Introduction:
India is a large country with a vast geography and over 1.3 billion people living in it. As of March 2020, the country is administratively divided in to 28 states and 8 Union Territories. Bordering around it in the West is Pakistan, in the North-East is China, Nepal and Bhutan, Bangladesh and Myanmar to its East and Sri Lanka to its immediate South. There are many international border and geographic inconsistencies practically with all countries surrounding India. Further, due to historic-factual inconsistencies at the time of partition, many cross-border migration issues with Pakistan, Bangladesh, China, and Nepal remain unsettled. It is crucial to note that the current map of India, approved by national government, is not the one used by international institutions such as the United Nations. Not only these historic and geographic aspects make India a melting pot of international tensions and strained foreign relations due to disputed borders but also amplifying the task of assigning citizenship to masses who reside around such borders and of specified religious minorities.
It is a fact that most recent social conflicts have sprung up domestically yet have a tangential but legal reference to unsettled international migration issues. Recently, an Indian law ‘Citizenship Amendment Act (CAA) -2019’ provides for grant of citizenship to the ‘persecuted minorities’ from select neighboring countries namely Pakistan, Bangladesh and Afghanistan. This provision amounts to a selective grant of citizenship based on region as well as religion. The minorities in the above-named countries are identified as those belonging to ‘Hindu, Sikh, Buddhist, Jain, Parsi or Christian’; which excludes Muslims (who are dominant residents), Jews, non- religious individuals, and atheists. Note that there are many other neighboring countries namely Sri Lanka, Myanmar, Nepal, and Bhutan that are excluded. There are instances of persecution of Muslims in Myanmar and the Muslims and ethnic Tamils in Sri Lanka who do not qualify for Indian citizenship. Although this law appears virtuous and protects the persecuted, in other words, a gift of India to the humanity; one can at the outset argue that CAA-2019 is discriminatory as it is based on religions and regional differentiation. What is dangerous is its alternative and tangential use to declare millions of bonafide Indians as doubtful citizens for lack of documents as evidence of their citizenship (more later). India, a developing economy is only recently improving its documentary systems and universal implementation of the civil registration scheme which promotes ‘birth’, ‘death’ and ‘marriage’ registration. As on date it would be appropriate to point out that over one half all Indian residents especially the old, women, those whole live in rural areas and economically categorized as ‘below the poverty line’ would not own any of the above stated civil registration documents essential to prove once citizenship.
The United Nations High Commissioner for Human Rights through an amicus curiae has challenged the CAA-2019 in the Indian Supreme Court. While they commend and appreciate CAA 2019 on the ground that it ‘benefit thousands of migrants in irregular situations’; yet has pleaded that it ‘raises other equally important human rights issue including its compatibility in relation to the rights to equality before law and non-discrimination on nationality grounds under India’s human rights obligations’. It also states that it was an essential obligation of the State to eradicate discrimination in public and private spheres.
Many recent legal enactments in India are discriminatory especially towards the Muslims - the largest of the minorities. Untenable justifications, intentionally within the domain of administration and even legal framework are advanced to sustain such discriminatory distinctions. Publications abound supporting the BJP/NDA’s expressed enthusiasm favoring ‘Radical Hindutva’, the concept which has sprung up since 2014 but more conspicuously since the conclusion of the 17th general elections and formulation of NDA-2 government from May 2019. Another landmark of this year is COVID-19, and as its impact gets normalized during 2020 the ugly heads of the Nation Population Register (NPR) and National Register of Indian Citizens (NRIC) along with CAA will gain grounds in public policy and administrative implementations.
The authors are of the opinion that the whole exercise of NPR and NRIC should not be a priority because the history and numbers of the so-called illegal migrants to India are minuscule compared to the massive total population of India; and a different methodology must be used to identify them. As planned by the union government, the NPR and NRIC is a national wide exercise where it is every usual resident’s responsibility to prove that he/she is an Indian citizen which is a case of impossibility due to historic administrative lapses of non-issuance of documents for births, marriages and deaths all over the country.
Until 2009, since the Independence of India, the Indian Citizenship Law has been ‘religion’ and ‘region’ neutral. The Parliament did debate the issue of citizenship soon after Independence when the Indian Constitution took shape, which itemized detailed provisions for Citizenship. The Central Legislation came up with the Citizenship Act 1955 (in short, ‘Act of 1955’) which was amended several times incorporating additional measures regulating the grant of citizenship. ‘The Citizenship Amendment Act, 2019 (in short ‘CAA-2019’) is the most recent enactment of the Central (Federal/National) government. For the first time this amendment enables granting Citizenship to an individual based on the ‘Region or Country’ and individual’s own ‘Religion’. The provisions under section 2 of the Act of 1955 defines an ‘illegal migrant’ and further a new ‘Section 6B’ gives effect to the proviso added in section 2 in the Act of 1955.
The Citizenship Rules-2003: Registration of Citizens and Issue of National Identity Cards
In 2003, the Original Citizenship Act of 1955 was amended by introducing a ‘Section 14A’ with an aim to create the National Register of Indian Citizen (NRIC); and framed a set of Rules called ‘The Citizenship Rules-2003’, Registration of Citizens and Issue of National Identity Cards (hereinafter also referred to as ‘2003 Rules’) provided for National Population Register (NPR) based on data collected from all residents of India so that the NRIC is prepared. The National Government (Office of Census of India, Ministry of Home Affairs); through a gazette notification of 31.07.2019 announced a data collection exercise of NPR from every citizen of India from April to September 2020 (now in abeyance due to Covid-19 lockdown). The instruction manual for NPR directs collecting data by administrating a set of 14 questions with or without documentary support from all the 1350 million residents across India. The NPR in fact is the primary step in collecting undefined evidence that supports qualification to be determined as a citizen or not. (See Rules 2(l), 3 (1-4), 4(1-4) of ‘2003 Rules’). Hitherto. it was the task of the government to identify a non-citizen if any; but since 2003 the onus of proving that one is a citizen of India is assigned on the citizen herself and that information provided by her also becomes crucial evidence. The information sought from citizens in the present exercise is purely private, and mostly not in keeping with the generic pattern of previous NPR exercises. This overreach into a citizens’ privacy coupled with the exclusionary nature of the CAA- 2019, is a cause of major concern.
The Citizenship Rules 2003, empowers the functionaries and local registrar to assign ‘doubtful citizen’ or mark ‘D’ in the NPR to those who fail to provide certain documents or fail to convince the investigator that she is a citizen. Such a mark will enable exclusion of names from the final list of NRIC which is meant to be a public document of reference and of high degree of consequences. Although the Union Home Minister made many statements in the Parliament that ‘doubtful citizen’ categorization will not be done during the process of verification and preparing the Local Register of Indian Citizens; many experts, including legal practitioners have opined that this statement has no value and meaningless since it is contrary to the statutory provisions. Further, preparation of NRC in the state of Assam which has already progressed substantially has highlighted as to how a ‘D’ mark in NPR will lead to exclusion of names in the final NRC list. Consequentially this fear of getting labeled as ‘doubtful citizens’ leading to exclusion from NRIC can only be removed by amending the Rule-2003, thereby excluding such requirement altogether.
Census and Population Counts in India
India is a uniquely large country in the world that has a long history of successfully conducting decennial census. The first complete census was conducted during the colonial era in 1881; thereafter, a detailed federal legislation the Census Act, 1948 (herein after to be referred to as ‘CA48’) was passed. India’s next census is scheduled to be conducted for the reference period 1st March 2021. However, the preparations of census begin at least one year before the final count.
The term ‘census’ has not been defined in the main body of the CA48, but in the introductory part and ‘statement of objects and reasons’ . The CA48 legislation empowers the data collecting authority and functionaries to make physical visits to every dwelling and household to ‘stencil’ or mark a household number; and canvas a pre-determined questionnaire for eliciting data and information. The official website elaborates that - ‘Population Census is the total process of collecting, compiling, analyzing or otherwise disseminating demographic, economic and social data pertaining, at a specific time, of all persons in a country or a well-defined part of a country. As such, the census provides snapshot of the country's population and housing at a given point of time’ .
The 16th national census is due in March 2021 for which the authorities have set out about 31 questions to be asked to the Indian residents. Indian census is also known to be qualitatively one of the best in the world which counts all usual residents living in length and breadth of the nation in millions of villages, towns and many cities. The census of India data is collected both at the level of the household and through individual listing of all its members and considered robust for population counts, age and sex structure and also for understanding levels of education, health and economic status parameters. The Census of Indian operation which is administered through a ‘Registrar General’ under the Ministry of Home Affairs, collects, analyzes and utilizes data under the legal provision of Census of India Act of 1948. The Gazette of India Notification S.O. 119 (E) dated 07.01.2020 has declared 01.04.2020 to 30.09.2020 as the period in which the house-listing operations of the Census of India, 2021 are to take place. Note as mentioned earlier, these dates are the same as gazetted on 31.7.2019 for the conduct of NPR under the Citizenship Act 1955 and rules framed thereunder in 2003.
Are NPR and NRIC Interconnected?
Rule 4 of the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003 provides for using the NPR data to make the NRIC under Rule 4(3). Once NPR data is collected, the government will not ask the citizens whether to convert that data into NRIC or not. After taking the NPR data, the government will not do another house to house enumeration to collect another data for NRC. Note, however, that the NPR data collected is usable mandatorily for the preparation of NRIC. Hence, the legal interpretation can be that the NPR itself for all practical purposes is the NRIC operation. The Central Government has successfully created confusion in propagating that first they will do NPR and then NRC. This explanation is incorrect. The NRIC is mandated to be finalized only with the NPR, with inhouse scrutinization as a matter of routine activity.
After NPR data is collected, the process of marking of ‘doubtful’ individuals will start as per Rule 4(4). No parameters have been stated for when an individual can be marked ‘doubtful’, thereby wholly opening the entire process to the whims, fancies and arbitrariness of Local Registrars who can be anyone and of any caliber, not necessarily a person of certain understanding or of a standard required to determine citizenship of an individual. Once somebody is marked doubtful, his/her entire life will either go into contesting litigation or face a life in detention centers and in some cases be confined to prison. If the individual is Muslim, only he/she will have to go through the process of appeal before the Taluk/Sub-District Registrar and then the District Registrar under Rules 4(5) to 4(7).
The deadly potion is concocted when the NPR is used to assign ‘D’ meaning thereby ‘Citizenship is doubtful’ (CR2003, See Rule 4(4)) during the administrative process. There is no certainty in law and/or in rules as to what documents will determine the citizenship. For example, many documents in isolation or in combination can prove one’s citizenship such as ‘birth certificate’, ‘enlisting of name in voter’s list’, ‘education certificates’ and ‘land records’ and so on. Given a huge incidence of poverty, illiteracy and remote area living such as in rural and forest areas, up to 60 percent of Indian individuals cannot meet the citizenship test which is so vaguely defined. Further, when one is identified as ‘D’, an individual must go through detention and complicated legal process to rectify her status to citizen. Though CAA 2019 has certain riders but considering the way government has been functioning coupled with the fact that by granting citizenship the government will take pleas of sovereign power, all individuals except the Muslims have an escape route to Citizenship under the CAA-2019.
Since the NPR data definitions, data units and units of data analysis are not yet made public, it will be pre-mature to reach out to the masses for data collection, the data which may become useless. Although the NPR was prepared during 2011 to 2015, the issues relating to its use and utility etc were not debated or discussed with experts, academics and the masses. Needless to state that the notifications to undertake the exercises of NPR as well as census had to be put on hold by the authorities in view of the global pandemic Covid-19 and consequential lockdown.
Can Census House Listing and NPR data collection be done together?
The Ministry of Home Affairs has assigned additional responsibility to the Census Registrar to undertake the work of preparing ‘National Population Register’ (NPR) which has nothing to do with census or its related works. NPR is the creation of ‘Citizenship Rules 2003’ to prepare a ‘National Register of India Citizens’ as contemplated in terms of section 14A (added in 2003) of the Citizenship Act,1955.
The administrative mechanism through which the NPR is linked to Census is by assigning an additional responsibility to the Registrar General of Census. The Registrar General of Census is also the Registrar General of Births and Deaths (Act 1969), Registrar General for NPR and Registrar General of Citizen Registration (para 2 (m) of the Citizenship Rules-2003). It is clear from the review of acts and rules that the ‘house listing’, data along with NPR will be the primary data base to prepare NRIC.
After reviewing relevant Acts, Rules and Directives, it is found that the agency which is empowered to prepare NRIC is the Registrar General and Census Commissioner (RGCC) whose primary responsibility is to conduct census and undertake registrations of births, deaths and marriages. Whether this agency has all the wherewithal to determine ‘citizenship’ of an individual is questionable. Yet the Citizenship (Registration of Citizens and issue of National Identity Cards) Rules, 2003 has assigned the responsibility for preparing the NRIC to the RGCC.
The Census on the other hand is done in exercise of powers conferred by Section 3 and Section 17A of the Census Act, 1948 read with Rule 6A of the Census Rules, 1990. The Census Act, 1948 also provides that no information collected during the census would be used in civil or criminal proceedings nor would the said information be disclosed. Yet, the government insists that the NPR data will be collected jointly along with the Census Houselisting operation during April-September 2020; only that a separate questionnaire consisting of 14 items will be used. This joint data collection operation has become a contentious issue because information thus collected will be used to create a hitherto unknown ‘Population Register’ with a sole purpose of preparation of a ‘National Register of Indian Citizens’. The houselisting and NPR are different issues, empowered from two different Acts/Rules and with entirely different consequences, therefore it cannot be conducted jointly and together.
The Challenges:
The historical and world known concept of ‘the Indian Ethos’ which is explained through social diversity, pluralism, evolved mixed culture, religious tolerance and sense of inclusiveness has come under stress especially during the last quarter century; more so during the aggressive election years both at national and state levels. The ‘radical Hindutva politics’ is regularly used to increasingly elevate the pitch to grab the political power leading to majoritarianism. Partly, this is the result of not only politically motivated discourses but also through politically maneuvered governance and welfare policies which directs resources to people of a particular kind – ‘us’ at the cost of the so called ‘them’. The current national government dispensations have several plans to isolate those who do not subscribe to the Hindutva Nationalism. Many such avenues are now opened through legislation and even through the interventions of the judicial system and courts of law.
The recent amendments- ‘The Citizenship Amendment Act (CAA) – 2019’ and preparation of the National Population Register (NPR) on the sly are just two of the numerous similar examples. They directly target those who do not subscribe to ‘radical Hindutva’ and religious minorities, especially Muslims and Christians, and they are certainly not ready to succumb although their daily lives, living and livelihoods are already irreparably damaged.
The greatest danger to the Indian democracy is emerging from institutions created by the Constitution and through the statutes of the Indian Parliament. They are working in coordination with the executive, ignoring the critical rule of law guaranteeing separation of power. It is appropriate to quote – a noted journalist Sidharth Bhatia - ‘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 to them is already in operation now. There are many anti-low caste and anti-poor tendencies in formulations and execution of laws during recent times . CAA-2019 is a tool to create turmoil, confusion and even violence on the ground. Prominent Lawyer in the Supreme Court of India, Rajiv Dhavan says “The CAA is the 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, when representation of Muslims in practically all public institutions, parliament and law enforcement agencies is abysmally low, even the Prime Minister of India, though incorrectly is targeting Muslims, makes public announcements stating that protestors of CAA-2019 “can be identified by the clothes they are wearing ”.
Although, there are safeguards such as choosing the ‘judicial process’, the procedures are complicated, slow and almost never ending, often not able to reach resolution in one’s lifetime. The so-called fast track institutionalization of judicial process fails due to the large number of cases - often in millions, lack of adequately trained judicial personnel, far too many referrals and aggravated redtapism.
For example, those who are wrongly excluded from the NRIC listing, must contest before the Tribunals, constituted, and managed by the executive and not the courts of law. That tribunal shall be burdened with huge number of litigations and at the same time, such as the Assam-experience shows, the judges presiding over the Tribunal were found not to be impartial and were under heavy influence of the political dispensation of the day. A committee of Judges who inspected the functioning of Assam concluded that, “Tribunals do not function independently and are not free from executive influence. Tenure and salaries are decided by the government, keeping the members under the supervision and control of the appointing authority. ”
Shockingly it is contextual, the Supreme Court of India in a judgment of Sarbananda Sonowal v. Union of India-2005 has placed the burden of proving citizenship on the individual herself. The apex court has also mandated that normally, the contesting person was required to give evidence of (i) date of birth (ii) place of birth (iii) parents name (iv) parents’ place of birth and citizenship. Sometimes the place of birth of grandparents may also be relevant (Section 6-A(1)(d) of the Citizenship Act). It is underscored to the readers that the application of Sonowal judgment with respect to the outcome of NPR process and verification will adversely affect on the claim of citizenship right.
Another contextual issue is the preparation of NRC in Assam. Local inhabitants of Assam were agitating for long against many Bengali speaking labourers who were brought into Assam during the British period and migration during the Bangladesh war of Liberation. The tribal Bodo and other ethnic groups fought against the changing demographic composition. The All Assam Students' Union movement and ensuing negotiations led to a memorandum of settlement dated 15th August 1985 which is commonly know as ‘Assam Accord’. The terms of the Accord provided to detect and deport illegal migrants from Assam and it also contained a clause that “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”. This amendment of the Citizenship Act clearly establishes that determination or detection of a foreigner is to be governed by the provisions of the existing Central legislation viz. the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1964. However, pursuant to rejection of many claims of citizenship, the government statements through the Ministers in Assam intend to invoke the newly passed CAA 2019 to grant citizenship only to non-Muslims. This clearly is not the purposes of CAA-2019 and it has caused national level anguish amongst the Muslims which are not yet dispelled by the Ministry of Home Affairs of the Prime Minister of India.
National Population Register Data Collection
Reverting back to the discussion on NPR, the immediate attention is needed with regards to data sharing during the Census of India – House listing phase which was fixed from April 1, 2020 until the end of September 2020. The census enumerators will (normally) knock on the doors of all households to collect data, for house listing and related questions as enumerated in terms of notification dated 07.01.2020. The home ministry of the GOI had/has also planned to collect another set of data to prepare a ‘National Population Register (NPR)’ during the census house listing visits while both the data processes are completely different and under different legal regime with different purposes and consequential effects. The NPR is the data bank only for the purpose of preparing ‘National Register of Indian Citizens (NRIC)’ as mentioned in the Citizenship Rules - 2003. There cannot be any other purpose of NPR.
But given a very troubling experience of the preparation of NRC in one of the provinces of India i.e. Assam, a cautious approach is warranted by all citizens. The facts relating to Assam are slightly different. In a way, the entire population was first put in the ‘doubtful’ category by putting onus on the individual residents of Assam to prove that they possessed listed documents to become eligible to become part of NRC of Assam. If one failed, subject to the outcome of litigation, one becomes stateless person. With whatever difficulty, a draft National Register of Citizens for Assam is ready. Once the Central Government realized that those who did not make it to NRC were much more Hindu Bengalis in number than the Bengali Muslims, they took stand to reject the draft NRC to which the government had earlier supported and was Supervised by the Supreme Court of India. This way of shifting stand of the Central Government depending upon the religious angle has become the basis for governmental policies. Considering the fate of the exercise in Assam, there are acute grounds to believe that the government will not be fair with the country wide NPR data and the concept of marking individuals as ‘doubtful’ in terms of the 2003 Rules shall become the tool for fiddling with the status of individuals who have been citizens of the country since long. Hence, in a way, the countrywide process can become a serious socially de-establishing factor to a substantive population of India.
The census of India on the other hand has a long history of its conduct, data focus and data collection strategy and use, it has remained a fairly transparent ‘data system’ in the world because of its socio-economic structure of the country. The data concepts, date units, unit of data analysis and procedures are very well defined and understood by all stake holders such as the government system, the academia, the international agencies and corporate sector. The data is collected and protected under law and cannot be used for any other purpose excepting for use in data aggregation needed in national, regional, state and district level development planning. In fact, this data has no evidentiary value. Section 15 of the Census Act specifically states that records of census shall not be open for inspection nor shall be admissible in evidence. In the past, this data has substantially impacted the policy formulation and more importantly budgetary allocations for different welfare schemes of the Central as well as the provincial governments.
Over the years the Census data is used for several policy formulations and multiple sectors such as political, economic, demographic and inter-state planning. For example, the delimitation commission, utilizes census data for demarcation of constituencies and allocation of representation to Parliament, State legislative Assemblies and the local bodies. Census data is liberally used by researchers, demographers, and analysts for understanding the population growth and trends and make population projections. The corporate sector uses the age, sex and economic status data to create their own market structure. More recently, inter- and intra-state migration streams are being used to finalize state specific employment policies favoring 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 ‘SarvaSheekshaAbhayan’ and employment entitlements through the Mahatma Gandhi National Rural Employment Guarantee Schemes.
Whereas, 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 since long who have already been citizens of Indian Nation. This relationship with the nation defines the very existence of a human being with the geography and environment. Citizenship of an individual is a status relatable with the territory of the Nation State and in most cases recognized or conferred through sovereign powers. In all constitutional democracies, citizenship status determines availability of many precious rights of that person against the state and other citizens of the country. This status makes that individual part of the Nation State and only on that basis is an individual entitled to enforce her various rights recognized in that system and can claim benefits from entitlement created by the State to life and living for meaningful existence. In case of the person being noncitizen in a system, she is a stateless person with limited right flowing from the customary natural rights. Yet, 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. The present NPR process in India has potential to put millions of citizens in a ‘doubtful citizen’ category due to lack of contemporary documentary evidences explained in the other part of this paper.
It is instructive to find that all the previous censuses have collected information on place of birth of all the residents of India. For example, below is the data extracted from Census of India 2011 for all those who reported that they were born out of India. Note that overall just about 5.36 million residents reported that they were born in a country out of India such as Pakistan, Bangladesh, Nepal and many more. Since the census data collection was a routine and harmless activity, all these years this data on ‘born outside India’ will contain all those who are legally residing in India as well those who may have residents without proper documentary evidence. USA is a country which is infested with the issues relating to undocumented residents but with comprehensive data base on them; similarly even in India the ‘born out of India’ reporting during the census is likely to be accurate and closer to complete. Only a certain fraction of 5.36 million residents are likely to be illegal who need to be identified for administrative purposes and possible deportation.
Bangladesh with 2.8 million residents reporting their country of birth which is just about one half of all ‘out of India born’ residents; followed by just 0.92 million from Pakistan and 0.81 million from Nepal. While Nepal has ‘open entry and exit’ policy with India for its citizens, the issues relate only to countries such as Bangladesh, Pakistan, and Sri Lanka and so on. These data points to a fact that the issue of illegal migration in India is rather small given a large domestic population of over 1.4 billion. A nationwide exercise to assign citizenship to all those who have been living in India for many decades after the Independence is an unnecessary and expensive public policy.
Census of India 2011 DATA on BORN OUT OF INDIA by State and Country of Birth
Source: Census of India 2011 -
What can be done?
It is proposed to identify about two hundred sensitive districts, out of the present 739 across India and select at least two paid (honorarium) advocates from each district. Such selected advocates can be trained at the state capital. Many legal luminaries and academics with specialization in law are willing to provide nationwide training. Such legal networks already exist in many local areas in many States, but they need to be trained and well linked with a national grid. The locally trained advocates then can cater to all cases of ‘human rights abuse’ as well as issues relating to citizenship and CAA. In this process of legal exercise, an affidavit of the individual can be proposed which the government accepts as sufficient proof in case somebody is considered as 'Doubtful'. This clarity can come only in terms of Amendment in 2003 Rules.
Rules of 2003, as per Rule 3(5), Local Register shall contain the names only after verification is made from the Population Register. After verification process of the data of NPR as per Rule 4(3), based on ‘subjective dissatisfaction’ in terms of Rule 4(4) any individual shall be declared a ‘doubtful’ person and that would lead to adjudication of facts. The facts shall be ascertained based on a specific and simple set of parameters, in keeping with the Constitutional tradition of citizenship being based on 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’.
In the data collection the process of NPR, many documents and their details are referred to and have been made as desirable to submit the details of the following documents, if available:
a.
Aadhar number
b.
Election Photo Identity Card or Voter ID Card Number/Card
c.
Indian Passport Number
d.
Driving License Number
e.
Details of Birth of the person and their parents
Although submission of the details of the above documents is voluntary and 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 inclusion in the NRIC is a matter of subjective satisfaction of the officer examining the data of NRP.
Hence, it is suggested that a list of credible documents, may be 10 to 20, be notified with the ‘doubtful’ in terms of 2003 Rules and shall straightway take him/her to the NRIC. This will substantially reduce the uncertainty in the minds of a large number of population and shall reduce the conflict.
It is puzzling, that under the Indian legal system even a passport issued under the Passport Act 1967 is not a guaranteed document to establish citizenship as a matter of right. Yet, passports issued by the government of India under normal circumstances are issued only to citizens of India - as observed by the Delhi High Court in 1967 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 recognized in foreign countries as a citizen of the country which issued the passport.’
Similarly, even if a person had unchallenged right to vote in electoral process and has been participating in it, even this status does not ensure her name to be included in NRIC without satisfaction of the officer concerned. There is no guideline why somebody’s electoral I-card or passport should be treated as good document for inclusion in NRIC and on the other hand some other person’s or class of person’s passport and voter I- Card will not carry the same legal evidence to ensure their entry into NRIC.
Citizenship Rules-2003 gave that scope where a passport or voter I-card of one person may be considered as good evidence (without taking it on record) for taking an individual’s name in NRIC but the document, despite taking them on record may still not guarantee another person’s undoubted citizenship status and she is put under the ‘doubtful’ category.
Conclusions
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 UK, 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 is paramount requires a very 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, a sizeable religious minority in the Country.
The way forward can only be a simple, concrete, and unambiguous set of parameters that will let a bonafide citizen, marked doubtful under the 2003 Rules, to challenge and set right the improper declaration as doubtful. The sheer complexity of the diverse demography of India requires that minimum facts ought to be needed to be proved. The more that will have to be established will lead to more fear and confusion amongst ‘doubtful’ individuals and their families and resultantly among the minority communities. It will also result in arbitrariness and bias on the part of adjudicating authorities and will result in obvious miscarriages of justice that will clog up the judicial system for years to come, all the while burdening the national exchequer with the cost of maintaining the infrastructure of detention centers and tribunals and their staff. Thus, in conclusion the following steps need to be undertaken to de-escalate the situation and ensure the satisfaction of all stakeholders.
If the 2003 Rules are not omitted or declared ultra vires by the Supreme Court of India, in that situation the government need to:
1.
Ensure the modification of the 2003 Rules to include a simple procedure through which one must disprove doubtful entry, by providing appropriate documents. The current provision to consider oral adverse community testimony to dislodge the citizenship must be abolished.
To put it differently, the adversarial provisions in the 2003 Rules with respect to the process of NPR/NRIC should not be allowed to remain on the statute book and the same be replaced by community based supportive provisions in the process of undertaking this mammoth exercise.
2.
Establish a nationwide grid of legal practitioners, attorneys and para legal mechanism to assist and represent individuals marked as doubtful; supported by a robust website and social connect.
3.
Set up civilian oversight Committees for the Detention Centers to ensure provisioning of basic amenities and non-violation of human rights.
In the absence of the above safeguards, the NPR/NRIC exercise based on the 2003 Rules will lead to unsurmountable incongruity accentuating the already tense and exclusionary tendencies to alter the social fabric of contemporary India. Furthermore, these shortsighted but intentional legal provisions are amenable to 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 massive civilians subjecting them to inefficient, slow and expensive legal process, which is already under stress. It is our view that without immediate positive, objective and well researched interventions, India is bound to create one of the largest and severest human tragedies the civilized world has ever seen in living memory.
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