Dismissing Amit Shah’s statement that the process for the registration of citizens is yet to be worked out, Prof Faizan Mustafa warns that the data collected for the National Population Register (NPR) under Census 2020 will later be used for the National Register of Indian Citizens (NRIC, or NRC), and that the rules for this process had already been fixed under the Vajpayee government in 2003. That year, the Citizenship Act of 1955 was amended to include Section 14-A, and this amendment has created the legal grounds for the NRC. Indeed, the NPR is framed on the basis of this law, rather than the Census Act of 1948 —which would normally govern any population count. Under the authority of the Registrar General of India, who heads the census exercise, the process of preparing the NPR will be enumerative and comprehensive, not application-based (as was the case in Assam, where it was left to individual applicants to approach the authorities and assert aclaim to citizenship). While the NRC has not yet been officially notified, the NPR data — to be collected between April 1 and September 30, 2020 — will be a big step towards thecrystallisation of a national register. Indeed, the UP government is already preparing the ground for it, with surveys, video documentation and surveillance records.
Once the census is underway, people whose documentation is held to beincomplete or suspect will be placed in a separate list for further inquiry. Thus, the first stage of exclusion will be decided by a low-ranking official, as was done in Assam with the list of “Doubtfuls”. There, the election commission’s D-voter list, begun under T.N. Seshan andsteadily expanded thereafter, was a significant contributor to the miseries brought by the NRC. The lesson from the Assam experience is that petty exclusions in an unrelated-seeming process can and will count against an individual. In Assam, applicants who found themselves isolated in a separate category had to fill out a form seeking the correction or ratification of their documents, and approach the foreigners’ tribunals with these forms. The tribunals were establishedunder the Foreigners’ Act of 1946 —not originally meant forcrosschecking the identity of Indian citizens, but repurposed towards this end. It is important that thenationwide NRC process not go down the same path. Mustafa emphasises that citizens’ tribunals need to be set up, with their own governing rules, distinct from those of the foreigners’ tribunals. The verification process will need to override discrepancies within documents such as variable spelling, a missing middle name, and so on, which caused immense grief in Assam.
Assam’s NRC processhad a declared “List-A” of fourteen acceptable documents that could be submitted in order to be recognised as a citizen. These were documents in official use since before 1971. Among them wasproof of the applicant’s inclusion in the first NRC list of Assam, compiled in 1951. Aside from this, evidence of citizenship would include appearing in electoral rolls from prior toMarch 24, 1971, birth or education certificates, land/ tenancy records, passports, court records, government-issued licences or records of government employment, permanent residential or refugee registration certificates, bank/ post-office accounts, or LIC policies. Any one of these proofs would suffice to claim citizenship. Two further documents were admitted, a certificate issued by the circle officer, andgram panchayat certificates in the case of married women. (Concerning these panchayat certificates, see the ICF report of December 16, here.) Despite the scheme’s liberal-seeming scope, in the event former employees of the BSF and even members of President Fakhruddin Ali Ahmed’s family found themselves excluded from the NRC.
Staying with Assam, if applicants could not present List-A documents to verify their identity and residence, they were permitted to offer any such papers bearing the names of their ancestors from up to two generations back andestablish their relationship through a secondary set of documents (called List-B). Applicants nowlanded in the nightmare landscape of government records, where discrepancies of name, date and spelling were the norm and led topunishing consequences. Families living in Assam since 1926, even landowners, were excluded from the NRC list.
At the moment, there is no clarity on what documents will be involved in the new process of verifying identity. We can only extrapolate from the example of Assam and make educated guesses.
While Assam’s NRC process took March 25, 1971, as its cut-off date, there can be no uniform date for the national NRC. People born before January 26, 1950 (the commencement of the Constitution) need prove only their birth in India. We do not yet know by means of what documents they are expected to do so. Mustafa underlines the globally widespread legal position that birth automatically confers citizenship and no authority may revoke it. This is the law in several countries. India could adapt the principle to its needs by making the registration of births mandatory from 2020 onwards. Accompanied by aggressive awareness campaigns, such a law may be enforceable. A law focussed on the future would also be more fair than one retrospectively enforced.
The secondlandmark date for citizens to make the grade is July 1, 1987. Any document (from List-A) proving their birth in India prior to this date will suffice to establish their citizenship. Those born between July 1, 1987, and December 31, 2003 — or,between 16 and 32 years of age today— will need to prove their own birth in the country and the Indian citizenship of either one of their parents. The list of evidentiary documents has not been notified yet, but it is likely to include more options. For instance, the Aadhaar and Pan cards are not considered proof of citizenship, but may well become admissible in time. The law gets stricter for people born after January 1, 2004. Aside from proving their own birth in India, they must prove that both their parents are Indian citizens, or, if one of them is foreign-born, that s/he was not an illegal immigrant. This has serious implications for individuals belonging to the SC/ST categories.
The Supreme Court has laid down that the benefits of reservations are available to a candidate only in his/her home state. In the case of a family of migrant workers, where three generations may be born in three different states, where would they be eligible to exercise their right to reserved seats? Especially since the NRC process would establish them as non-native claimants in one state and non-resident ones in another? What if such workers married outside their community of birth? What becomes of their children’s claim to reservations? There is no clarity on these matters yet.
People who are left out of the list of confirmed citizens at the end of the census will have to apply first to the Registrar General for rectification of the list. This is the first stage of possible redress. Thereafter, the case goes to the foreigners’ tribunal, or such is the likely process in light of Assam’s experience. At this stage,once the case is before the foreigners’ tribunal, detention becomes a real prospect.
The NPR enumeration, set to begin on April 1, 2020, will settle the question of residence status, i.e., where any respondent, including a foreigner, has been staying for the previous six months. The pilot project, conducted in August 2019, framed fourteen questions in all. This is an excessive intrusion in terms of the amount of information sought and its type. Both demographic and biometric data are to be gathered. Biometric information enjoys no special protection under Indian law. This means that citizens’ data in storage with the state is vulnerable, since its protection has not beentreated as a priority. News stories of data hacked from Aadhaar cards and put on the markethave repeatedly proved the point. Alongside the name, date of birth, marital status, education, occupation, etc. and biometric information, the census will collect mobile phone numbers. The mobile phone is already a surveillance tool, so that’s another area of concern. At the moment, the looming NPR process betokens a loss of liberty to Indians whether through their inclusion as citizens or their exclusion as illegal immigrants. It not merely threatens a loss of citizenship to people declared outsiders, but will depreciate the quality of citizenship for those it includes.
Watch Faizan Mustafa explain these points in the following video:
