What, in this context, we have to keep in mind is the following.
AA. The CAA, in the very briefest, is arbitrary and discriminatory.
Sends out the toxic message that Muslims just do not belong.
In flagrant violation of the very essence of the Indian Constitution.
BB. The NPR is the first, and arguably the most crucial, stage of the NRC.
The lists of doubtful citizens would be prepared based on the data collected (and not collected) via the NPR.
CC. Those on the list will then be served with notices, under the NRC provisions, to “prove” their citizenship in terms of (difficult to produce) “documents” – not yet specified.
Left to the regime, it will never be specified and the whole business of “determination” will be left to the “discretion” of the concerned government officials.
DD. Apart from other, way more, serious consequences – (i) stripping too many of their citizenship and, thereby, turn them “stateless” and (ii) install an elaborate infrastructure for a surveillance state, it’ll also open the floodgates for an extortion regime.
EE. While Muslims are specifically targeted, non-Muslims will not remain unscathed.
If the Assam experience is any indicator.
(As per one report, out of 19 lakh filtered out – via the NRC, 12 lakh are Hindus, 6 lakh Muslims and 1 lakh indigenous tribals.)
The CAA would be of any help only to too few, if at all, outside of the North-East and West Bengal.
FF. So, the only option is to resist the NPR – in as many ways as possible.
And it has got to be collective resistance.“The CAA is a completely unconstitutional amendment and should be scrapped. The NPR and NRC, apart from being a colossal waste of money, will also lead to an unprecedented nationwide tragedy, disenfranchising crores of people and rendering them stateless and without rights. It will also go a long way in profiling the population, and especially with the present political dispensation, this will lead to communal and caste-based targeting. This will also advance further the agenda of the dispensation to complete the transition to a surveillance state. While Muslims, undoubtedly, will be targeted, the NRC and NPR will not omit from its sweep the Dalits, tribals, the poor and the marginalised from other communities.”(Excerpted from the article reproduced belo
Mihir Desai ([email protected]) is a senior advocate practising in the Bombay High Court.
The Citizenship (Amendment) Act, 2019 is unconstitutional for its discriminatory and arbitrary provisions. The linked exercises of the National Population Register and the National Register of Citizens threaten to disenfranchise crores of people, rendering them stateless and without rights. The combination ofCAA withNPR–NRC would produce consequences that are detrimental to the stable and harmonious functioning of our society and policy.
The spontaneity, breadth, youthful energy and social composition of the protests against the Citizenship (Amendment) Act (CAA), National Population Register (NPR) and the National Register of Citizens (NRC) are unprecedented, at least in my living memory. In some states, there has been a brutal repression of these protests, but despite this the protests have continued. Those in support of these orders (the CAA is in fact now a law) have mainly argued along the following lines: First, that the CAA will not affect Indian Muslims since it is about giving citizenship and not about taking it away. Second, that no decision has been taken about the NRC. Third, the NPR has nothing to do with the NRC. Fourth, even if an NRC is carried out, Indian citizens will not be affected.
My basic argument in this article will be that the CAA is unconstitutional. Even if the amendment is held to be constitutional, the protests are justified and should continue. If the CAA is held by the Supreme Court to be unconstitutional, the NPR and NRC should still be objected to, since they are exercises that will be extremely detrimental especially to the poor and the marginalised.
The CAA widens and expands the pool of persons who can claim to be citizens of India. The NPR and NRC provide the data and procedure for determining the finalised list of citizens of India. Those not in this list will be treated as foreigners or stateless persons without substantial rights. While presently all three of these orders are linked, even independent of each other, they are dangerous and need to be opposed.
On paper, there seems nothing wrong with granting citizenship to persecuted groups, or with having a register of citizens. But, when one looks deeper into the matter, calamitous consequences can be discerned. To realise their true import, it is important to unfurl the impact this will have on the Constitution and on the lives of millions of ordinary people.
But before I deal with the three controversial orders in detail presently, it is necessary to place them in a historical context.
Concept of Citizenship
Citizenship as a concept is not the contribution of modernity. Aristotle wrote about it and so did many others later on. But, the earlier concepts suffered from certain limitations, which are sought to be done away in present times. First, the earlier concept of citizenship had much more to do with duties of individuals towards the monarch or the state rather than rights of individuals vis-à-vis the state. Second, even when they spoke of rights, it was a highly restrictive citizenry, which did not include slaves, women, uneducated persons and other non-propertied classes. Third, the concept dealt with just a few civic and political rights rather than the breadth of rights now recognised, while socio-economic rights were invariably excluded. Essentially, the people were subjects rather than rights-bearing citizens. As Niraja Jayal (2013) has said
Important as it is, the legal status of citizenship is in itself vacuous and connotes nothing. It is the threshold condition for the enjoyment of rights and entitlements from which it derives meaning and significance.
The problem is that if one does not cross this threshold, rights would become a mirage, and thus, citizenship in present times becomes crucial for enforcement of rights or even access to welfare schemes. Presently, loosely speaking, citizenship means individuals who are treated equally before the law within a confined territory and who have civil, political, social and economic rights. To what extent these rights would be available varies from country to country. Of course, in today’s neo-liberal times, there is a major attack on this concept of citizenship on the specious ground that giving rights to individuals makes them lazy and complacent, and what is required to be emphasised are their duties.
In India, rights-bearing citizenship crystallised only from the time of the enactment of the Constitution. Some kind of rudimentary form of citizenship did develop even earlier. Since the beginning of the 20th century, a limited franchise was available. Under the Government of India Act, 1919, this was partially extended. This was further extended under the Government of India Act, 1935. But, even the extended franchise had educational, income and property ownership conditionalities, and not more than one-sixth of the adult population could vote. The powers given to these legislative bodies were very limited, and there was no concept of rights—fundamental or otherwise—under these acts. While residents were not totally without rights—for instance, the entire Indian Penal Code (IPC), which came into existence in 1860, is a witness to the existence of these rights—even these rights were between individuals and were coupled with a large section of the IPC dealing with violations concerning ascribed responsibilities towards the government and its officers. The provisions concerning charges of “sedition” and “waging war” against the government are examples of this.
Most of the colonialists believed that India was not even potentially a nation, since according to them, such a society, divided on caste, linguistic and religious lines could not yield a conception of citizenship as citizenship was an individual concept while in Indian society, individuals were always mediated through families, castes, clans, tribes, communities, etc. As Jayal (2013) points out, the colonial view was that
as an insufficiently individuated social order divided by language, caste and religion, Indian society could scarcely yield a conception of citizenship, much less individuals who could be citizens.
Even when they spoke of citizenship in the context of India, it was mainly in terms of obedience to the British rule and the justification for this.
Territoriality is a precondition for citizenship, and once India was to be independent and decided to go in for the republican form of government, it became essential for the Constitution to deal with citizenship.
The Constitutional Provisions
During the Constituent Assembly debates, citizenship was one of the most debated subjects, especially due to the partition causing territorial change in erstwhile India as well as unprecedented migration and communal violence. It was decided that the Constitution will deal with the grant of citizenship at the commencement of the Constitution, and, for the future, Parliament was to be given the power to enact the law.
At the time of the commencement of the Constitution, all those who were (i) born in the territory of India, or (ii) one of whose parents was born in the territory of India, or (iii) who was an ordinary resident in the territory of India for five years prior to 26 January 1950, would be citizens. The territory of India was defined as it existed at the time of the commencement of the Constitution and not as that of the earlier undivided India.1 Thus, birth in India was good enough and even ordinary residence for five years was good enough.
The major issue was of migrants from Pakistan. The Constitution provided that a person who has migrated to India prior to 19 July 1948 will automatically be entitled to Indian citizenship, and those who migrated after that date but before 26 January 1950 will also be given citizenship if that person is already registered as a citizen by an officer appointed by the government. This was subject to the person, or his parents or grandparents being born in undivided India.
In an intervention, Jawaharlal Nehru in the Constituent Assembly on 12 August 1949 stated:
Now, I think there is a great deal of misunderstanding about this matter. Our general rule as you will see in regard to these Partition consequences, is that we accept practically without demur or enquiry that great wave of migration which came from Pakistan to India. We accept them as citizens up to some time in July 1948. It is possible, of course that in the course of that year many wrong persons came over, whom we might not accept as citizens if we examine each one of them; but it is impossible to examine hundreds of thousands of such cases and we accept the whole lot. After July 1948, that is, about a year ago, we put in some kind of enquiry and a magistrate who normally has prima facie evidence will register them; otherwise he will enquire further and ultimately not register or he will reject. Now all these rules naturally apply to Hindus, Muslims and Sikhs or Christians or anybody else. You cannot have rules for Hindus, for Muslims or for Christians only.2
One of the hotly debated issues was of persons (Muslims primarily) who left India and went to Pakistan at the time of partition, but returned. It was argued that once people had gone to Pakistan at the time of partition, they should not be allowed to return. But, this objection was overruled with B R Ambedkar, Nehru, and even Vallabhbhai Patel wanting to allow such persons to get Indian citizenship. Finally, it was agreed that while all those who had migrated to Pakistan after 1 March 1947 will not get Indian citizenship, those who returned to India with a permit of permanent resettlement or permanent return under any law would get Indian citizenship. This allowed large numbers of Muslims who, either due to violence, or fear of violence, had initially migrated to Pakistan, but later returned to India to get citizenship.3
Despite the backdrop of partition and the communal violence which was unleashed and despite Pakistan having been created along communal lines, the Indian Constitution at no stage makes reference to religion as a criterion for citizenship. Essentially, at the time of the coming into effect of the Constitution, the criterion for citizenship status was birth within present-day India and those who migrated to India during partition and were born in undivided India.
The Citizenship Act, 1955
Parliament passed the Citizenship Act in 1955 for dealing with post-26 January 1950 citizenship claims. This is the act that continues to be operative even now. The controversial amendment is to this act, and the NRC rules are also made under this act. A brief overview of this law is necessary.
This Citizenship Act provides for five methods of acquiring citizenship. The primary method is by birth. If you are born in India, you are a citizen of India. This has undergone some changes later on, which we will discuss subsequently. Second, is by descent, that is, broadly, for Indians born outside India if the child’s father was a citizen of India and after 10 December 1992 if either of the parents were citizens of India at the time of birth. Essentially, this grants citizenship to children born outside India to Indian citizens. Third, is by registration. This is for persons of Indian origin, but not having Indian citizenship, and for those non-citizens married to Indian citizens who stay in India for a certain number of years. Fourth, is by naturalisation. Earlier, three categories have citizenship conferred on persons because of their being “Indian”—those born here, those married to Indians, and those non-citizens of Indian origin who want to acquire Indian citizenship. There are various conditionalities attached to this, but by and large, you need to be a resident of India for 11 years and willing to renounce citizenship elsewhere. The last category is for people who are residing in India at the time of the incorporation of their territory into India, for instance, Goa or Sikkim. Rules were framed under the act in 1955 itself, which have since been replaced by the 2009 rules.
While it is possible for the government to terminate or deprive a person of their citizenship, this can only be done under certain conditions to those acquiring citizenship by registration or naturalisation. The only way that a person who gets citizenship by birth can be deprived of their citizenship is if they voluntarily renounce their citizenship or voluntarily acquire citizenship of another country. Otherwise, a person who acquires citizenship by birth can under no circumstances be deprived of their citizenship.4
However, neither the Citizenship Act nor the rules provide the documentation required for proving citizenship by birth. The act also did not provide for a citizenship register or national population study.
In the 1980s, major changes were brought about by the Congress government in the act concerning citizenship by birth and a sixth way of acquiring citizenship was added. This was against the backdrop of the Assam agitation. Prior to the amendment, it was enough to be born in India after 26 January 1950 to be a citizen. By the amendment of 1987 to the act, it was now provided that for those born in India before 1July 1987 citizenship would still be by birth, but for those born on or after 1 July 1987 it was not enough that you were born in India to be a citizen, but at the time of your birth one of your parents also had to be a citizen of India. In short, for those born after 1 July 1987 in order to prove citizenship, it was not enough to prove your own birth status but also to prove that at least one of your parents was a citizen of India at the time of your birth.
The other major change was in respect of Assam. Due to the agitation, an accord was signed which was given effect to by incorporating on 7 December 1985, Section 6A to the Citizenship Act. Under this, those who entered Assam from Bangladesh before 1 January 1966 and who continue to reside in Assam will be deemed to be Indian citizens. Those who came in between 1January 1966 and 25March 1971 will get citizenship after 10 years if that person registers with the authorities; and those who have come from Bangladesh after 25 March 1971 into Assam will not be entitled to citizenship. This did not make any religion-based distinction.
The next major change happened in 2003–04 during the National Democratic Alliance (NDA) government. For those who were born in India after 30 December 2004 citizenship would be granted only if one of the parents was an Indian citizen at the time of the child’s birth (as it was already prescribed under the 1987 amendment), and added under an amendment in 2014 a new condition that the second parent must not be an illegal immigrant. This means that if a child is born to an Indian father who marries a Bangladeshi woman who has illegally entered India, such a child would not be entitled to Indian citizenship. A child born after 30 December 2004 in India will thus have to prove not only that they are born in India but also that one of their parents is an Indian citizen and that the other parent is not an illegal immigrant.
This amendment defined an illegal migrant as a person who entered India without proper travel documents or entered India with proper travel documents but overstayed without permission. Ordinarily, such an illegal migrant could have applied for citizenship by registration or naturalisation by staying for certain number of years in India. But, the 2003 amendment also provided that such a migrant cannot apply at all for Indian citizenship either by registration or naturalisation. Thus if a Bangladeshi crossed the border and came into India, they will not be entitled to Indian citizenship ever even if they get married here to an Indian citizen, stay for 60 years and have children in India. Even such children would now not ever be entitled to Indian citizenship. This is totally contrary to the Child Rights Convention which India ratified in 1992 which requires a child to acquire nationality right from birth.5
This is the aspect that is impacted by the CAA, 2019. There are certain other developments which happened in 2003–04 but we will deal with them subsequently.
Citizenship (Amendment) Act, 2019
This controversial amendment changes the 2003–04 embargo concerning citizenship rights for illegal migrants. Remember, as per the 2004 amendment an illegal migrant cannot get Indian citizenship under any condition. Obviously not by birth, but not even by naturalisation or registration. What the 2019 amendment says is that if such an illegal migrant has come into India from Bangladesh, Pakistan or Afghanistan, prior to 31 December 2014 and if such a migrant belong to Hindu, Christian, Sikh, Buddhist, Parsi or Jain communities they will be entitled to citizenship by naturalisation if they have stayed in India for five years. Thus, all such persons would be entitled to citizenship by 1 January 2020.
Undoubtedly, there can be no grievances against persons from other countries who have crossed over being granted protection. Ordinarily, this is done not through granting citizenship, but by granting the refugee status through long-term visas and other permits. This is how Tibetan refugees and Tamil refugees from Sri Lanka, amongst others, were granted protection. It is also agreeable if what is now being done to grant citizenship is done in a neutral and non-discriminatory manner. It would be unobjectionable if the state decided to conduct a study, chart out groups or individuals persecuted for various reasons, such as religion, social exclusion, political beliefs, etc, from all bordering countries and decide to grant citizenship to such persecuted persons. What the CAA does is, for the first time, make religion, and that too only certain groups, a ground for granting or rejecting citizenship. This was not done when the Constitution was framed, nor under the Citizenship Act, nor in its earlier amendments, nor even at the time of the Assam Accord.
This is in clear violation of the secular nature of the Constitution—which is held by the Supreme Court to be part of the basic structure of the Constitution—and also violates the fundamental rights guaranteed under the Constitution. Unlike some of the other fundamental rights, Article 14, which speaks of equality of law and equal protection of laws, is applicable even to non-citizens, that is, foreigners. The Supreme Court has, time and again, said that this provision is designed to prevent discrimination. However, Article 14 does not prevent classification, if such classification is based on legal and relevant considerations. Every classification in order to be legal, valid and permissible must fulfil the twin test, that is, (i) the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out from the group; and (ii) such differentia must have a rational relation to the object sought to be achieved by the legislation in question. Both these tests have to be satisfied simultaneously. The Supreme Court has also laid down an additional test, namely if the provisions of a legislation are arbitrary, then irrespective of classification, it can be struck down.
Discriminatory and Arbitrary
Let us see whether the CAA passes muster. There is no doubt that there is differentia being created at three levels. First, in terms of the countries, that is, it is applicable only to migrants from Pakistan, Afghanistan and Bangladesh. Second, it is in terms of religious vis-à-vis other types of persecution. Third, even within religious communities, it deals only with the six named religious groups.
In terms of countries, there is no logic or reason why only illegal migrants from three countries have been picked up. Partition cannot be a reason as Afghanistan was not part of undivided India at the time of partition. Illegal migrants have come into India from other countries also. These include lakhs of persecuted Tamils who have come from Sri Lanka, at least 40,000 persecuted Rohingyas from Myanmar, persecuted Tibetan refugees from China, large numbers of Chakmas who have come in from Bangladesh (some of whom are Muslims and most Buddhists). Rohingyas have been prima facie held to be persecuted even by the International Court of Justice. There is no reason why illegal migrants who are given protection are only from these three countries. For instance, there seems to be a deliberate omission of Tamils from Sri Lanka because that would indicate that a Buddhist majority country is also capable of religious persecution, which then not only applies to Myanmar, but also, by its logic, means there is no reason why a Hindu majority (or Christian or Jewish majority) country cannot be guilty of the same to its religious minorities.
Second, it is not clear why only persecuted communities from religious groups have been included. Even according to the Refugee Convention, 1951 and Refugee Protocol, 1967, those requiring refugee status include not just persecuted religious groups, but also those persecuted due to race, nationality, membership of a social group or for their political opinion. While India is not a signatory to either the convention or the protocol, if classification is required to be made on the basis of persecution, all these categories of persons should have been included. These would include, for instance, atheists in three of these countries, those charged with blasphemy, Shias, persons belonging to the LGBTQ+ (lesbian, gay, bisexual, transgender, and queer) community, etc. There are also certain tribal groups who have been forced to come into
India from neighbouring countries and require protection.
Third, there is no justification why only six religious communities are included. For instance, in Pakistan in 1974, Ahmadis were constitutionally declared as a non-Muslim minority, and by an Ordinance in 1984, it was made a criminal offence for Ahmadis to refer to themselves as Muslims, to their religion as Islam and to publicly practise Islam. Similarly, Shias in Pakistan have been facing a large number of problems; more so the Hazara Shias who can be distinguished by their language and ethnicity. A report by the Human Rights Watch states that more than 500 Shia Hazaras have been killed since 2008. According to another report, by the United States Commission on International Religious Freedom, around 600 Shias were killed between 1999 and 2003 as a result of extremist violence, and approximately 500 Shia doctors fled the country as a result of the assassination of more than 50 of their colleagues in Karachi alone. In October 2015, United Nations General Secretary Ban Ki-moon urged the Pakistan government to protect its citizens, including Shia Muslims. In Afghanistan, a fatwa issued in 2007 declared practitioners of Baha’i faith as a blasphemous deviation from Islam. The Hazaras, even in Afghanistan, have been persecuted for centuries. Nearly half of them were killed way back in the 1890s, and the Taliban declares that killing Hazaras is everyone’s duty. Many of these persecuted persons have crossed over into India and are illegally residing here.
Look at it from any angle. The CAA has no intelligible differentia. The CAA is also bad in law because it is arbitrary. There is no rationale behind this pick and choose. One may not be able to dispute that the included groups have been persecuted or they had fear of persecution. But, citizenship is an individual and not a group matter. So, each individual would have to prove that they were persecuted or had genuine fear of persecution at the time they entered India.
There is some confusion concerning whether persecution is at all mentioned in the amending act. Whilst the Bharatiya Janata Party’s game plan has been clear since the Vajpayee government, the precursor to the present amendment are the amendments carried out in 2015 and 2016 to the Passport (Entry into India) Rules, 1950 and Foreigners Order, 1948. The Passport (Entry into India) Rules provide that anyone who enters into India without proper travel documents can be prosecuted and expelled from India. Foreigners Order, 1948 (which was passed under the Foreigners Act, 1946) also provides for similar consequences.
During the NDA government, in 2015 and 2016, both these rules were amended for granting exemption to persons belonging to minority communities in Afghanistan, Bangladesh and Pakistan, namely Hindus, Sikhs, Buddhists, Jains, Parsis and Christians who were compelled to seek shelter in India due to religious persecution or fear of religious persecution and entered into India on or before 31 December 2014 without proper travel documents (that is, those who are illegal migrants) from the provisions of these laws.
Thus, such illegal migrants cannot be prosecuted or expelled. What the present amendment does is to provide citizenship to these very persons, provided they satisfy the conditions under the amended Passport Rules and Foreigners Order. The amendment to the rules prescribes persecution or fear of persecution as one of the conditions, and thus, even theCAA would be applicable to only those illegal migrants who satisfy the condition of persecution. These rules are also under challenge in the Supreme Court.
What seems to be obvious is that the purpose behind the amended act seems to be to emphasise that Islam, by its very nature, is fundamentalist that persecutes non-Muslims and needs to be opposed. This is a totally communal act.
What is important to understand is that even if the NPR and NRC never take place, the Amendment to the Citizenship Act would still exist and allow the grant of citizenship to certain communities while excluding others. In combination with the NPR and NRC, it becomes even more lethal.
The NPR and NRC
The idea of anPr andnrc comes for the first time with the 2003 amendment to the Citizenship Act and the passing of the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003. The rules were also issued under the Citizenship Act, 1955. Before this, there was no requirement for every citizen to register on any common list. Article 326 of the Constitution provided that voting rights were available only to citizens. Thus, if you are a voter, you are automatically a citizen. Similarly, passports under the Passport Act could only be issued to citizens. Again, agricultural land can only be owned by a citizen. Consequently, by a simple rule of thumb, if you are on the voting list, or have a passport, or are having agricultural land, you are a citizen and so would be the children born to you in India. The need for a separate register was completely otiose. If the state suspected any one to be an infiltrator or an illegal migrant, the police had the powers, under the Foreigners Act, to arrest, prosecute and extradite such a person. What is also important is that under the Foreigners Act, the burden of proving that they are not a foreigner was on the accused and not on the state. And many such prosecutions have been conducted across the country and many of them successfully. The need for documented citizenship did not exist.
If the proof of citizenship was required, it was, by and large, by birth. The primary proof of birth is the birth certificate. For those born before 1987, proving their own birth would be enough. For those born between 1987 and 2004, they would also have to prove citizenship of one of their parents, and for those born after 2004, citizenship of both the parents would have to be proved. The Compulsory Registration of Births and Deaths Act was brought in 1969. Three in five children (62.3%) under the age of five had their births registered and possessed a birth certificate in 2015–16, according to the National Family Health Survey (NFHS-4), the latest data available. This is an improvement from 26.9% in 2005–06. But, the present data seems to be an overestimation. In any event, even going by the latest figures, nearly 24 million children under five did not have their births registered in the last five years, UNICEF estimated. For those above five years, the figure would of course be much higher.
The non-registration would be more frequent amongst tribals, Dalits and poor communities. In addition, millions of people are migrant workers within India who have hardly any birth or for that matter any documentation. In a study conducted by UNICEF in 2001, it was found that overall birth registration in India was 34.7%, and within this, Uttar Pradesh had a birth registration rate of 6.5% and Bihar of 1.6%. Even if these figures may have gone up in recent times, it is still a long way to go for all births to be registered. If the example of Assam is anything to go by, a large number of persons have been excluded because in their documents, there was a slight discrepancy in the spelling. Women are the biggest victims there because in the villages in which they are born, there is no documentation, and in the villages, where they are married into, the documentation, at the best, will be from the date of marriage, and not birth. Besides, names are changed after marriage, and there is often nothing to connect the previous name to the new spouse. Problems will also arise for those belonging to the transgender community.
Let us have a brief look at how the Citizenship Registration Rules operate. Under these rules, a population register has to be first created through a house-to-house enumeration. This is the population registration which is to be undertaken nationwide between April and September 2020. Under no other law is there a concept of a population register. You carry this out only if you want to follow it up with the nrc. For the government to now say that the two are not connected is a white lie. If one wants to carry out a survey for the purposes of determining the country’s population size and its break-up even at the micro level, you carry out a census. Census has been carried out every 10 years since 1872, and since independence, it is carried out under the Census Act, 1948. The precise purpose of the census exercise (apart from knowing the population) is to find out the socio-economic situation to assist the government for making welfare schemes.
The question then arises is: Why did the United Progressive Alliance government conduct the NPR in 2010? That is a mystery. But, one thing is clear—that it was not meant for determining citizenship. By 2010, the law was settled. For all those born after 1987, proof of citizenship of one or both parents was essential. The NPR, for the purposes of citizenship, would need this information. But, this was not part of the questionnaire of the NPR in 2010. It appears that the NPR was done for linking it with the Aadhaar scheme, which had started at that time. Maybe, at that time, the plan was to use the Aadhaar card like a citizenship card. The Aadhaar Act was passed only later on by the NDA government in 2014, and Section 9 of this act says that the Aadhaar card is no proof of citizenship. But, all this is at the level of conjecture. What is clear is that under the NRC Rules, the only purpose of the NPR is to follow it up with an NRC. What is now sought to be done is the addition of questions concerning details of parents’ birth. And, of course, Aadhaar card details, etc, which will lead to massive surveillance.
The manner in which it works is that the population register is prepared locally by collecting information by door-to-door study, and after this, it is verified and scrutinised by the local registrar (the lowest level officer at the village or ward level) and in case the citizenship of anyone is under doubt, such a person or family will be given a chance to prove their citizenship. This is where the problem arises. Who will be treated as a doubtful citizen will be decided by the lower-level officer. There is a strong possibility that such a person will be directed to declare a doubtful voter only persons of certain communities and castes. Or, it can lead to huge corruption, which obviously, will act against the poor. In a country where, even to get a ration card, bribes are regularly paid, citizenship will have a much higher price. Anyway, if your name is still excluded, you can proffer an appeal to the district registrar. Now, under the Foreigners Tribunal Amendment Order 2019, an appeal can be filed before the Foreigners Tribunal, which will take the final decision. If you are unable to prove citizenship, you will be declared a foreigner and placed in a detention camp till you are extradited to a country that may want to accept you. It is also possible that the person declared as a foreigner is not placed in a detention camp, but roams around as a stateless person without rights, unable to access education, food, employment schemes and available for doing slave labour for a multitude of corporates who may be preying on such persons who can demand basic rights only at the risk of being sent to detention camps.
If the example of Assam is anything to go by, the foreigners tribunals are a disaster. Principles of natural justice are routinely violated; no legal aid is being provided; these are in-camera proceedings; a large number of presiding officers have no judicial experience and hardly any experience as lawyers; and it is strongly believed that they are given targets of declaring foreigners, which, if not met, render such presiding officers liable to being removed. Also, the burden of proving citizenship is on the accused. The public in Assam has spent huge amounts of money in gathering documents, travelling to foreigner tribunals and paying lawyers. Many have sold their lands for this purpose, and some have been forced to commit suicide.
While under citizenship rules one is not obliged to answer any questions at the time of door-to-door studies, under Rule 7, it is the responsibility of every citizen to get themself registered in the Local Register of Indian Citizens, and, under the same rule, it is the responsibility of the head of every family to provide all details about every family member during preparation of the population register. Violation of the rule can lead to a fine of ₹ 1,000. Even if one is willing to pay the fine and not answer the questions, the consequence can be that such a person will be treated as a doubtful citizen and possibly treated as a foreigner. For non-cooperation to work effectively, it needs to be widespread and not merely sporadic.
The CAA is a completely unconstitutional amendment and should be scrapped. The NPR and NRC, apart from being a colossal waste of money, will also lead to an unprecedented nationwide tragedy, disenfranchising crores of people and rendering them stateless and without rights. It will also go a long way in profiling the population, and especially with the present political dispensation, this will lead to communal and caste-based targeting. This will also advance further the agenda of the dispensation to complete the transition to a surveillance state. While Muslims, undoubtedly, will be targeted, the NRC and NPR will not omit from its sweep the Dalits, tribals, the poor and the marginalised from other communities.
1 Constitution of India, Articles 1 and 5.
3 Constitution of India, Article 7.
4 Citizenship Act, 1955, Sections 8 to 10.
5 Child Rights Convention, “Article 7. (1) The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and as far as possible, the right to know and be cared for by his or her parents. (2) States Parties shall ensure the implementation of these rights in accordance with their national law and their obligations under the relevant international instruments in this field, in particular where the child would otherwise be stateless.”
Jayal, Niraja Gopal (2013): Citizenship and Its Discontents: An Indian History, 1 January, Harvard University Press