Since the Independence of India, until 2019, Indian citizenship law has been ‘region’ and ‘religion’ neutral. The Constituent Assembly debated the citizenship related issues before giving final shape of the provisions in the Constitution of India which came into force in 1950. Later, a Central Legislation ‘the Citizenship Act 1955 (Act of 1955)’ was enacted and also amended several times incorporating additional measures, regulating the grant of citizenship. Citizenship Amendment Act (CAA) -2019 is a recent enactment; and for the first time it enables granting Citizenship to an individual on the basis of one’s earlier area of residence (country of origin) and their ‘Religion’ at the time of grant of citizenship by India.
The concept, definition and application of ‘Citizenship’ is taking a transformative shift during 2019-20 towards disenfranchising and public exclusion of millions of usual residents of India. It is just over a year since the 17th general elections enabled the NDA government formation, subsequent to which the union home ministry is working overdrive to prepare 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 dominantly due to non-availability of documentary proof of birth, death, marriage, domicile and so on. Although the public policy statements suggest ‘no documentary evidence is necessary’, the conduct of data collection can occur only through review and factual checks 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 due to Covid-19 pandemic. The pandemic itself has shockingly caused misery to millions of migrant labourers and poor income holders all over India. Momentarily, however, the pandemic exposure has forced the Union government to postpone and reschedule its NPR data gathering and preparation of NRIC listings. It is expected, however, that after the impact of Covid-19 gets normalized, the ugly heads of the NPR and NRIC along with CAA-2019 would gain grounds in public policy and administrative implementations. It is the authors’ assertion that despite all the aggressive compelling by the government to manipulate the present legal provisions launch, NPR data collection and preparation of the NRIC should never be a national priority, ever.
It is, however, disturbing to find that Union’s decision to execute and update the NPR process jointly with the tangential use of CAA-2019 has led to serious internal conflict in the entire country, especially between religious groups. The CAA-2019, although meant to address unsettled international migration issues, can generate manipulative and exclusionary impact on many citizens. The CAA-2019 is highly discriminatory, especially towards the Muslims - the largest of the minorities in India. The central government considers joint execution of NPR-led NRIC and CAA-2019 as an insurance against high electoral gains during the state elections in West Bengal, which are due next year.
Not only is the Indian civil society aggrieved but the UN Human Rights also shares similar understanding. In an application to the Supreme Court of India, the UN High Commissioner of Human Rights has 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 (NPR) – Evolving routine administrative procedure creating million of non-citizens:
The 2003 amendment of the Citizenship Act of 1955 introduced ‘Section 14A’ with an aim to create the National Register of Indian Citizen (NRIC). A set of Rules called ‘The Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules-2003’ [2003 Rules] provided for NPR, based on data collected from all residents of India so that the NRIC is prepared. The Ministry of Home Affairs and the office of Census of India 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 (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, 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. 2003 Rules empowers the functionaries and local registrars to assign or remark ‘doubtful citizen’ or mark ‘D’ in the NPR to those who may fail to provide certain documents or fail to convince the investigator that she is a citizen [Rules 2(l), 3 (1-4), 4(1-4) of 2003 Rules]. 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; but such statements are in conflict with these Rules 2003, which are legally mandated. Hitherto, it was the task of the government to identify a non-citizen if any; but the effect of 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 Assam NRIC, in the Sarbnanda Sonowal case (2005), even the Supreme Court of India has placed the onus of proving citizenship on the concerned individual. This will generate serious disorder in the entire process of identification of citizenship in a country with massive population of close to 1.4 billion. This overreach into a citizen’s privacy coupled with the exclusionary nature of the CAA- 2019, is a cause of major concern.
The Context and Challenges:
The historical and global 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. Religious overtones are the hallmark of the general elections that selects a national government and all state level elections empowers a political dispensation for a period of five years each; yet they have become aggressive since last couple of decades. The ‘radical Hindutva politics’ is increasingly used to elevate electoral pitch to grab political power that has led 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 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 is already in circadian play. There are many anti-low caste and anti-poor tendencies in formulations and execution of laws during recent times. CAA-2019 is the most recent institutional and legal tool to create turmoil, confusion and even violence in a manner that creates jubilation of the majoritarianism politics. It is pertinent to quote Dr Rajiv Dhavan, a senior lawyer of repute, “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, representation of Muslims in all democratic institutions, the parliament, law enforcement agencies is abysmally low. Even the Prime Minister of India incorrectly targets Muslims in public speeches; for example, a famous public announcement of his was to state that protestors of CAA-2019 ‘can be identified by the clothes they wear’.
Although, there are safeguards such as choosing the ‘judicial process’, the CAA-2019 procedures are complicated, slow, almost never ending and often reaching a resolution in one’s lifetime is not possible. 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, a myriad of referrals and aggravated redtapism.
Past-Experience of Assam and the Assam Accord
The ongoing yet troubling experience of the preparation of NRIC 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 marked as ‘doubtful’ category 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 win their eligibility of being listed in the Assam NRC. Failing which and subject to the outcome of cumbersome and expensive litigation, one would become a stateless person. Yet, under the supervision of the Supreme Court of India, a draft National Register of Citizens for Assam is ready in 2019. But once it was realized that more number and proportion who did not make it to Assam-NRC were Bengali-Hindus the National government took a political stand to reject the draft NRC, notwithstanding the legal supervision provided even by the Supreme Court of India. This specific shifting stand of the Central Government is anchored entirely on the religious angle and has become a routine in the national governmental policies.
Geographically, Assam state shares an international border with Bangladesh since its creation in 1971 and even earlier. The local Assamese inhabitants have been vocal about the changing demographic dispensation in the state mostly due to the in-migrants who fled to save their lives during the war of Bangladesh Liberation. As a result of such movement led by the students' and ensuing negotiations, a tripartite memorandum of settlement – the ‘Assam Accord’ was signed on 15th August 1985 amongst the All Assam Students' Union, 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 national government give credence to the discriminatory factor that it is the 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 social, cultural, and linguistic identity of the Assamese. This can be inferred because various Assam groups have also filed Writ Petitions challenging the validity of CAA-2019 in determining the citizenship which brings in the religious discrimination in to play.
It is, therefore, commonly believed and the author’s assertion that the national government will play similar discriminatory practices while conducting nationwide NPR data collection and preparation of NRIC all over India. The concept of marking individuals as ‘doubtful’ and legal provision of the 2003 Rules will become the tool for fiddling with the status of individuals who have been citizens of the country since long. Thus, the NPR and NRIC exercise will become a countrywide socially de-establishing and a national calamity.
Essentiality of the Census in India
It is useful to understand the collection, collation and utilization 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’ in the world because it helps 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 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 except 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 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 in 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 thus 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 ‘Sarva Sheeksha Abhayan’ and employment entitlements through the Mahatma Gandhi National Rural Employment Guarantee 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 since long who have already been citizens of the Indian Nation. 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 case of the person being noncitizen in a system, she is a stateless person with limited rights 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.
Modification/amendments in the 2003 Rules
It is important to note that the ‘Rules of 2003’ under its Rule 3(5) 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 be declared a ‘doubtful’ person. This subjectivity element in branding a citizen as doubtful would lead to adjudication of facts. The facts shall, in authors’ view, be ascertained based on specific and simple set of parameters 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 Aadhar number, Election Photo Identity Card or Voter ID Card Number, Indian Passport Number, Driving License Number, Details of Birth of the person and their parents and so on. Although 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, her inclusion in the NRIC is still a matter of subjective satisfaction of the officer examining the data of NRP. Therefore, the entire NPR exercise is arbitrary. The local Registrar, who has duty to collate the NPR data, is not accountable in case he acts unreasonably and shows malice while determining such a serious 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 rank 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 recognized in foreign countries as a citizen of the country which issued the passport.’. Hence why a passport should not be a guarantee for not being 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 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 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 which a bonafide citizen can easily produce even when marked doubtful under the 2003 Rules and challenge the improper declaration as a matter of right. These parameters, in keeping with Constitutional traditions, will be the matrix of facts to prove their birth, residence, place of education, owner 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 it has 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 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. Amongst this, the provision of inviting objection from general public while determining the issue will further create 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 prevailing tense and exclusionary tendencies to alter the social fabric of contemporary India. Many of these shortsighted but intentional legal provisions are amenable to large amounts of 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. The authors consider 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.
The concept, definition and application of ‘Citizenship’ is taking a transformative shift during 2019-20 towards disenfranchising and public exclusion of millions of usual residents of India. It is just over a year since the 17th general elections enabled the NDA government formation, subsequent to which the union home ministry is working overdrive to prepare 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 dominantly due to non-availability of documentary proof of birth, death, marriage, domicile and so on. Although the public policy statements suggest ‘no documentary evidence is necessary’, the conduct of data collection can occur only through review and factual checks 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 due to Covid-19 pandemic. The pandemic itself has shockingly caused misery to millions of migrant labourers and poor income holders all over India. Momentarily, however, the pandemic exposure has forced the Union government to postpone and reschedule its NPR data gathering and preparation of NRIC listings. It is expected, however, that after the impact of Covid-19 gets normalized, the ugly heads of the NPR and NRIC along with CAA-2019 would gain grounds in public policy and administrative implementations. It is the authors’ assertion that despite all the aggressive compelling by the government to manipulate the present legal provisions launch, NPR data collection and preparation of the NRIC should never be a national priority, ever.
It is, however, disturbing to find that Union’s decision to execute and update the NPR process jointly with the tangential use of CAA-2019 has led to serious internal conflict in the entire country, especially between religious groups. The CAA-2019, although meant to address unsettled international migration issues, can generate manipulative and exclusionary impact on many citizens. The CAA-2019 is highly discriminatory, especially towards the Muslims - the largest of the minorities in India. The central government considers joint execution of NPR-led NRIC and CAA-2019 as an insurance against high electoral gains during the state elections in West Bengal, which are due next year.
Not only is the Indian civil society aggrieved but the UN Human Rights also shares similar understanding. In an application to the Supreme Court of India, the UN High Commissioner of Human Rights has 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 (NPR) – Evolving routine administrative procedure creating million of non-citizens:
The 2003 amendment of the Citizenship Act of 1955 introduced ‘Section 14A’ with an aim to create the National Register of Indian Citizen (NRIC). A set of Rules called ‘The Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules-2003’ [2003 Rules] provided for NPR, based on data collected from all residents of India so that the NRIC is prepared. The Ministry of Home Affairs and the office of Census of India 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 (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, 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. 2003 Rules empowers the functionaries and local registrars to assign or remark ‘doubtful citizen’ or mark ‘D’ in the NPR to those who may fail to provide certain documents or fail to convince the investigator that she is a citizen [Rules 2(l), 3 (1-4), 4(1-4) of 2003 Rules]. 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; but such statements are in conflict with these Rules 2003, which are legally mandated. Hitherto, it was the task of the government to identify a non-citizen if any; but the effect of 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 Assam NRIC, in the Sarbnanda Sonowal case (2005), even the Supreme Court of India has placed the onus of proving citizenship on the concerned individual. This will generate serious disorder in the entire process of identification of citizenship in a country with massive population of close to 1.4 billion. This overreach into a citizen’s privacy coupled with the exclusionary nature of the CAA- 2019, is a cause of major concern.
The Context and Challenges:
The historical and global 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. Religious overtones are the hallmark of the general elections that selects a national government and all state level elections empowers a political dispensation for a period of five years each; yet they have become aggressive since last couple of decades. The ‘radical Hindutva politics’ is increasingly used to elevate electoral pitch to grab political power that has led 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 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 is already in circadian play. There are many anti-low caste and anti-poor tendencies in formulations and execution of laws during recent times. CAA-2019 is the most recent institutional and legal tool to create turmoil, confusion and even violence in a manner that creates jubilation of the majoritarianism politics. It is pertinent to quote Dr Rajiv Dhavan, a senior lawyer of repute, “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, representation of Muslims in all democratic institutions, the parliament, law enforcement agencies is abysmally low. Even the Prime Minister of India incorrectly targets Muslims in public speeches; for example, a famous public announcement of his was to state that protestors of CAA-2019 ‘can be identified by the clothes they wear’.
Although, there are safeguards such as choosing the ‘judicial process’, the CAA-2019 procedures are complicated, slow, almost never ending and often reaching a resolution in one’s lifetime is not possible. 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, a myriad of referrals and aggravated redtapism.
Past-Experience of Assam and the Assam Accord
The ongoing yet troubling experience of the preparation of NRIC 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 marked as ‘doubtful’ category 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 win their eligibility of being listed in the Assam NRC. Failing which and subject to the outcome of cumbersome and expensive litigation, one would become a stateless person. Yet, under the supervision of the Supreme Court of India, a draft National Register of Citizens for Assam is ready in 2019. But once it was realized that more number and proportion who did not make it to Assam-NRC were Bengali-Hindus the National government took a political stand to reject the draft NRC, notwithstanding the legal supervision provided even by the Supreme Court of India. This specific shifting stand of the Central Government is anchored entirely on the religious angle and has become a routine in the national governmental policies.
Geographically, Assam state shares an international border with Bangladesh since its creation in 1971 and even earlier. The local Assamese inhabitants have been vocal about the changing demographic dispensation in the state mostly due to the in-migrants who fled to save their lives during the war of Bangladesh Liberation. As a result of such movement led by the students' and ensuing negotiations, a tripartite memorandum of settlement – the ‘Assam Accord’ was signed on 15th August 1985 amongst the All Assam Students' Union, 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 national government give credence to the discriminatory factor that it is the 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 social, cultural, and linguistic identity of the Assamese. This can be inferred because various Assam groups have also filed Writ Petitions challenging the validity of CAA-2019 in determining the citizenship which brings in the religious discrimination in to play.
It is, therefore, commonly believed and the author’s assertion that the national government will play similar discriminatory practices while conducting nationwide NPR data collection and preparation of NRIC all over India. The concept of marking individuals as ‘doubtful’ and legal provision of the 2003 Rules will become the tool for fiddling with the status of individuals who have been citizens of the country since long. Thus, the NPR and NRIC exercise will become a countrywide socially de-establishing and a national calamity.
Essentiality of the Census in India
It is useful to understand the collection, collation and utilization 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’ in the world because it helps 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 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 except 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 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 in 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 thus 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 ‘Sarva Sheeksha Abhayan’ and employment entitlements through the Mahatma Gandhi National Rural Employment Guarantee 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 since long who have already been citizens of the Indian Nation. 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 case of the person being noncitizen in a system, she is a stateless person with limited rights 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.
Modification/amendments in the 2003 Rules
It is important to note that the ‘Rules of 2003’ under its Rule 3(5) 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 be declared a ‘doubtful’ person. This subjectivity element in branding a citizen as doubtful would lead to adjudication of facts. The facts shall, in authors’ view, be ascertained based on specific and simple set of parameters 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 Aadhar number, Election Photo Identity Card or Voter ID Card Number, Indian Passport Number, Driving License Number, Details of Birth of the person and their parents and so on. Although 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, her inclusion in the NRIC is still a matter of subjective satisfaction of the officer examining the data of NRP. Therefore, the entire NPR exercise is arbitrary. The local Registrar, who has duty to collate the NPR data, is not accountable in case he acts unreasonably and shows malice while determining such a serious 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 rank 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 recognized in foreign countries as a citizen of the country which issued the passport.’. Hence why a passport should not be a guarantee for not being 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 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 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 which a bonafide citizen can easily produce even when marked doubtful under the 2003 Rules and challenge the improper declaration as a matter of right. These parameters, in keeping with Constitutional traditions, will be the matrix of facts to prove their birth, residence, place of education, owner 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 it has 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 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. Amongst this, the provision of inviting objection from general public while determining the issue will further create 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 prevailing tense and exclusionary tendencies to alter the social fabric of contemporary India. Many of these shortsighted but intentional legal provisions are amenable to large amounts of 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. The authors consider 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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