ARYAN MANDAL Kolkata India
A BETTER UNDERSTANDING OF THE CAA(CITIZENSHIP AMENDMENT ACT),NRC(NATIONAL REGISTER OF CITIZENS)AND NPR(NATIONAL POPULATION REGISTER)
BY ARYAN MANDAL
What is NRC?
NRC is the National Register of Citizens. The NRC identified illegal immigrants from Assam on the Supreme Court's order. This has been a state-specific exercise to keep its ethnic uniqueness unaltered. But ever since its implementation, there has been a growing demand for its nationwide implementation. Now, many top BJP leaders including Home Minister Amit Shah have proposed that the NRC in Assam be implemented across India. It effectively suggests to bring in a legislation that will enable the government to identify infiltrators who have been living in India illegally, detain them and deport them to where they came from.
NRC in simple terms refers to an official listing of all citizens of this country. The legal basis of NRC is Section 14A of the Citizenship Act, which was made a law in 2003, when the first BJP government under Atal Bihari Vajpayee was in power, and LK Advani was the Home Minister. According to this section, the government can ‘compulsorily register’ all citizens and provide National Identity Cards to them after registration. In order to do this, the government may prepare a National Register of Indian Citizens (NRIC). This is popularly known as the NRC or All India NRC.
What is NPR? Is it connected to NRC? When will it be conducted?
NPR is the National Population Register – a listing of all persons ordinarily resident in India, whether they are citizens or not. While the process of preparing NPR is being carried out by the same department which prepares the census, it has a completely different legal basis and purpose. The Government of India issued a notification on 31st July 2019 stating that the NPR preparation exercise will be done from April – September 2020 according to the Citizenship Rules 2003. These rules the same rules which specify the process by which NRIC or All India NRC will be conducted. According to the Rule 4 of the Citizenship Rules 2003, the first step of NRIC will be a house-to-house collection of information in every locality to prepare a Population Register. All local registers will be combined to form a Sub-Disctrict, then District, then State and then National Population RegistER.
Here is how Census is different from NPR
Census is the largest single source of a variety of statistical information on different characteristics of the people of India, NPR is a register of usual residents of the country.
The NPR is a register of usual residents of the country. It is being prepared at the local (village/sub-town), subdistrict, district, state and national level under provisions of the Citizenship Act, 1955 and the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003.
A usual resident is defined, for the purposes of the NPR, as a person who has resided in a local area for the past six months or more, or a person who intends to reside in that area for the next six months. The law compulsorily seeks to register every citizen of India and issue a national identity card.
The NPR exercise will be carried out between April and September 2020 in all states and UTs, except Assam, along with the house listing phase of the census exercise.
Assam has been excluded because the National Register of Citizens (NRC) exercise has already been conducted in the state.
The objective of the NPR, being carried out under the aegis of the Registrar General and ex-Officio Census Commissioner, India, is to create a comprehensive identity database of every usual resident in the country. The database would contain demographic as well as biometric particulars.
The demographic details of every individual are required for every usual resident: name, relationship to head of household, father's name, mother's name, spouse's name (if married), sex, date of birth, marital status, place of birth, nationality (as declared), present address of usual residence, duration of stay at present address, permanent residential address, occupation, educational qualification.
The data for NPR was last collected in 2010 along with the house listing phase of the Census 2011. Updating of this data was done during 2015 by conducting door to door survey.
A gazette notification for the forthcoming NPR has been published by the central government in August.
On Tuesday, the Union Cabinet approved funds to the tune of over Rs 8,500 crore for the NPR exercise.
The decennial census is the largest single source of a variety of statistical information on different characteristics of the people of India conducted on the basis of the Census Act enacted in 1948.
The census, 2021 will be done in two phases. In the first phase, the work of house-listing or housing census will be conducted from April to September, 2020. In the second phase, the enumeration of population will be done from February 9 to February 28, 2021 with reference moment as 00:00 hours of March 1, 2021.
For snow-bound areas in Jammu and Kashmir, Himachal Pradesh and Uttarakhand, the reference date will be October 1, 2020.
The census is the basis for reviewing the country's progress in the past decade, monitoring the ongoing schemes of the government and plan for the future.
The census provides detailed and authentic information on demography, economic activity, literacy and education, housing and household amenities, urbanisation, fertility and mortality, scheduled castes and scheduled tribes, language, religion, migration, disability besides others.
The enumerators also collect data related to cultivators and agricultural labourers, their sex, occupational classification of workers in non-households industry, trade, business, profession or service by class of worker and sex.
There will be detailed survey on gender and literacy rate, number of towns, slum households and their population.
Information is also collected on sources of potable water, energy, irrigation, method of farming, whether a house is concrete, thatched or others.
With a history of more than 130 years, this reliable, time tested exercise has been bringing out a veritable wealth of statistics every 10 years, beginning from 1872 when the first census was conducted in India non-synchronously in different parts.
The government of India decided in May 1949 to initiate steps for developing systematic collection of statistics on the size of population, its growth, etc., and established an organisation in the Ministry of Home Affairs under Registrar General and ex-Officio Census Commissioner, India.
This organisation was made responsible for generating data on population statistics including vital statistics and census. Later, this office was also entrusted with the responsibility of implementation of Registration of Births and Deaths Act, 1969 in the country.
What is Citizenship (Amendment) Act, 2019?
The Rajya Sabha on December 11, 2019 passed the controversial Citizenship (Amendment) Act with as many as 125 MPs voting in favour of it and 99 against it. On December 9, 2019, the CAB Bill was tabled and passed in the Lok Sabha's Winter Session. President Ram Nath Kovind signed it on December 12.
What is Citizenship (Amendment) Bill, 2019
The Citizenship (Amendment) Bill, 2019 seeks to fast-track citizenship for persecuted minority groups in Pakistan, Bangladesh and Afghanistan. The six minority groups that have been specifically identified are Hindus, Jains, Sikhs, Buddhists, Christians and Parsis. The Bill aims to change the definition of illegal migrants. However, the Act doesn’t have a provision for Muslim sects like Shias and Ahmedis who also face persecution in Pakistan.
The beneficiaries of Citizenship Amendment Bill can reside in any state of the country and the burden of those persecuted migrants will be shared by the whole country.
Presently, the Constitution of India provides for citizenship by naturalisation – for people who have lived in India for the past 12 months and for 11 of the past 14 years. It also provides for people whose parents or grandparents were born in India to become Indian citizens.
Who are illegal immigrants from India perspective?
As per the Citizenship Act, 1955, an illegal immigrant is one who enters India with fake or forged documents and/or does not have a valid passport. A person who stays beyond the visa permit is also referred to as an illegal immigrant.
When did the issue of Citizenship (Amendment) Bill come up?
Prior to the 2014 Lok Sabha elections, the Bharatiya Janata Party (BJP), which was seeking to topple the Congress-led UPA government, promised to grant citizenship to Hindus persecuted in the neighbouring countries. In the party's election manifesto, the BJP promised to give shelter to the Hindus and welcome the refugees.
In the Citizenship Act, 1955 (hereinafter referred to as the principal Act), in section 2, in sub-section (1), in clause (b), the following proviso shall be inserted, namely:— "Provided that any person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh or Pakistan, who entered into India on or before the 31st day of December, 2014 and who has been exempted by the Central Government by or under clause (c) of sub-section (2) of section 3 of the Passport (Entry into India) Act, 1920 or from the application of the provisions of the Foreigners Act, 1946 or any rule or order made thereunder, shall not be treated as illegal migrant for the purposes of this Act;".(EXCERPT FROM THE REAL JUDGEMENT).
CAA does not violate fundamental, legal, secular rights.
The Centre told the Supreme Court that Citizenship (Amendment) Act (CAA), 2019 does not violate any fundamental right or affect the legal, democratic and secular rights of any Indian citizens.
The central government, in its 129-page affidavit in response to the pleas challenging the constitutional validity of CAA, termed the legislation legal and asserted that there was no question of it violating constitutional morality which is not an "unruly horse".
Seeking dismissal of the pleas, it said Indian secularism is "not irreligious", rather it takes cognisance of all religions and promotes comity and brotherhood.
The affidavit, filed by B C Joshi, Director in the Ministry of Home Affairs, said the CAA does not confer any arbitrary and unguided powers on the executive as the citizenship to the persecuted minorities of Pakistan, Afghanistan and Bangladesh would be granted in a manner as specified under the law governing grant of citizenship.
"CAA does not impinge upon any existing right that may have existed prior to the enactment of the amendment and further, in no manner whatsoever, seeks to affect the legal, democratic or secular rights of any of the Indian citizens. The existing regime for obtaining citizenship of India by foreigners of any country is untouched by the CAA and remains the same," it said.
The amended law seeks to grant citizenship to non-Muslim migrants belonging to Hindu, Sikh, Buddhist, Christian, Jain and Parsi communities who came to the country from Pakistan, Bangladesh and Afghanistan on or before December 31, 2014.
A bench headed by Chief Justice S A Bobde had on December 18 last year decided to examine the constitutional validity of the CAA but had refused to stay its operation.
It had sought response of the Centre on over 100 pleas, including those filed by the Indian Union Muslim League (IUML) Congress leader Jairam Ramesh, challenging the CAA.
IUML has said that CAA violates the fundamental Right to Equality and intends to grant citizenship to a section of illegal immigrants by making an exclusion on the basis of religion.
Regarding the petitioners' contention that the amendment is unconstitutional as it applies to six minorities in three countries and there are other minorities there, the government said the Parliament is competent to earmark the religious minorities in the three countries and is not be bound by the declaration of minority status to any other community or sect by them.
It said the history depicts that persecuted minorities in the three countries -- Pakistan, Afganistan and Bangladesh -- were left without any rights and the historical injustice is sought to be remedied by the amendment without taking away or whittling down the right of any other person.
On petitioners' reliance on Article 15 (Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth) and 19 (Protection of certain rights regarding freedom of speech) in their challenge to CAA, the Centre said these rights are available only to Indians and not to illegal migrant or foreigners.
It said that Indians cannot claim rights under Article 15 and Article 19 on behalf of illegal migrant or foreigners.
The Centre termed as "erroneous" the petitioners' assertion that exclusion of Ahamadis, Shias, Bahaiis, Hazras, Jews, Atheists or Baloch communities from the first tier of classification is arbitrary and discriminatory.
"Intra-religious persecutions or sectarian persecution or persecution due to non-recognition of particular sects to be within the fold of majority religion in the said countries, cannot be equated with the persecution of religious minorities admittedly following and practising a different and completely distinct religion than the majority religion in particular neighbouring countries," the affidavit said.
It said CAA results in not granting any kind of exemptions to Tibetan Buddhists from China and Tamil Hindus from Sri Lanka and the assertion that the law attempts to classify the persons belonging only to the Muslim community as 'illegal migrants' has no basis. The claim that CAA is against any particular community is erroneous, unfounded and designedly mischievous, it said.
"The recognition of religious persecution in the particular neighbouring states, which have a specific state religion and long history of religious persecution of minorities, is actually a reinstatement of Indian ideals of secularism, equality and fraternity," it added.
It said CAA seeks to protect 'freedom of religion', which is an invaluable human right, of the classified communities who have been persecuted for expressing and practising their respective religions in the neighbouring countries.
It said the petitioners' claim that requirement for registration of citizenship have been delegated to the executive are "erroneous" as the National Register of Citizens (NRC) does not create any embargo on any form of citizenship.
It claimed that the subject matter may not be within the scope of judicial review and may not be justiciable.
Several petitions have been filed challenging CAA, including by RJD leader Manoj Jha, Trinamool Congress MP Mahua Moitra, AIMIM leader Asaduddin Owaisi.
Other petitioners include Muslim body Jamiat Ulama-i-Hind, All Assam Students Union (AASU), Peace Party, CPI, NGOs 'Rihai Manch' and Citizens Against Hate, advocate M L Sharma, and law students have also approached the apex court challenging the Act.
Where do political parties stand?
The BJP, which rules at the Centre and is in power in 17 states including all in the Northeast, has maintained that the Citizenship Amendment Act is in sync with the policy of the central governments since the days of Pandit Jawaharlal Nehru.
The party has done little than slamming the protesters to soothe the nerves of those out on the streets in the chilly winters in Delhi and elsewhere. Even Prime Minister Narendra Modi pointed to the "clothes" of the protesters while referring to violence in these protests. The government has, however, released a point-wise explainer on the Citizenship Amendment Act.
Union Home Minister and BJP president Amit Shah "assured" that no Indian Muslim needed to worry over the Citizenship Amendment Act. But this assurance has fallen short in addressing the anxiety of the protesters. And, none of the top BJP leaders has reached out to the protesters, particularly from the Muslim community to explain why - repeat why - Muslims need not worry about their identity in India.
The Congress's students wing the NSUI has been part of protests almost everywhere against the Citizenship Amendment Act. From the top leadership, Congress president Sonia Gandhi criticised police action in Jamia campus.
Senior Congress leaders including Rahul Gandhi and Priyanka Gandhi Vadra too opposed the amended Citizenship Act and criticised police action against the protesters. Priyanka Gandhi even sat on a dharna at the India Gate for few hours.
Rahul Gandhi has been largely missing from action against the Citizenship Amendment Act barring a few tweets. This is curious but explainable. Rahul Gandhi had assiduously built his and his family's image as worshippers of Lord Shiva during the Lok Sabha election only six months ago.
Being seen as supporting the "Muslim cause" may backfire. This assessment might be preventing him from taking lead in the protest against the new law. He was already put on the backfoot for choosing a Muslim-dominated constituency for Lok Sabha election after he faced serious challenge at his family bastion of Amethi. The fact that Rahul Gandhi is "on an official visit" outside India seems to be helping him shield him from criticism
Mamata Banerjee was the first chief minister to declare that her government would not implement the Citizenship Amendment Act in Bengal. She even dared the Narendra Modi government to dismiss her government in Bengal for openly saying this.
Not only did Mamata Banerjee decline to implement the Citizenship Amendment Act, rather she ordered to halt the ongoing process to update the National Population Register, a project initiated during the Manmohan Singh government in 2010.
She took out a public march in Kolkata opposing the Citizenship Amendment Act. Mamata Banerjee has called the new law discriminatory and demanded equal protection be given to all irrespective of their religion. This is certainly a shift from her earlier stance when she wanted detection and deportation of illegal immigrants from Bengal.
Now, in the face of protests and violence in the past few days, Mamata Banerjee has made a surprising demand for a referendum on the Citizenship Amendment Bill with United Nations playing as observer. She challenged the BJP to agree to her demand.
HENCE WE CAN DERIVE THERE ARE A HUGE NUMBER OF PROTESTS BEING CARRIED OUT IN THE COUNTRY AGAINST THESE THREE ACTS AND THE PARTIES LIKE TMC AND CONGRESS ARE USING THE MUSLIMS FOR PROPAGANDA FOR WINNING OVER THE NEXT NATIONWIDE ELECTIONS.
Why CAA is not against the Constitution?
There is more rhetoric than legal reasoning in the contention that the law is against secularism and the Constitution’s basic structure
There has been much ado about the amendment to the Citizenship Act. It has been attacked as unconstitutional. At first blush the law may appear to be discriminatory and unconstitutional, but such a charge does not stand closer scrutiny. The amendment essentially seeks to facilitate religious minorities in the named countries that have a state religion acquire Indian citizenship.
The constitutional interpretation and exposition of Article 14 is well settled. The amendment does not violate Article 14. Laws may classify. The seemingly contradictory demands of legislative specialisation and constitutional generality have been resolved by the doctrine of reasonable classification. It is one that includes all persons who are similarly situated with respect to the purpose of the law. In the present case there is a reasonable, valid classification of persons of religious minorities in the three-named theocratic states who came to India before a cut-off date.
hey are not treated as illegal migrants and special provisions are made as to their citizenship as a one-time measure. The amendment would help 31,313 persons who belong to this category as per figures furnished by the Intelligence Bureau to the Joint Parliamentary Committee. The law is criticised for not including Muslims from these countries as also persecuted persons in other neighbours. It is said that as a fact no Muslim from any of these or other countries has come to India seeking refuge.
Certain constitutional fundamentals are well established. There is always a presumption in favour of the constitutionality of a statute—that the legislature understands and correctly appreciates the needs of its people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds. To sustain this presumption, the court may take into account matters of common knowledge and history and assume every state of facts that can be conceived existing at the time of the legislation. A legislature acting within its domain is not bound to extend its laws to all. It is free to recognise degrees of harm and confine its laws to those where the need seemed to be clearest.
As society becomes more complicated, the greater is the diversity of its problems and more does legislation direct itself to such diversities. Law reflects distinctions that exist in fact or at least appear to exist in the judgment of the legislature. The legislature, for dealing with complex problems that arise out of an infinite variety of human relations, cannot but proceed upon some sort of classification of persons upon whom the legislation is to operate. As Justice Felix Frankfurter observed, “Laws are not abstract propositions but expressions of policy arising out of specific difficulties, addressed to the attainment of specific ends by the use of specific remedies.” When there is a classification, the court will not hold it invalid merely since the law might have been extended to others who might resemble the class for which the law is made.
This settled legal position leads to the inevitable conclusion that the law does not fall foul of Article 14. Else, we would be proving Nobel laureate Anatole France right that the law in its majestic equality forbids the rich as well as the poor to sleep under bridges and to beg in the streets. “Bare equality of treatment regardless of the inequality of realities, is neither justice nor homage to the constitutional principle.” Appeal to Article 25 as a ground of attack is equally misconceived and puerile. The locus is not simply technical. No rights of those who assail the law have been violated. No foreigner has a right to claim Indian citizenship or an easier means of acquiring it.
There is more rhetoric than legal reasoning in the contention that the law is against secularism and infringes the Constitution’s basic structure. A law can be invalidated only on the ground of lack of legislative competence or violation of any constitutional provision. Neither ground is present here. Any law regarding citizenship is within the exclusive domain of Parliament and this amendment does not infringe any constitutional provision. The basic structure doctrine is available to challenge a constitutional amendment alone and not ordinary legislation though there may be some judicial gratis dicta to the contrary stated with flourish which do not represent the correct and settled legal position.
Justice Benjamin Cardozo’s remarks come home with a strange poignancy: “The half-truths of one generation tend at times to perpetuate themselves in law as the whole truths of another, when constant repetition brings it about that qualifications taken once for granted are disregarded or forgotten.”
The amendment does not take away any Indian’s citizenship, it does not exclude anyone but does not include some within its ken. The court is concerned only with the constitutionality of a law; it ought not to be confused with its wisdom, morality or desirability, which is not the court’s concern.
OPOOSITION IS A PART OF A DEMOCRACY WHICH IS A PART OF THE INDIAN PREAMBLE WHICH PEOPLE HAVE GIVEN TO THEMSELVES AS ON 26TH JANUARY 1950:
While this is the legal position and people should not be misled or misinformed, it is wrong to describe those who oppose this as anti-national. Discussion and dissent are the very life breath of democracy. But no democracy can afford or support violence. Both violent protests and putting down dissent are a negation of democracy. The government is duty-bound to discuss, inform and educate the nation.
The amendment does not require the approval of any state. They have no role and some CMs opposing it is wholly irrelevant. Persons occupying constitutional positions threatening not to obey and implement it is very disturbing. It amounts to a breach of the constitutional oath of office that would render them unworthy and ineligible for public office. It also amounts to failure of the constitutional machinery inviting remedial action under the Constitution. We would do well to recall Rousseau’s admonition: “The first of all laws is to respect the laws.”
THE HINDU PUBLICPOLICY DEPARTMENT.
THE TIMES OF INDIA.
THE BUSINESS STANDARD.
BAR AND BENCH.
THE TELEGRAPH INDIA.
THE ECONOMIC TIMES.