Updated on 14 October, 2019
Nationwide NRC After preparing the National Register of Citizens (NRC) in Assam, the central government has said it will conduct a similar exercise in the rest of the country. There is a need to examine the need and implications of such an exercise. Background
- NRC is a register containing the names of all genuine Indian citizens. It was first conducted in 1951 to enumerate Indian citizens.
- In Assam specifically, there have been mass movements and violent agitations over the decades against infiltrators from Bangladesh and a demand to update the NRC.
- To find out illegal migrants from Bangladesh and other adjoining areas, updating of NRC has been going on under The Citizenship Act, 1955, and according to rules framed in the Assam Accord.
- The Assam government has updated the final draft of NRC on 30th July 2018. The list consists of the names of 2.89 crore people out of 3.29 crore people. The names of 40.07 lakh people have not included in the list.
- Those who have not included in the final National Register of Citizens (NRC) to be published on August 31 will get a window of 10 months to prove their citizenship before being sent to a detention camp.
Who is a citizen of India? Article 5 of the Constitution of India, titled as 'Citizenship at the Commencement of the Constitution of India', provides that any such person who or either of whose parents were born in the territory of India, or who has been ordinarily resident in India for at least five years before the commencement of the Constitution, shall be deemed to be a citizen of India, if he had a domicile in the territory of India at such commencement. The Article is however silent on the definition of 'domicile' and has left the matter for Courts to interpret. By power under Article 11 of the Constitution of India to make laws for acquisition and termination of citizenship, the Citizenship Act was enacted in the year 1955. The Citizenship Act lays down five ways of acquiring citizenship:
In addition to acquiring citizenship through these provisions in Citizenship Act, Section 13 of the Act is a supplemental provision that deals with issuance of a certificate of citizenship, in 48 cases of doubt as to a person's citizenship of India. This provision lays the power with the Central government to issue a certificate of citizenship to such a person in respect of whom a doubt exists about his/her citizenship of India. Loss of nationality under the Indian Citizenship Act, 1955 has been elaborated upon in two provisions: Section 9 titled 'termination of citizenship' and Section 10 titled 'deprivation of citizenship'. Although the two provisions have different titles, the consequence that follows is the same—the person ceases to be a citizen of India. The only distinguishing factor between the two ways of withdrawal of nationality is that the 'termination' of nationality occurs automatically by operation of law, while 'deprivation' is initiated by action on part of the Government.
- By Birth
- By descent
- By registration
- By naturalization
- By incorporation of new territory.
Article Provisions Article 5 Citizenship at the commencement of the Constitution Article 6 Rights of citizenship of certain persons who have migrated to India from Pakistan Article 7 Rights of citizenship of certain migrants to Pakistan Article 8 Rights of citizenship of certain persons of Indian origin residing outside India Article 9 Persons voluntarily acquiring citizenship of a foreign State not to be citizens Article 10 Continuance of the rights of citizenship Article 11 Parliament to regulate the right of citizenship by law
What has triggered the debate of a nationwide NRC? Two recent govt. steps have ignited the debate about nationwide NRC. They are as follows:
- National Population Register project
- Amendment in the Foreigners (Tribunals) Order, 1964
- National Population Register project
What is the NPR?
- The NPR is a list of “usual residents of the country”. According to the Ministry of Home Affairs, a “usual resident of the country” is one who has been residing in a local area for at least the last six months, or intends to stay in a particular location for the next six months.
- The idea of NPR actually dates back to the UPA regime in 2009.
- In fact, at that time it had clashed with Aadhaar (UIDAI) over which project would be best suited for transferring government benefits to citizens.
- The Home Ministry had then pushed the idea of the NPR being a better vehicle because it connected every NPR-recorded resident to a household through the Census.
- The data for the NPR was first collected in 2010 along with the house listing phase of Census 2011.
- In 2015, this data was further updated by conducting a door-to-door survey.
- Unlike the NRC, the NPR is not a citizenship enumeration drive, as it would record even a foreigner staying in a locality for more than six months.
- The NPR is being prepared under provisions of the Citizenship Act 1955 and the Citizenship (Registration of Citizens and issue of National Identity Cards) Rules, 2003.
- It is mandatory for every “usual resident of India” to register in the NPR.
- It will be conducted in conjunction with the houselisting phase, the first phase of the Census, by the Office of the Registrar General of India (RGI) under the Home Ministry for Census 2021. Only Assam will not be included, given the recently completed NRC.
- The NPR exercise is conducted at the local, sub-district, district, state and national levels.
- The final enumeration will begin in April 2020 and ends in September 2020.
What is the controversy around it?
- It comes in the backdrop of the NRC excluding 19 lakh people in Assam.
- With the government insisting that the NRC would be implemented across the country, the NPR has raised anxieties around the idea of citizenship in the country.
- Even as debate continues on Aadhaar and privacy, the NPR intends to collect a much larger amount of personal data on residents of India.
- The idea of conducting a nationwide NRC would only happen on the basis of the upcoming NPR. After a list of residents is created, a nationwide NRC could go about verifying the citizens from that list.
- NPR information is private and confidential, meaning it will not be shared with third parties. There is as yet no clarity on the mechanism for the protection of this vast amount of data.
What kind of data will NPR collect?
- The NPR will collect both demographic data and biometric data.
- There are 15 different categories of demographic data, ranging from name and place of birth to education and occupation, that the RGI is supposed to collect in the NPR.
- For biometric data, it will depend on Aadhaar, for which it will seek Aadhaar details of the residents.
- In the 2010 exercise, the RGI had collected only demographic details.
- In 2015, it updated the data further with the mobile, Aadhaar and ration card numbers of residents. In the 2020 exercise, it has dropped the ration card number but added other categories.
- According to Home Ministry sources, while registering with the NPR is mandatory, furnishing of additional data such as PAN, Aadhaar, driving license and voter ID is voluntary.
Why does the government want so much data? For better policies: Every country must have a comprehensive identity database of its residents with relevant demographic details. The govt. says it will help the government formulate its policies better and also aid national security. Justifying the collection of data such as driving license, voter ID and PAN numbers: It will help target government beneficiaries in a better way, but also further cut down paperwork and red tape in a similar manner that Aadhaar has done. Streamline data of residents across various platforms: With NPR data, residents will not have to furnish various proofs of age, address and other details in official work. It would also eliminate duplication in voter lists.
- Amendment in the Foreigners (Tribunals) Order, 1964
- An amendment in the Foreigners (Tribunals) Order, 1964, issued by the central government on May 30 paves the way for expanding the scope of NRC beyond.
- The amended order empowers state governments and even district magistrates of all states and Union Territories to set up tribunals to identify a "foreigner" who is living in India illegally.
- Before the amendment, undocumented immigrants in other states were tried before a local court under the Passport Act, 1920 or the Foreigners Act, 1946.
- If found guilty, they were imprisoned for three to eight months and detained in special centers thereafter, until their respective countries took them back.
- With the amendment, state governments and district collectors/magistrates can now locally constitute a special tribunal anywhere in India to “detect” and take action against an “infiltrator”.
- The order also laid out guidelines to “detect, detain, and deport foreign nationals staying illegally across the country”.
- Such an amendment that empowers even district authorities to “detect” foreigners may be interpreted by the courts as “violative of the basic tenets of the Indian Constitution and Citizenship Act itself.
- The NRC exercise in other states will subvert the principles of natural justice.
- A person who is branded an undocumented immigrant by the state authorities will have to carry the burden of proving herself a legitimate citizen, rather than the other way around.
- Unlike regular criminal courts, “the person under question will have to prove both the authenticity of their citizenship and the authenticity of the documents to build his/her case.
- The amended order restricts appeals for such persons solely to the tribunals under specific terms and conditions, and that may increase the “possibility of bias or an erroneous judgment”.
What the govt. says? The Centre has now clarified that the amendment was done to facilitate the foreigner's tribunals to decide on appeals made by people “not satisfied with the outcome of claims and objections filed against the NRC”. The MHA said that this order is applicable only to Assam for “all practical purposes” as the NRC is going on only in that state. Why nationwide NRC should be conducted?
- Security Issues:
- It is reported that illegal migrants have settled in other parts of India, especially in the states bordering Bangladesh.
- To ensure that these Bangladeshi illegal migrants do not find shelter in any other part of India. Otherwise, the ongoing exercise in Assam will be a futile one.
- They can pose security challenges to India.
- Political stability–Political control may be weakened and employment opportunities undermined due to illegal migrants.
- Increase financial burden: Illegal migrants have put more pressure on the resources of the state. The Indian government has to increase the expenditure on health and education facilities to illegal migrants.
- Illegal voters: Most of the illegal migrants from Bangladeshi have got their names in the voting list illegally, thereby claiming themselves as citizens of the state. These illegal migrants act as a vote bank for political parties.
Why nationwide NRC should be not be conducted?
- Given the size of India’s population, implementation of the NRC will be a mammoth task and demands a detailed analysis of the likely challenges it will face.
- Status of “disenfranchised" people: The NRC process, which ended in Assam on 31 August, has already left 1.9 million “disenfranchised" people, who will now have to appear before foreigners tribunals to avoid being declared stateless. Where will millions of stateless people go after nationwide NRC?
- The NRC in Assam was not done on the whims of the state government but it was done following the Assam Accord (1985). The exercise makes sense in Assam because in 1971 around 10 million people crossed over from Bangladesh to India. But nationwide NRC does not make sense.
- Fomenting regionalism: There is a danger that it could lead to regionalism in practice. In Karnataka, there are Tibetan Buddhists who have settled down in Bylakuppe. It was given to them. But now to look at who belongs there and who doesn’t is an exercise that will cause a lot of social strain
- Citizenship Amendment Bill: While the NRC does not identify persons ‘of Indian origin’ on the basis of religion or ethnicity when clubbed with the impending Citizenship Amendment Bill, those deprived of citizenship will solely be Muslims. This will be violative of secularism enshrined in our constitution.
- A nationwide NRC is possible if the government gets a law passed from the Parliament.
- It will put a very heavy strain on the exchequer of the Union Government.
- Finalizing the cut-off date for the Indian citizenship: Arriving at this agreement will require deep introspection both from the state and civil society. There are groups who might argue for providing citizenship to people who came to India between 1950 and 25 March 1971 from both East and West Pakistan -- primarily minorities who came to India to escape persecution. There might also be opposition to such views by some political parties who say it is a partial policy.
- The cooperation of the States: Support of the State governments will be vital, and reaching a consensus on the NRC will be a challenge. Already, state governments like West Bengal have expressed reservations on the issue.
- The constitutional validity of Sections 3(1)(b) and (c) of the Citizenship Act: Another question to be decided is whether, after over 40 years of living in India, a person can be displaced even if found to be an illegal immigrant. The constitutional validity of Sections 3(1)(b) and (c) of the Citizenship Act which form the basis of the SC order is itself under challenge in another writ petition and has again been referred to a constitution bench
In a recent development, the Supreme Court passed an order clarifying certain queries raised by the state coordinator of the NRC. The question before the court was regarding the status of children born in India after December 3, 2004, one of whose parents was a “doubtful voter” or “declared foreigner” or whose case was pending before the Foreigners Tribunal or some other court, though the other parent was validly included in the NRC. The S Supreme Court held that even if one of the parents of such children was unable to establish citizenship in the NRC process, the child would not be entitled to have his or her name included in the NRC. The court noted that these very questions were pending before the constitution bench and would be decided in that case.
- Constitutionality of Section 6A: The fixing of March 24, 1971, as the reference date for the exercise of Section 6A of the Citizenship Act is itself the major plank of the challenge before the constitution bench.
While Section 6A was inserted in 1986 as a result of the Assam Accord, the court accepted the challenge to its constitutionality in 2014 and referred to the Constitution Bench 13 questions such as whether Section 6A is constitutional and valid though it prescribes a different cutoff date for Assam (1971) from the one prescribed in the Constitution for the rest of the country (1949).
What is the Citizenship (Amendment) Bill:
- The amendment proposes to permit members of six communities — Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Pakistan, Bangladesh, and Afghanistan — to continue to live in India if they entered India before December 14, 2014.
- It also reduces the requirement for citizenship from 11 years out of the preceding 14 years, to just 6 years.
- Two notifications also exempted these migrants from the Passport Act and Foreigner Act.
- A large number of organizations in Assam protested against this Bill as it may grant citizenship to Bangladeshi Hindu illegal migrants.
International Legal Framework Applicable to India
- Universal Declaration of Human Rights, 1948
- The Universal Declaration of Human Rights (UDHR) remains the cornerstone of international human rights law. It was adopted by the UN General Assembly on December 10, 1948.
- The most relevant article of the UDHR is Article 15, which states that:
- Everyone has the right to a nationality. No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.
- International Covenant on Civil and Political Rights (ICCPR), 1966
The ICCPR was adopted by the UN General Assembly on December 16, 1966, and was brought into force on 23 March 1976. It states the commitment of state parties to uphold civil and political rights. India acceded to the Convention on 10 April 1979
- International Covenant on Economic, Social and Cultural Rights (ICESCR), 1966
- The ICESCR was adopted by the UN General Assembly on December 16, 1966. 23.
- India has acceded to the Covenant (1979).
- The framework of the Covenant seeks to secure, amongst the State parties, economic, social and cultural rights to all persons. By being denied citizenship or nationality, these rights are effectively denied to a stateless person, thus excluding him from the loop of human rights itself.
- A central authority: It is recommended that India may create a set up a central authority for the purpose of identification and determination of statelessness.
- This authority could then also create a centralized procedure for carrying out the determination of nationality status.
- This procedure may have provisions that pre-empt the problem of statelessness in various parts of India (such as in the frontier states) and take necessary measures to ensure that further statelessness is avoided.
- Nearly 80 countries have acceded to the 1954 UN Convention on the Status of Stateless Persons. Many of them have additionally set up national determination procedures for citizenship.
- Stateless persons: As the Indian government currently has the on-going projects of Aadhar and NPR, it is recommended that a separate category of 'stateless persons' be added to the data collection involved in these two projects.
- This may further facilitate the central authority on gaining qualitative and quantitative data on statelessness, as well as help in further research on the conditions of stateless persons.
- Awareness campaigns: Holding nationality campaigns or nationality verification camps so that more people become aware of and determine their citizenship.
- Establishing the burden of proof: The application for a status determination that is submitted to the central authority requires examination and a decision based on evidence and facts. The Indian authority delegated with this responsibility could adopt the concept of 'shared burden of proof' in the case of stateless persons, asylum seekers, and refugees.