CITIZENSHIP TANGLE Why the National Population Register is more dangerous than the Assam NRC

The Assam NRC was not an anti-Muslim project. But an all-India NRC based on the NPR will allow the executive to pick whose citizenship it wishes to question.

Prime Minister Narendra Modi claimed to the people of India on Delhi’s historic Ramlila Grounds on December 22 that his government had never since 2014 even considered implementing a nation-wide National Indian Register of Citizens. But the NRC was part of the President’s address in Parliament in June, and had been promised by Modi’s Home Minister and closest lieutenant Amit Shah several times in Parliament and outside. It was therefore an obvious flagrant untruth spoken by a person holding the most powerful public office in the republic.

But some took comfort from his brazen fabrication as they saw in it a signal that he was stepping down from this core agenda of his government and its ideological mentor the Rashtriya Swayamsevak Sangh. It appeared that perhaps, unsettled by the largest spontaneous countrywide protests in all corners of the country seen after Independence, the prime minister had decided to push the national NRC into the cold storage, at least for the present.

However, within days, it became abundantly clear that his purpose was not to reassure the masses of dissenting Indian people, even less to respect their intense disquiet about a measure that so many saw as divisive and destructive of the constitution. It served two other very different purpose. It gave a fig-leaf – albeit a very flimsy one – to supporters of the government. And more importantly, it was fodder to deliberately build a smokescreen to mislead and further confuse public opinion.

The home minister was quick to state on record that the NRC would not be implemented but only, he repeatedly underlined, for the present. Both he and the prime minister refused to rule it out. But there was another most unmistakable indicator, again a deliberate signal, that the government remained determined to continue to thrust the country down the dangerous and divisive pathway that it had charted for the republic. This was by holding a highly visible and public cabinet meeting, during the peak of the protests, announcing that the government would begin work on a National Population Register.

Ambiguous message

The minister who made the announcement said that the NPR had nothing to do with the NRC. But public trust in our prime minister and his cabinet has never plummeted as low as it is today, because of the calculated official mendacities unleashed regularly on the people around matters as critical as the state of the economy, jobs, growth, and now most dangerously about citizenship, which is the foundational right as it is the right to have rights. Without public debate, without any transparency, a regime is being unleashed in which every citizen will have to establish her citizenship if the executive chooses to doubt it. This is being rammed through processes which are intentionally clouded in official secrecy. The only unambiguous message the Union government continues to convey, amplified by the RSS, is that the state seeks to dismantle the citizenship of people of only one kind of religious identity.

Supporters of the ruling establishment argue that, despite the prime minister’s announcement, the widespread fears that persist that the implementation of the National Population Register, alongside the National Register of Citizens and the Citizenship Amendment Act, will lead to mass exclusion of Indians, particularly Muslim citizens, are fanciful, indeed mischievous fear-mongering. The protestors, on the other hand, have a clear insight that the government is attempting to discriminate based on a person’s religious identity, and that this strikes fatally at the core of the constitutional morality of the republic. But by the explicit design of the Union government, by its silences and falsehoods and dog-whistles, it may not always be easy for them to see clearly how the three policies tie together, and what they portend.

To understand this, we need to begin first with the Citizenship Amendment 2003, which was introduced by the Vajpayee government, and was what laid the foundations for the process of targeted disenfranchisement which the Modi government has taken forward with such resolve. If the Bharatiya Janata Party had been returned to power in 2004, it is quite likely that the NRC-NPR may have been initiated much earlier.

The Citizenship Amendment 2003 laid down firstly that a person cannot claim citizenship, even if born and raised in India, if any one of her parents is an “illegal immigrant”. It then prescribed the creation of a National Register of Indian Citizens as an instrument to identify “illegal immigrants”. How the NRC would be executed would be prescribed by Rules under the Act. Rules are not required to be approved by Parliament, because the executive is authorised to make Rules as part of subordinate legislation. It is the Citizenship Rules 2003 that provide that the Central government, through the Registrar General, can start compiling an National Popular Register “for the purpose of National Register of Indian Citizens”.

Thus, contrary to the disingenuous insistence of senior government functionaries, the is integral to the NRC. Under the rules, the NPR amounts to the “initialisation” of an NRC. The Registrar General has already initiated this process through a notification in July 2019.

After the compilation of NPR, local government functionaries are permitted to identify persons whose citizenship is “doubtful”. These powers will lie with junior officials at the level of the tahsildar upwards. Not only will the officials have completely unguided discretion to classify residents as “doubtful” citizens, they can also demand any person to provide any information or documents.

Power to disenfranchise

It is important to underline that this is no ordinary power. It is the power to decide if a resident, any resident, should be required to establish their citizenship through a web of vintage documents that few of us, even those who enjoy a range of privileges, would be able to muster. The consequences of not being able to prove their citizenship with these ephemeral documents can result in a person being declared an “illegal immigrant”, banished for years to detention centres, and stripped of citizenship rights including the right to vote and to own property. In stark words, it is the power to disenfranchise people.

Even more worryingly, the government will then make the draft public, and invite objections against the inclusion of individuals and families. Before finalising the NRC, local government officials will consider these objections. Again, the rules provide no guidance whatsoever about what nature of objections can be accepted.

This process is obviously open to severe abuse. In fact, it appears to be practically designed for such abuse, to empower the executive to target, without due process, individuals and families of its choosing, to ultimately deprive them of their citizenship rights. The problem is not only that the rules do not specify which documents are required for establishing citizenship. Officials are free to adopt varying standards for different citizens, which could lead to capricious targeting of citizens.

The delegation of such unbridled power to the executive violates the rule of law ideal under the Constitution, which requires the legislature to provide proper guidance and safeguards for the implementation of laws. Parliament must include clear criteria, standards and principle to the executive to implement the purpose of the legislation. If the powers given to the government are – in the words of the Supreme Court’s Hamdard Dawakhana case (1959) – “uncanalised and uncontrolled”, the legislation is unconstitutional. The vague – and excessive – powers in the NPR-NRC process clearly violate this principle.

These powers also practically allow the executive to victimise genuine citizens. The stakes of the abuse are high. Citizenship status, as we noted, is foundational because it is the very basis of an individual’s legal personality. It is the right to be eligible for and to exercise other rights. For something so fundamental to be left to the discretion of ordinary administrators is an outrageous and unconscionable violation of due process. In a country where overwhelming masses do not possess legal documents, this executive discretion will potentially make everyone’s citizenship suspect. If the Assam NRC is anything to go by, even the most basic documents may fail to establish citizenship if minor errors creep into them.

Equally disturbing is the element of public objections. The Rules allow for sensitive personal data to be collected and stored by government officials without any data security. This by itself violates the Supreme Court’s ruling in the Aadhaar case (2018) that required anonymity and encryption. In complete disregard, the Rules require the government to maintain data at various levels of government and publicise them for objections from the public. This further enhances the possibility of malicious targeting.

Imagine these powers in the hands of the current Uttar Pradesh government, India’s most populous state headed by Chief Minister Adityanath who openly flaunts like a badge of honour his hostility to Muslims. It is not difficult to imagine which people he and his officials would mark as “doubtful citizens”. Imagine the power of ordinary citizens to further question the citizenship of other citizens, used by the well-oiled machine of the Rashtriya Swayamsevak Sangh and its myriad affiliates. This process realistically could become an instrument of systematic hate targeting of a community by the state executive and their ideological fellow-travellers.

The NPR-NRC process in these ways will establish a living nightmare of rules, where any individual can be drawn into a maze of legal procedure, to constantly produce documents that may never satisfy the bureaucrats.

The Citizenship Amendment Act fits into, indeed crowns, this legal dystopia. The constitutional objections to the amendment are well known by now. The government claims that the law ameliorates the condition of persecuted minorities from India’s neighbourhood. But it is inexplicably limited to Pakistan, Bangladesh and Afghanistan. It overlooks the persecuted migrants from China, Myanmar and Sri Lanka. The government has given no rationale for the special treatment of persecution based on religion, as opposed to other grounds like ethnicity, language, politics or nationality. The amendment excludes Muslims despite the abundant evidence of religious persecution of Muslim sects in the region. It even fails to be a fair refugee policy for Hindu migrants. It arbitrarily excludes migrants after December 2014, even if they may have suffered religious persecution. Each of these violates the Constitution’s equal protection clause that guarantees rational, reasonable and non-arbitrary treatment to all Indian residents.

But once the amendment exists alongside NRC and can be turned into its companion, the impact will not remain limited to regulating the citizenship of migrants. The government is yet to prescribe how non-Muslim migrants will be expected to prove their country of origin, date of migration and proof of persecution under the amendment. But there is a good possibility that the government will push for extremely minimal requirements of evidence, or even simply a presumption. In such a case, even if non-Muslims fail to prove their citizenship during the NPR-NRC process, they may be able to invoke the amendment. No such respite will be available to Muslims, making the implementation of the law sectarian.

By excluding Muslims, the amendment re-enforces a background assumption that Muslims are less Indian and more likely to be doubtful citizens. This is bound to shape the behaviour of officials operating NPR-NRIC. The amendment will become a weapon against citizens who the government feels are undesirable.

In Uttar Pradesh, we have found uniformed policepersons rampaging Muslim homes, lawlessly destroying their property and beating even children, women and old people with visceral hate like rioters. In many of their homes, the residents told us that the policepersons said that the Muslims would have to leave their homes and leave for Pakistan, because of the new law.

If this is the kind of understanding that the BJP government has disseminated among its supporters and even its officials about what the CAA-NRC-NPR trinity will accomplish, it is chilling then to think of how unbridled powers to sift citizens from non-citizens and to strip them of their rights and freedom vests with the junior executive, will be exercised and against who.

In summary, far from pushing the NRC into the backburner, the Union government, by announcing an NPR, which includes newly added questions about one’s parents’ details, heralds an NRC even more dangerous than the Assam NRC. There were many injustices in the way that the NRC was implemented in Assam, and this took an enormous toll of human suffering. But the Assam NRC was not a communal anti-Muslim project. All persons, of all faiths, were equally tasked to prove their citizenship by a list of documents. An NRC which is built on the NPR will allow the executive to pick and choose whose citizenship it wishes to interrogate. This will succeed in thrusting India’s Muslim people – and a range of other most disadvantaged people, including homeless persons, persons with disability, transgender persons, nomadic and denotified tribes, persons with disability, orphaned and abandoned children, circular migrants and millions of others – into years of dread and uncertainty about if, when and how they might be deprived of their citizenship and sent to detention centres (which againModi claims, with the same barefaced falsehoods, do not exist).

The piloting of the NPR has already begun in Karnataka from January 1. It is due to commence across the country from April 1. Unless all non-BJP governments refuse to implement the NPR, they will be collaborating in a process of targeted mass disenfranchisement of the kind that Nazi Germany witnessed in the grim years leading to the Holocaust. History will find it hard to forgive them.