From the time of Independence until 2019, India’s citizenship law was region- and religion-neutral. The Constituent Assembly debated issues relating to citizenship before giving final shape to the provisions in the Constitution, which came into force in 1950. Later, the Citizenship Act 1955 (Act of 1955) was enacted and also amended several times, incorporating additional measures to regulate the granting of citizenship. The recent enactment of the Citizenship (Amendment) Act 2019 (CAA) enables, for the first time, the granting of citizenship to an individual on the basis of one’s earlier area of residence (country of origin) and religion.
The concept, definition and application of citizenship has thus undergone a transformative shift towards the disenfranchisement and public exclusion of millions of residents of India. The Union Home Ministry has gone into overdrive to prepare the National Population Register (NPR), which is a precursor to a nationwide National Register of Indian Citizens (NRIC). The NRIC law, when applied nationwide, is certain to exclude millions of Indian citizens predominantly owing to the non-availability of documentary proof of birth, death, marriage, domicile and so on. Although public policy statements suggest “no documentary evidence is necessary”, data collection is possible only through the review and factual checking of a multitude of documents. Thus, the NRIC and its primary data collection surrogate the NPR are discriminatory and iniquitous.
The process of NPR has been put under abeyance temporarily owing to the COVID-19 pandemic. The pandemic itself has caused untold misery to millions of migrant labourers and low-income families all over India. It has also forced the Union government to postpone and reschedule its NPR data gathering and preparation of NRIC listings. It is expected that after the impact of COVID-19 is normalised, the NPR and NRIC, along with the CAA, will gain ground in public policy and administrative implementation. We strongly believe that despite all the aggressive action by the government to manipulate the current legal provisions, NPR data collection and preparation of the NRIC should never be a national priority.
It is disturbing to find that the government’s decision to execute and update the NPR process, along with the tangential use of CAA, has led to serious internal conflict in the entire country, especially between religious groups. The CAA, although meant to address unsettled international migration issues, can have a manipulative and exclusionary impact on many citizens. The CAA is highly discriminatory, especially towards Muslims, the largest minority in India. The Central government considers the joint execution of NPR-led NRIC and CAA as necessary for high electoral gains during the State Assembly elections in West Bengal due in 2021.
It is not only Indian civil society that is aggrieved. In an application to the Supreme Court of India, the United Nations High Commissioner for Human Rights stated that “States must respect and ensure that migrants in their territory or under their jurisdiction or effective control receive equal and non-discriminatory treatment regardless of their legal status and documentation they possess.”
National Population Register The 2003 amendment to the Citizenship Act of 1955 introduced Section 14A with the aim of creating the National Register of Indian Citizens (NRIC). A set of rules called “The Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules-2003" [2003 Rules] provided for the NPR based on data collected from all residents of India so that the NRIC could be prepared. The Ministry of Home Affairs and the office of Census of India, through a gazette notification on July 31, 2019, announced a data collection exercise of NPR from every citizen of India from April to September 2020. The instruction manual directs the collection of data by administrating a set of 14 questions, with or without documentary support, from all the 1,350 million residents across India, except of those whose data is already with the government. The NPR, in fact, is the primary step in collecting undefined evidence that supports qualification to be determined as a citizen or not. The 2003 Rules empowers the functionaries and local registrars to assign “doubtful citizen” or mark “D” in the NPR for those who fail to provide certain documents or fail to convince the investigator that he/she is a citizen [Rules 2(l), 3 (1-4), 4(1-4) of 2003 Rules]. Although the Union Home Minister stated in Parliament that “doubtful citizen” categorisation would not be done during the process of verification and preparing the Local Register of Indian Citizens, his statements are in conflict with the legally mandated 2003 Rules. Hitherto, it was the task of the government to identify a non-citizen, if any, but the effect of the 2003 Rules is such that the onus of proving citizenship has taken a shift and the burden is on the citizen. In the context of the Assam NRIC, in the Sarbananda Sonowal case (2005), even the Supreme Court has placed the onus of proving citizenship on the individual. This will cause serious disorder in the entire process of identification of citizens in a country with a massive population of close to 1.4 billion. This overreach into a citizen’s privacy, coupled with the exclusionary nature of CAA, is a cause of major concern.
Challenges
The concept of the Indian ethos, explained through social diversity, pluralism, religious tolerance and a sense of inclusiveness, has come under stress especially during the last quarter-century. Religious overtones are the hallmark of India’s general election, and they have become increasingly aggressive over the last two decades. Radical Hindutva politics has increasingly been used to elevate the electoral pitch to grab political power, leading to the rise of majoritarianism. Partly, this is the result of not only politically motivated discourses but also politically manoeuvred governance and welfare policies which direct resources to people of a particular community and isolate those who do not subscribe to the idea of Hindutva nationalism. Many such avenues have now opened up through legislation and even through the interventions of the judicial system and courts of law.
The greatest danger to Indian democracy has emerged from institutions created by the Constitution and through the statutes of the Indian Parliament. They work in coordination with the executive, ignoring the critical rule of law guaranteeing separation of power. As the journalist and author Sidharth Bhatia put it, “The judiciary is no longer the beacon of hope it was.”
Specifically, state-supported anti-Muslim rhetoric with a long-term strategy to make, keep and enhance economic, social, and political vulnerabilities is already under way. There are many anti-low caste and anti-poor tendencies in formulations and execution of laws during recent times. The CAA is the most recent institutional and legal tool intended to create turmoil, confusion and even violence in a manner that creates jubilation of the majoritarianism politics. It is pertinent to quote the senior advocate Rajiv Dhavan: “The CAA is perhaps the modern world’s first ‘refugee legislation’ to be subsumed by hate and discrimination…. The CAA is gratuitous violence to the ideals of the Constitution which binds this great multi-diverse nation together.”
At this point of time, the representation of Muslims in democratic institutions, Parliament and law-enforcement agencies, is abysmally low. Even the Prime Minister of India targets Muslims in public speeches, as when he stated that protesters against the CAA could be identified “by the clothes they wear”.
Although there are safeguards such as the judicial process, the procedures are complicated and slow, and often reaching a resolution in one’s lifetime is not possible. The so-called fast-track institutionalisation of the judicial process fails due to the large number of cases, often numbering in the millions, lack of adequately trained judicial personnel, a myriad of referrals and aggravated red-tapism.
Assam Accord
The ongoing yet troubling experience of the preparation of NRC in Assam is a watershed event and a red herring to citizens all over India. Although, the historical facts and basis for NRC in Assam was different because for all practical purposes the entire population of the State was categorised as “doubtful” by assigning the onus on the individual residents to prove their citizenship. This was to be done through the presentation of a large number of documents that they possessed to become eligible to be listed in the Assam NRC. Failing this, and subject to the outcome of cumbersome and expensive litigation, one would become a stateless person.
Under the supervision of the Supreme Court, a draft National Register of Citizens for Assam was made ready in 2019. But once it was realised that the greater proportion of those who did not make it to the Assam NRC were Bengali Hindus, the Central government took a political stand to reject the draft NRC, notwithstanding the legal supervision provided even by the Supreme Court . This specific shifting of stand of the Central government is anchored entirely in religion, and has become a routine in the national governmental policies.
Geographically, Assam shares an international border with Bangladesh. The local Assamese inhabitants have been vocal about the changing demographic dispensation in the State mostly owning to the influx of migrants who fled to save their lives during the Bangladesh Liberation war of 1971. As a result of a student movement and ensuing negotiations, a tripartite memorandum of settlement known as the Assam Accord was signed on August 15, 1985, amongst the All Assam Students’ Union (AASU), the Union of India and the State of Assam. The terms of this Accord specifically provided that steps be taken to detect and deport illegal migrants through a clause—“the Government will give due consideration to certain difficulties expressed by AASU/AAGSP regarding the implementation of the Illegal Migrants (Determination by Tribunals) Act, 1983”.
Now that the Assam NRC is ready, its utility lies in the acceptance of the Central government as a dominant party of the Accord. Yet the Central government has stated it might reconsider preparing an NRIC in Assam, while the NRIC is implemented nationwide. Such public policy postures of the Central government give credence to the discriminatory factor that it is Hindus who constitute the largest share of the Assam NRC. However, many groups supporting the Assam Accord intend to follow the original NRC listing which supports their intended objective of protecting the social, cultural and linguistic identity of the Assamese. This can be inferred because various groups in Assam have filed writ petitions challenging the validity of CAA-2019 in determining the citizenship which brings religious discrimination into play.
It is, therefore, commonly believed that the Central government will resort to similar discriminatory practices while conducting the nationwide NPR data collection and the preparation of the NRIC all over India. The concept of marking individuals as “doubtful” and the legal provision of the 2003 Rules will become the tools for fiddling with the status of individuals who have long since been citizens of the country.
Importance of Census data
It is useful to understand the collection, collation and utilisation of the Census of India data as opposed to the data which is to be collected through the NPR. The Census of India has a long history of its conduct, data focus and data collection strategy and use. It has also remained a fairly transparent “data system” that enables a transparent presentation of the social, educational and economic (labour force) structure of the country. The data concepts, data units, unit of data analysis and procedures are well-defined and understood by all stakeholders such as the government system, academia, international agencies and the corporate sector. The data are collected and protected under law and cannot be used for any purpose other than data aggregation needed in national, regional, State and district-level development planning. In fact, Census data have no evidentiary value. Section 15 of the Census Act specifically states that records of census shall not be open for inspection nor be admissible in evidence. In the past, Census data have substantially impacted policy formulation and more importantly budgetary allocations for welfare schemes of the Central and State governments.
Over the years, Census data have been used for several policy formulations in political, economic, demographic and inter-State planning. For example, the Delimitation Commission utilises Census data for demarcation of constituencies and allocation of representation to Parliament, State Legislative Assemblies and the local bodies. Census data are liberally used by researchers, demographers and analysts to understand population growth trends and thus make population projections. The corporate sector uses the age, sex and economic status data to create their own market structures. More recently, inter- and intra-State migration streams have been used to finalise State-specific employment policies favouring local applicants. A few nationwide policies which used Census data are allocation of food entitlements to the poor through “Right to food”, education entitlements through Sarva Shiksha Abhiyan and employment entitlements through the Mahatma Gandhi National Rural Employment Guarantee (MGNREGA) schemes.
On the contrary, the NPR exercise is one which will seriously affect the body polity; the outcome will certainly redefine the natural relation of the inhabitants of the country who have since long been citizens of India. The citizenship of an individual is a status relatable with the territory of the nation state and, in most cases, recognised or conferred through sovereign powers. In case of the person being a non-citizen in a system, he/she is a stateless person with limited rights flowing from the customary natural rights. Yet, he/she will find an exclusionary path within the modern democratic, bureaucratic and legal system, be it political rights or social and economic security. The absence of citizenship status of a person, therefore, perpetuates inequality.
Modification/amendments in the 2003 Rules
It is important to note that Rule (3)5 under the 2003 Rules stipulates that a “Local Register of NRIC shall contain the names only after verification is made from the Population Register”. Further, as per Rule 4(3), a verification process of the data of NPR must precede, and any “subjective dissatisfaction” in terms of Rule 4(4) of any individual shall declare him/her “doubtful”. This element of subjectivity in branding a citizen “doubtful” would lead to an adjudication of facts. The facts should be ascertained on the basis of a specific and simple set of parameters in keeping with the constitutional tradition of citizenship, such as birth or residence. The other option can be to omit Rules 3(5), 4(3) with suitable modification in Rule 4(4) in relation to declaring a person “doubtful”.
The NPR data collection process considers it desirable to review and document personal details from many documents such as Aadhaar number, election photo identity card or voter identity card, Indian passport, driving licence, details of birth of the person and their parents, and so on. Although the submission of the details of the above documents is not mandatory, in effect this will not be the case. However, even in case a citizen of India has all the above documents and submits all of them, his/her inclusion in the NRIC is still a matter of subjective satisfaction of the officer examining the data of NPR. Therefore, the entire NPR exercise is arbitrary. The local Registrar, who collates the NPR data, is not accountable in case he/she acts unreasonably and shows malice while determining the issue of citizenship of an individual. It is ambiguous as to why a passport holder should not be placed in NRIC without the subjective satisfaction of a local registrar, who is neither a high-ranking officer nor trained by the judicial services. In relation to passport holders, the Delhi High Court has stated that “As popularly understood, however, a passport, when issued to a citizen who goes out of his country to a foreign land, is a political document by which the bearer is recognised in foreign countries as a citizen of the country which issued the passport”. Hence, why a passport should not be a guarantee for a person to not be in the doubtful list is not understandable. Undermining the passport issued by the Government of India is a shameful act in the process of the NRIC which may lead to international ramifications.
The issue of National ID cards or a Register of Citizens is one that has been tried and then ultimately scrapped by developed countries such as the United Kingdom, for reasons of cost and privacy. The interest of the state in ensuring services to those who need it most and the interest of the individual, whose privacy and citizenship are paramount, require a delicate balancing act. The threat of loss of citizenship is sought to be used to erode the privacy of individuals. Further, this threat puts at risk and discriminates against a sizeable religious minority in India.
The way forward
The government must come out with a set of simple, concrete and unambiguous parameters that a bona fide citizen can produce easily even when marked “doubtful” under the 2003 Rules, and any improper declaration he/she can challenge as a matter of right. These parameters, in keeping with constitutional traditions, will be the matrix of facts to prove birth, residence, place of education, ownership of property and so on within the territorial boundaries of India.
The sheer complexity of the diverse demography of India requires that minimum facts ought to be needed to be proved. The more they have to be established, the more it will lead to fear and confusion amongst “doubtful” individuals and their families. It will also result in arbitrariness and bias on the part of the adjudicating authorities and in obvious miscarriages of justice that clog the judicial system for years, even as it burdens the national exchequer with the cost of maintaining the infrastructure of detention centres and tribunals and their staff. Amongst this, the provision of inviting objections from the general public while determining the issue will create further complications in this process. In the absence of the above safeguards, the NPR/NRIC exercise based on the 2003 Rules will lead to insurmountable incongruity, accentuating prevalent tense and exclusionary tendencies to alter the social fabric of contemporary India. Many of these shortsighted legal provisions are amenable to extensive corruption, arbitrariness and discriminatory actions by the mighty and prejudiced bureaucracy, administration and social institutions. One can clearly foresee fraud on the constitutional protection of civilians, subjecting them to an inefficient and expensive legal process, which is already under stress. Without immediate positive, objective and well-researched interventions, India may well witness one of the largest and severest human tragedies in the civilised world.
Abusaleh Shariff works with the Centre for Research and Debates in Development Policy, New Delhi, and U.S-.India Policy Institute, Washington D.C.
M.R. Shamshad is Advocate on Record in the Supreme Court of India, New Delhi.
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