue in one of his last political speeches on December 22, 1952 at a programme organised by the Poona District Law Library.

When a group of educated young Indians complained to Swedish Nobel Laureate Gunnar Myrdal, the author of Asian Drama, The Political Element in the Development of Economic Theory, An American Dilemma about the disorder and unruliness of democracy during his visit to India, he told them: “Whenever there is a problem in a democracy, the solution lies in more democracy rather than less democracy”. The idea of One Nation One Election is about lessening democracy. It is aimed at altering the rules of the game of the electoral democracy after electoral victory of the ruling parties. Its proponents want to make their electoral triumph permanent. This idea will end up emptying the democratic content from the concept of democracy and constitutionalism.

Pursuing the path of initiatives like demonetisation, Aadhaar Act, National Intelligence Grid (NATGRID), unconstitutional electoral bond and illegitimate corporate funding of parties under the Companies Act, a High-Level Committee was constituted by the Union government in September 2023 to examine the issue of holding simultaneous elections for the Lok Sabha, State Legislative Assemblies and local bodies of all States. Its report was submitted in March 2024. The recommendations of the committee was accepted in September 2024 by the Union Cabinet. The committee’s report records that 15 political parties are opposed to simultaneous elections and 15 parties have not taken a position on the subject. The parties which did not take a position on the subject of simultaneous elections before the committee are: Rashtriya Janata Dal, Telugu Desam Party, Yuvajana Sramika Rythu (YSR) Congress Party, Rashtriya Lok Dal, Bharat Rashtra Samiti, Indian Union Muslim League, Jammu And Kashmir National Conference, Janata Dal (Secular), Jharkhand Mukti Morcha, Kerala Congress (M), Nationalist Congress Party, Rashtriya Loktantrik Party, Revolutionary Socialist Party, Sikkim Democratic Front and Shiromani Akali Dal (Simranjit Singh Mann). Most of these parties are likely to oppose simultaneous elections. Admittedly, the implementation of the idea of simultaneous elections requires at least 15 amendments in the Constitution of India and several amendments in the State laws. It is akin to re-writing the constitutional geography. It entails re-plumbing the electoral landscape.

The idea of simultaneous elections is the outcome of the fantasy of the commercial czars, the donors of the ruling parties in general and 185 billionaires of the country in particular. It is the brain child of the 1% of the richest in India who own over 40 % of nation’s wealth and over 22 % of the income. Notably, the Federation of Indian Chambers of Commerce and Industries (FICCI)’s delegation met the committee on One Nation, One Election to express its support for simultaneous elections. It highlighted the negative impact of multiple elections on the Ease of Doing Business and prioritizing government spending for economic growth over political incentives. FICCI, the association of illegitimate donors of the ruling parties wrote: “In 2024 and beyond, modern digital technologies for authentication (such as already used for Jeevan Pramaan for pensions), and components of India Stack can be used to dramatically improve the process.” It has been claimed that India Stack is a set of digital identifier products centered around UID/Aadhaar Number. It commenced with the introduction of the UID/Aadhaar Number in 2006. Notably, beneficial owners of private firms like OnGrid, who were part of core team of Aadhaar project familiar with Aadhaar ecosystem are exploiting Aadhaar database by paying lip-service to "prior consent" of the residents of India. FICCI, body of unconstitutional electoral bond donors proposed that there should be “Only one universal electoral roll, with Aadhaar-based updating.” Isn’t their advise linked to donations they gave to the ruling parties using illegal and immoral electoral bonds? Can a quid pro quo be ruled out? A controlled democracy seems to suit their economic interests. Aadhaar Number based India Stack is creating an digital architecture for unlimited and endless surveillance akin to what has been shown in Minority Report, a 2002 movie directed by Steven Spielberg drawing on Philip K. Dick’s novel. India Stack’s own tweet revealed it in a Orwellian photo.

A delegation of the Confederation of Indian Industries (CII) met with the committee and endorsed the policy of One Nation, One Election. It raised concerns about the challenges posed by asynchronous elections, including delays in infrastructure projects and constraints on government staff capacity during election cycles. Simultaneous elections offer a solution by minimising production loss on election days. Its proposed mechanisms for implementation include conducting elections in a single stage every five years or in two stages with a gap of at least 2.5 years between them, optimising the electoral process, and enhancing governance continuity.

The idea of simultaneous election is aimed at subjugating popular dissent against unprecedented economic injustice, economic inequality to normalize electoral autocracy amid backsliding of democratic institutions. Instead of adopting the least expensive path of more democracy, more decentralisation and deeper political education, primary argument which is advanced in favour of simultaneous election is an exercise in sophistry. The proponents of simultaneous elections like Syama Prasad Mookerjee Research Foundation, Akhil Bharatiya Adhivakta Parishad, FICCI and CII and parties supported and promoted by them seem to have forgotten to include internal elections of political parties, co-operative societies, agriculture produce marketing committees, resident welfare associations and student unions in its ambit for simultaneous elections! They forget that only 7 States out of 193 States hold simultaneous elections.

Notably, the associations of companies like FICCI and Associated Chambers of Commerce and Industry (ASSOCHAM) have underlined the link between NATGRID and UIDAI’s Aadhaar data grid in their reports.

The 121-page 2009 report of the Task Force on National Security and Terrorism constituted by the undeclared undemocratic political party of pre-independence times - FICCI, argues for a secure e-network for connecting all district headquarters and police stations NATGRID under National Counter Terrorism Agency. It observes, "As Nandan Nilekani goes into operationalising the UIDAI, there is a case for factoring inclusion data, as part of the national grid to assist in counter terrorism." This was one of the earliest occasions wherein NATGRID and UID/Aadhaar Number link was underlined.

Another joint report of the ASSOCHAM, an undeclared political party of companies and KPMG, Swiss Consultancy titled "Homeland Security in India, 2010" had revealed this link as well. ASSOCHAM’s joint report of June 2011 with Aviotech, an initiative of the promoters of the Deccan Chronicle Group titled "Homeland Security Assessment India: Expansion and Growth" refers to the "The requirement in Biometrics for all the subsequent programs under the National Census will become significant." This shows where the NPR program which is linked to UID/Aadhaar National Population Register (NPR) is headed. NPR is implemented by Regisrar General of India. Census Commissioner happens to be ex-officio Registrar General of India.

It is noteworthy that Capt Raghu Raman who is currently working with Adani Group as a Leadership Consultant used be the Chief Executive Officer (CEO) of Home Ministry’s NATGRID. His tenure as CEO of NATGRID ended on May 31, 2014. Prior to this, he was a CEO of a multinational security company, Mahindra Special Security Services Group, a subsidiary of the Mahindra Group. Raman was head of Subgroup on Industry Guidelines and Member, National Task Force on Internal Security, the Confederation of Indian Industry (CII).

Coincidentally, Neelkanth Mishra, the current Chairperson of UIDAI is a member of the CII’s Economic Affairs Council who has worked at Infosys, the company of the founder chairman of UIDAI. Mishra is the Chief Economist of Axis Bank and its whole time director. UIDAI had filed a police complaint on 15 February, 2017 against Axis Bank Ltd alleging they had attempted unauthorized authentication and impersonation by illegally storing Aadhaar biometrics.

In another coincidence, Nilesh Shah, a member of UIDAI Member is the Managing Director of Kotak Mahindra Asset Management Company Limited, a wholly owned subsidiary of Kotak Mahindra bank Limited has been named as member of UIDAI. Kotak Mahindra Bank launched 20th ’Aadhaar on Wheels’ Van in partnership with UIDAI. Mahindra Satyam, formerly Satyam Computer Services Limited merged with Tech Mahindra. France’s $13.5 billion Safran Group’s subsidiary Morpho had bagged a contract along with Mahindra Satyam from UIDAI. Rafale, the French medium multi role combat aircraft (MMRCA), which was selected by India for a $18 billion deal is related to UID/Aadhaar number database project. Rafale is manufactured primarily by a consortium of three French companies, Dassault, Snecma and Thales. Snecma which manufactures Rafale’s engine is a Safran group company. The French government has 30.2% stake in Safran. Safran bought L 1 Identities Soultion, a US company which had signed an MoU with UIDAI as part of Aadhaar database project. Safarn has signed a 30 year contract agreement with China. A joint venture of French group Safran and USA’s General Electric Company had won a multi billion-dollar deal to supply engines for China’s future C919 plane. In yet another coincidence, France is part of the World Bank’s eTransform Initiative launched along with L1 Identities Solution, IBM, Gemalto, Pfizer, Intel, Microsoft and South Korea since April 2010. The Aadhaar Number database projects is being bulldozed as part of World Bank’s eTransform Initiative.

It is apparent that FICCI and CII is behind the idea of one nation, one election and one unique digital-biometric identifier, the Aaadhaar.The report of the committee has recommended amendments to the Constitution of India to enable Simultaneous Elections in two steps. As the first step, Simultaneous Elections will be held for the House of the People and the State Legislative Assemblies. For this, no ratification by the States will be required for the Constitutional Amendment. In the second step, elections to the Municipalities and the Panchayats will be synchronised with the House of the People and the State Legislative Assemblies in such a way that Municipalities and Panchayats elections are held within hundred days of holding elections to the House of the People and the State Legislative Assemblies. This will require ratification by not less than one-half of the States. For the purpose of preparation of single electoral roll and electoral photo identity cards (EPIC) for use in elections to all the three tiers of Government, amendments in the Constitution of India are recommended to enable Election Commission of India to prepare a single electoral roll and EPIC in consultation with the State Election Commissions. These amendments will require ratification by not less than one-half of the States. In the event of a hung House, no-confidence motion, or any such event, fresh elections should be held to constitute the new House of the People or State Legislative Assembly for the “unexpired term” of the House of the People. The Committee has recommended that for meeting logistical requirements, the Election Commission of India will plan and estimate in advance in consultation with the State Election Commissions, and take steps for the deployment of polling personnel, security forces, EVMs/VVPATs, etc., so that free and fair Simultaneous Elections are held in all the three tiers of the Government.

The parties which opposed it before the committee are: Communist Party of India (CPI), Communist Party of India (Marxist), Communist Party of India (Marxist-Leninist) Liberation, Indian National Congress, All India Trinamool Congress, Dravida Munnetra Kazhagam (DMK), Aam Aadmi Party, Samajwadi Party, Bahujan Samaj Party, Marumalarchi Dravida Munnetra Kazhagam (MDMK), Viduthalai Chiruthaigal Katchi, All India United Democratic Front, All India Majilis-E-Ittehadul Muslimeen, Naga People’s Front (NPF) and Social Democratic Party of India (SDPI). The parties which are opposed to simultaneous elections submitted their written objections to the committee, which is recorded in the report. Their letters are available at page no. 2390-2575 of Annexure IV of the committee’s report.

The Communist Party of India does not approve of holding simultaneous elections. It expressed their concerns regarding the same and stated that the proposal for simultaneous elections “is restrictive for democracy and state rights.” It highlighted that holding simultaneous elections is an “attempt at curtailing diversity of opinion by imposing uniformity and pushing the country towards one party rule”.

The Communist Party of India (Marxist) has objected “to the manner in which the concept of simultaneous elections which is being sought to be imposed.” It stressed that the concept of holding simultaneous elections is “fundamentally anti-democratic and strikes at the root of the parliamentary democratic system as ordained in the Constitution.”

The Communist Party of India (Marxist-Leninist) Liberation has opposed the concept of One Nation, One Election. It asserted that simultaneous elections are against the basic structure of the Constitution and would lead to one-party dominance.

The Indian National Congress is opposed to the idea of One Nation, One Election. It has contended that implementing simultaneous elections would result in “substantial changes to the basic structure of the Constitution”. They asserted that it would go against the “guarantees of federalism” and “subvert the parliamentary democracy.” They further stated that “argument that cost of conducting elections are extremely high seems baseless” and “felt that people will be willing to consider this small amount as the cost of free and fair elections to uphold democracy”. Further, they stated that “there is no place for the concept of simultaneous elections in a country that has adopted a Parliamentary system of government”.

The Aam Aadmi Party is opposed the idea of One Nation, One Election asserting that the implementation of simultaneous elections would undermine democracy, the basic structure of the Constitution, and the federal polity of the country. It argued that the proposal would “institutionalise a Presidential form of government which cannot be dislodged by a vote of no-confidence.”

The Samajwadi Party has stressed that holding simultaneous elections to the Lok Sabha and State Legislative Assemblies would lead to domination of national over regional issues. It also observed that if simultaneous elections are implemented, state-level parties will not be able to compete with National parties in electoral strategy and expenditure leading to increased discord between National and State level parties. It may be noted that earlier the Party had supported simultaneous elections.

The All India Trinamool Congress has disapproved of the concept of holding simultaneous elections and questioned the “constitutional and structural implications of One Nation, One Election.” It has stated that this would be against the federal structure of the Indian Constitution and will go against the “basic electoral principles.” They also contended that forcing Vidhan Sabha to go for premature elections just for the sake of contemporaneity will be unconstitutional and ultimately lead to suppression of state issues.

The Bahujan Samaj Party highlighted concerns regarding the large territorial extent and population of the country, which could make implementation challenging. It emphasised the need to strengthen, optimise, and ensure responsiveness in the existing electoral system before embarking upon massive changes. It underscored that the real solution to the current challenges lies in conducting free and fair elections in accordance with the Constitution and the will of the people and promoting adherence to the rule of law among all stakeholders.

The Dravid Munnetra Kazhagam (DMK) party conveyed its opposition to the idea of One Nation, One Election and suggested that holding simultaneous elections would require premature dissolution of State Legislative Assemblies, which is unconstitutional. The Party in the letter also stressed that the “constitution of the High Level Committee by the union government is illegal” and raised questions on the jurisdiction of the same.

The Marumalarchi Dravida Munnetra Kazhagam (MDMK) party stated that they are not in favour of One Nation, One Election and based their argument on constitutional grounds. It stated that there is no concrete evidence for the reduced election cost and focus of the government on governance due to holding of simultaneous elections.

The Viduthalai Chiruthaigal Katchi party opposed simultaneous elections. It asserted that the concept of simultaneous elections is against the spirit of the Constitution. It erodes the federal structure and would introduce a “Presidential form of government through the back door”.

The All India United Democratic Front expressed their view against One Nation, One Election stating that regional parties will face an “organizational crisis to choose between regional and national interest and have to fight for their existence.”
The All India Majlis-e-Ittehadul Muslimeen opposed the idea of One Nation, One Election questioning the constitutional permissibility of incorporating such a “fundamental change.” It emphasised that elections are not mere formalities, and voters should not be treated as rubber stamps. It argued that electoral democracy is the pillar on which India’s constitutional edifice stands, Consultation Process and elections cannot be subject to weak considerations such as administrative convenience or economic viability.

The Naga People’s Front has voiced opposition to One Nation, One Election, stating that it would “invariably defeat the spirit of federal structure.” It was also stressed that a national agenda would overshadow regional and local issues, leading to an eclipse of regional parties. It objected to the overhaul of the Constitution of India, which will be required for the implementation of the simultaneous elections.

The Social Democratic Party of India has opposed One Nation, One Election. They stated that implementing simultaneous elections is unnecessary, impracticable, and “does not square with the concept of federalism”.

Notably, Janata Dal (United) has suggested that the Local Body elections should not be included with the House of the People and State Legislative Assembly polls, because in different States these elections are held under different laws. During the Local Body elections development work does not come to a halt because the Model Code of Conduct is imposed only in a district-specific manner. It suggested that instead of holding Local Body elections with the House of the People and State Legislative Assemblies, these elections could be held together for the entire country.

During the first four general election cycles in 1952, 1957, 1962 and 1967, the elections to the Lok Sabha and State legislative assemblies were held simultaneously. However, due to the subsequent premature dissolution of the Lok Sabha on seven occasions and the premature dissolution of legislative assemblies on various occasions, the elections to the Lok Sabha and various State assemblies are held at non-simultaneously. In 2019, only four States had their assembly elections, along with the Lok Sabha. The elections for the Lok Sabha, Vidhan Sabhas and local bodies are conducted separately because of democratic and historical reasons. Simultaneous election will undermine the political education of the citizens because elections educate citizens more than the formal political education. Sangh’s donor driven idea of simultaneous elections got endorsement of judges who have been sympathetic to their political and economic interests. The constitutionality of simultaneous elections has to be looked at in the context of the emergence of executive minded legislature and judiciary which paves the path for the normalisation of a totalitarian State empowered with the convergence of unlimited demographic data, biometric data, metadata, authentication data and electoral data and unending census of the citizens through Aadhaar Number and National Population Register (NPR).

The findings about surveillance using “versatile spyware tool” Pegasus and electronic-biometric identifiers like unique identification (UID)/Aadhaar numbers raises legitimate concern about the rule of law not only in Poland but also in India due to emergence of an unlimited government-beyond the limits of a democratic constitution and the principles of constitutionalism.

The characteristics of Pegasus spyware which can be installed on electronic devices revealed by the Parliamentary Commission of Poland shows its similarity with UID/Aadhaar number, the identifier. The latter too is operating like Pegasus by providing the controller of Central Identities Data Repository (CIDR) with near-total control over the data of Indians and their devices. This is happening in total disregard of Supreme Court’s operational verdict of September 2018 which states that no aspect of Aadhaar’s metadata cannot be stored for eternity and prohibited storage of such data by government and private authorities.

In the absence of the training of the judges and legislators in the face of the fast pace of technological developments, national asset like nation’s metadata and CIDR of present and future Indians is flowing towards foreign state and non-state actors. It is evident from the handling of the Pegasus case that judges seem enveloped in false technological consciousness, cognitive dissonance and ill-equipped to safeguard supreme national data interest. There has been an instance where a government official overwhelmed almost all of them as part of a 5-judge bench by a mere power point presentation. It is not surprising that their judgement has been found to be questionable by a subsequent 5-judge bench. Like discredited science of eugenics and biometrics, “jurimetrics” too can be overwhelming. The vendors and purveyors of big data technologies are paving a way for extracting judgments as prediction products. The findings of the Polish Commission provides insights to the 7-judge bench which is all set to adjudicate on India’s first metadata case prior to the retirement of the 50th Chief Justice of India on November 20, 2024.

Several reports of the Parliamentary Committee on Subordinate Legislation conclusively establish that Executive must not be trusted by the High Courts and Supreme Court and the legislature. These reports have underlined that different ministries and departments of the Union Executive have framed rules, regulations, bye-laws, schemes or other statutory instruments which are beyond the ambit the laws enacted by the Parliament. Even after this was repeatedly pointed out the the Union Executive has not complied with the recommendations of the committee. It has chosen not comply with the recommendation regarding minimisation of the time-gap between the publication of the draft rules framed under different Acts and their promulgation in the final form. The parliamentary committee monitors and examines that the subordinate legislations of the Union Executive are in accordance with the spirit of the Act or Constitution and also keeps check on the Executive exceeding its powers provided under the Acts of Parliament or the Constitution. Legislation is an inherent and inseparable right of Parliament and it has to ensure that this power is neither usurped nor transgressed under the guise of subordinate legislation. The Committee on Subordinate Legislation of the Lok Sabha is one such instrument. It has been constituted to scrutinize and reports to the Parliament as to whether the powers to make rules, regulations, bye-laws, schemes or other statutory instruments conferred by the Constitution or delegated by Parliament have been properly exercised within such conferment or delegation as the case may be.

The Parliamentary Committee has expressed "the utmost disappointment of the Committee, despite the existence of these guidelines, the recommendations of the Committee are still being followed only in breach by various inistries/Departments." The Committee found that "there are many instances wherein various Ministries/Departments have not adhered to the time limits laid down by the Committee with regard to laying of ‘Orders’, framing of ‘Rules’ under an Act, publication of final ‘Rules’ after their notification in the draft form, printing of ‘Rules’, taking action on the recommendations of the Committee, etc." It was "surprised to find that the Central Secretariat Manual on Office Procedure which caters to all the central government employees in regard to office procedures to be followed by all Ministries, does not include a chapter on Parliamentary Procedure."

One of the important safeguards against assumption of arbitrary powers by the Union Executive is that rules framed by the Executive in exercise of delegated powers should not only be required to be laid before the legislature but that the legislature should also have the statutory right of annulling or modifying them. The Committee have approved the following provision for incorporation in Bills providing for rule-making power:-"Every Rule made by the Central Government under this Act shall be laid as soon as may be after it is made, before each House of Parliament, while it is in Session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of session immediately following the session or the successive session aforesaid, both Houses agree in making any modification to the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be, ; so however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule." There is a time limit for laying of Rules/Regulations. All the Ministries have to ensure that all ‘Orders’ required to be laid before the House are so laid within a period of 15 days after their publication in the Gazette if the House is in session, and if the House is not in session, the ‘Orders’ should be laid on the Table of the House as soon as possible (but within 15 days) after the commencement of the following session. The Committee asked "the Ministries concerned to furnish them with the reasons explaining the delay caused in laying each such ‘Order’ on the Table of the House.” These recommendations of the multi-party Parliamentary Committee has been ignored by the emergence of a totalitarian executive.

In the backdrop of the Supreme Court’s judgement dated February 15, 2024 which held that the Electoral Bond Scheme, 2018 of the Union Executive and the amendments made by the Finance Act to Section 29C of the Representation of People Act, Section 182(3) of the Companies Act and Section 13A(b) of Income Tax Act are unconstitutional, the proposal of simultaneous election does not inspire confidence. The Court has also held the deletion of the proviso to Section 182(1) of the Companies Act, 2013 permitting unlimited corporate contributions to political parties even for loss making companies is arbitrary and violative of Article 14 of the Constitution of India. The judgment of the Court was authored by the 50th Chief Justice (Dr.) Dhananjaya Y. Chandrachud. The next Chief Justice Justice Sanjiv Khanna wrote a concurring but separate opinion. The Electoral Bond encashed by the ruling political parties seems to be behind the push for simultaneous elections. In the aftermath of the judgement, the continued donations of up to 7.5 % of the annual profit of members of entities like FICCI and CII appears to be dictating the legislative proposals and decisions of the Union Cabinet.

Undoubtedly, legislation is exclusive to legislatures and verdicts to courts. The exercise of legislative authority by either Executive and judicial authority by the Union government and State governments through tribunalisation and subordinate legislation is not in consonance with democracy and constitutional prescriptions. The exercise of legislative and judicial function by the Executive is jurisprudentially and jurisdictionally beyond constitutional sanctification. The idea of One Nation, One Election and One centralised online database of digital-biometric identity of citizens is contrary to Charles Montesquieu’s The Spirit of Laws (1748), the holy book against despotism. The extinction of separation of powers through the proposed constitutional amendments is against the principles of constitutionalism and is an invitation to totalitarianism.

(Author: Gopal Krishna is a lawyer and a researcher of philosophy and law. His current work is focused on philosophy of digital totalitarianism and monetisation of nature. He has appeared before Supreme Court’s Committees, Parliamentary Committees of Europe, Germany and India and UN agencies on the subject of national and international legislation. He is the co-founder of East India Research Council (EIRC). He is convener of Citizens Forum for Civil Liberties (CFCL) which has been campaigning for freedom from UID/Aadhaar/NPR and DNA profiling through criminal identification procedure since 2010. He had appeared before the Parliamentary Standing Committee on Finance that questioned and trashed the biometric identification of Indians through UID/Aadhaar Number. He is an ex-Fellow, Berlin based International Research Group on Authoritarianism and Counter Strategies (IRGAC). He is also the editor of www.toxicswatch.org)