The government claims not a single bullet is fired at protesters. More than 22 protesters are killed. The government claims CAA is not linked with NRC and NRC has nothing to do with NPR. And these are just a few headlines that this landmark legislation has managed to make. Here’s a deep dive into the act with the surprise around. Authored by a veteran, educationalist and indeed a trend setter when it comes to legal brainstorming. Prof. M. Sridhar Acharyulu Is ‘Statelessness’ Staring at Us?
The Citizenship Amendment Act (CAA) 2019 is now the complete law if Rules are made it will give powers to Government to confer citizenship on a fast track to persecuted minorities who came to India before 31st December 2014 belonging to six prescribed religions from three specified states if they resided five years in India. By exclusion, the CAA proclaims that Muslims who came to India from Pakistan, Bangladesh and Afghanistan will not be given citizenship. With CAA in the back, the Registration of citizens and registration of peoples’ information (NRC and NPR) the question that arises is: Are you an Indian or Doubtful Citizen or Foreigner?
Several lakhs of people and youth are coming on to streets to oppose the CAA, NRC and NPR combine, which is attacking the secular character of citizenship of India, creating a new class of ‘Doubtful Citizens’ and throws huge chunk of population into the danger of ‘statelessness’ who will be detained in detention centers to be deported to other countries. Will India remain a secular Republic?
A hypothetical situation is: If a person belonging to Hindu, Christian, Jain, Sikh, Boudha, Parsi comes into India from Pakistan or Bangladesh to settle with his relations or friends if separated in 1947 or after, he will be welcomed with conferment of citizenship of India; but if a Muslim comes, no. Article 14 mandates equality as a fundamental right to all ‘persons’; then it is violated. If Article 14 is interpreted to be confined to citizens, there is no violation.
Home Minister argued saying Muslims of these Islamic countries, where Islam is the state religion, are not minorities, and there is no scope of their persecution; hence they would not fall under the ‘reasonable classification’ of persecuted ‘minorities’. The contention has no answer to the point that if that Muslim wants to join his pre-1947 relatives or friends, he could be part of the minority in India.
From plain words of Article 14, one can understand that it accords equality right to ‘persons’, while Articles 15 and 16, which specify a duty not to discriminate mentions the citizens. The CAA strikes at this basic level of equality among persons and does not allow some equally footed persons to become a citizen of India.
Citizenship Act 1955 gives a detailed process of conferring citizenship according to Articles 5 to 11 of the Constitution of India. Article 5 says at the commencement of this Constitution, every person who has his domicile in the territory of India and— (a) who was born in the territory of India; or (b) either of whose parents was born in the territory of India; or (c) who has been ordinarily resident in the territory of India for not less than five years immediately preceding such commencement, shall be a citizen of India.
Article 6 gave rights of citizenship to persons who have migrated to India from Pakistan at the commencement of this Constitution if he or either of his parents or any of his grand-parents was born in India as defined in the Government of India Act, 1935 and in case where such person has so migrated before 19th July 1948 has been since ordinarily resident in India, or where he migrated after that date, he was granted citizenship on his application before the commencement of the Constitution. Such a person should have been a resident of India at least six months immediately preceding the date of application.
Article 7 says that a person who has after the first day of March 1947, migrated from the territory of India to the territory now included in Pakistan shall not be deemed to be a citizen of India:
Article 8 says any person who or either of whose parents or any of whose grandparents were born in India, and who is ordinarily residing outside India shall be deemed to be citizen of India, if he is registered as citizen by the diplomatic or consular representative of India in such country, on his application either before or after commencement of Constitution.
Article 9 says any person who becomes a citizen of another country, loses Indian citizenship by virtue of Article 5, 6 or 8.
Article 10 says every person who citizen of India shall continue to be so subject to provisions of any law that may be made by Parliament.
Article 11 says Parliament has the power to make any provision with respect to the acquisition and termination of citizenship and all other matters relating to citizenship. The NDA Government invoked the power under Article 11 to pass the Citizenship Act 1955 and amendments to it.
Citizenship Act of 1955 deals with the acquisition and termination of citizenship after the commencement of the Constitution. Salient features are:
The Citizenship (Amendment) Act of 1986: This act specifically deals with the citizenship of the state of Assam. It mentions that illegal migrants to get citizenship need to be registered with Indian consulate in a prescribed format.
The Citizenship (Amendment) Act of 1992: According to this Act any person born outside India is considered a citizen of India by virtue of Citizenship by Descent if either of the parents was a citizen at the time of his birth.
The Citizenship (Amendment) Act of 2003: This Act introduces several provisions for overseas citizens regarding their registration, rights in India, etc.
The Citizenship (Amendment) Act of 2005: This Act is based on the recommendations of the Parliamentary Standing Committee on Home Affairs. It provides for dual citizenship to PIO’s of 16 countries.
The entire objective of the Constitutional foundation of Indian citizenship codified in Articles 5 to 11 is to allow the Indians prior to 1947 to acquire citizenship of India even after 1947. It does not discriminate against the criteria of religion. The earlier amendments also retained that character.
The Citizenship (Amendment Act) 2019: That objective is based on the secular credentials of the Indian Republic, which is breached by CAA.
There are five methods of becoming a citizen: by birth, descent, naturalization, registration, territorial incorporation. In none of these is religion mentioned. The Constitutional definition of Citizenship does not differentiate or discriminate against any person on grounds of religious belief or caste, class or gender in acquiring citizenship in India. The CAA changes this by an amendment in section 1 b on illegal immigrants. The term “illegal immigrants” was introduced in 2003. It did not define an illegal immigrant by religion. The present Government has done it now. The CAA amends Sec 1 b to include “any person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh or Pakistan who entered India on or before December 2014 will not be considered an illegal immigrant.”
The number of years required to be a resident in India to be eligible to apply for citizenship is also changed. The citizenship by naturalization process is explained in Sec 6.1 of the original Act of 1955, with further details of qualification for naturalization in Schedule III of the Act. It states that any person who has been a resident of India for the preceding eleven years is eligible for citizenship by naturalization. Again, there is no mention of religion. CAA reduces the number of years of residency required to five years for those coming from the three specified countries, except Muslims.
In 2015 the Centre in a surreptitious manner made changes to the Passports Act 1920 and Foreigner’s Act 1946 to allow non-Muslim refugees from these countries to stay back in even if they entered the country without valid documents. These amendments permitted the same selected religious persons to stay on in India if they had come before Dec 31, 2014. The same language and provisions are introduced in CAA.
The most significant aspect of the CAA lies in unstated point i.e., Muslims, who are excluded from the list. Muslim refugees from Afghanistan, Bangladesh and Pakistan cannot get citizenship in India. Home Minister denied the allegations of discrimination against Muslims saying Muslims are not minorities but majorities in these three Islamic republics. Home Minister made a controversial statement that the Partition in 1947 was on religious lines. He said that NDA has been committed to protect and offer citizenship to minorities persecuted in Pakistan and Bangladesh since 1947.
This ‘amendment’ also relaxes the provisions for citizenship by naturalization, i.e., the requirement of residence in India from 11 years to 6 years for these migrants. Following severe protests and political opposition in northeast states, the bill exempted the tribal areas of Assam, Meghalaya, Mizoram, and Tripura, included in the Sixth Schedule to the Constitution from its applicability. These tribal areas include Karbi Anglong in Assam, Garo Hills in Meghalaya, Chakma district in Mizoram, and Tribal Areas district in Tripura. It also exempted the areas regulated through the Inner Line Permit which includes Arunachal Pradesh, Mizoram and Nagaland. The opposition against the bill fears that the demography of Northeast India will change with the influx of migrants from Bangladesh.
There are new provisions for cancellation the registration of Overseas Citizenship of India (OCI) for reasons of registration through fraud, or if he sentenced to imprisonment for two or more years within five years of registration and in necessity in the interest of sovereignty and security of India, or for any violation of any law notified by the central government. Though the bill facilitated an opportunity for the OCI holder to be heard before the cancellation, it raised apprehensions about the selective cancellation of citizenship.
When Akhand Bharat (including Afghanistan, Pakistan, Bangladesh), is the ultimate target of Hindutwa forces, does it mean it does not include Muslims in these three countries? When Muslims in India could be part of Akhand Bharat why Muslims in these three countries could be excluded? Or are we going to send Muslims out of India into these Islamic republic nations to achieve Hindu Akhand Bharat?
There are two strong indicators: 1. The NRC empowered the officers to eliminate them from the register of Citizens. 2. The CAA does not allow Muslims from Akhand Bharat before Independence to become citizens, and in addition, CAA empowers the administrators to remove the citizenship on the grounds of violation of the law.
If the partition of India was purely on the ground of religion, as criticized by Amit Shah, are we aiming to build Bharath and finally Akhand Bharat without Muslims? Does Akhand Bharat mean the mere union of territories without some of its people? Are we attempting the Re-Constitution of India at the 70th year of the Indian Constitution without its original values and structure or de-Constitution of India?
The argument that Muslims from three Islamic states also can become citizens of India, as per the original citizenship Act by naturalization by residing for 11 years, may not stand because the Government can use its executive powers or discretion either to deny also. If a migrant remains in India for 11 years, he can be denied citizenship under CAA! For instance, if Muslims of Shia or Ahmadiya sect come from Pakistan or Bangladesh, Rohingyas from Myanmar, Tamilians from Sri Lanka, Hindu & Sikh persons came from Bangladesh, Afghanistan & Pakistan for more than 11 years, Indian Government can deny citizenship to Muslims, Rohingyas, Ahmadiyas and Tamilians and welcome Hindus and Sikhs. How can anybody justify this position as non-discriminatory and equal? The right to secure Indian citizenship under pre-amended law is denied under the ‘amendment’. How can anyone explain this?
The CAA has challenged in around 50 writ petitions as unconstitutional. The criticism is that it affects the secular fabric of the nation is the basic feature of Indian polity, constitution and culture of plurality. The original Citizenship Act or CAA will apply to persons residing in India for a prescribed period. While the original Act is in tune with secular values of citizenship enshrined in Articles 5 to 11, the CAA breaches it.
Interestingly the Research and Analysis Wing told the Joint Committee of Parliament that this Bill could be misused by foreign agents to infiltrate India (from agencies like Pakistan’s ISI) and that it could become ‘legal framework’ which could be misused. It also attracted opposition from a global organization the US Commission on International Religious Freedom (USCIRF) which called for sanctions against the Home Minister or other principal leaders over this Bill. This Commission cautioned: “In conjunction with the ongoing National Register of Citizens (NRC) process in Assam and nationwide NRC that the Home Minister seeks to propose, USCIRF fears that the Indian government is creating a religious test for Indian citizenship that would strip citizenship from millions of Muslims”. The Ministry of External Affairs Ministry has condemned saying neither the CAB or National Register of Citizens (NRC) process seeks to strip citizenship from any Indian citizen based on any faith. The Pakistan Prime Minister Imran Khan criticized the proposed citizenship law for violating bilateral agreements.
The research organisation PRS Legislative Research pointed out a serious lacunae in CAA based on Article 14 that grants right to equality and against discrimination on grounds of religion, is that the Bill provides differential treatment to illegal migrants on the basis of their country of origin, religion, date of entry into India, and place of residence in India (regarding exempted northeast India regions).
The CAA does not include all persecuted minorities. The main criticism against the Bill is that it excludes the religiously persecuted minorities of neighbouring nations such as Rohingyas in Myanmar and Tamils in Sri Lanka. The inclusion of only six specified religious minorities and exclusion of other minorities facing religious persecution, such as Ahmadiyyas in Pakistan and the atheists in Bangladesh, is questioned as a breach of equality right.
PRS Legislative Research has rightly pointed out that the ability to notify any law and lack of clarity of these laws whose violation may result in OCI (Overseas Citizenship of India) cancellation may amount to an excessive delegation of powers by the legislature and may give wide discretion to the government for cancellation of OCI.
Within a few hours of the passage of CAA, the US House Foreign Affairs Committee (HFAC) tweeted concern that it “undermines the most basic democratic tenet” of religious pluralism. The panel pointed out that any religious test for citizenship would be contrary to religious pluralism which was described as “one of our core shared values”. Responding to a query of co-chair Democrat Brad Sherman about discrimination against Muslims on the issue of citizenship, assistant secretary for the Bureau of Democracy, Human Rights and Labour Robert Destro acknowledged that it gives a presumption of citizenship to some religious groups and leaves Muslims out. Sherman has reportedly commented “is this a serious legislative proposal or a just a crackpot idea going nowhere?” The senior US diplomat replied that it was indeed “a serious legislative proposal”. But he was hoping that Bill would not go through the upper house”.
Northeast is continuously protesting the CAA, as the region’s demography will get totally disturbed and increase the burden on resources, decrease employment opportunities for indigenous people. Moreover, it will nullify the provisions of the Assam Accord of 1985 which fixed March 24, 1971, as the cut-off date for deportation of all illegal immigrants irrespective of religion. This Accord does not discriminate immigrants on religious grounds. Assam Accord brought peace to that region because of this secular character. It disturbed the peace in Assam because this accord is totally breached. As the results of the National Register of Citizens were not conducive to the Hindutwa agenda of NDA, the CAA has been contemplated. NRC is effectively brought to create a demographic picture that NDA desired and promised. The NRC exercise helps the officers to eliminate the Muslims from the Bangla Immigrants against the letter and spirit of the Assam Accord. And CAA further strengthens the agenda as all non-Muslims from Pakistan and Bangladesh will simply get Indian citizenship after a six-year stay here. Muslims do not get this chance.
Badri Raina, a critic analyzed it: “The presumption also is that since many Muslims chose to leave India in 1947, a remaining “Hindu” India has no obligation to take any back. Thus if Ahmadiyas, Shias, or Baluchis continue to be persecuted in Pakistan, or Hazaras in Afghanistan and the Rohingya in Myanmar for example, as inauthentic, or non-Muslims, they too may not claim refugee status in India”. The NDA government did not care to include Tamilians even if they include Muslim Tamilians also, of Sri Lanka in the new law offering citizenship.
While the Indian citizenship to immigrants from neighbouring countries residing in India became controversial, the native Indians are facing a new problem of bearing the burden of proving their citizenship because of the Centres’ decision to implement National Register for Citizenship. Earlier amendment empowers the Centre to go for registering the citizens in India, with a purpose to identify noncitizens or foreigners staying beyond permission. Generally, it appears that native Indians have nothing to worry.
The way implementation of National Register for Citizens created havoc in Assam raises all sorts of apprehensions. The experience of NRC in Assam was very painful to both Hindus and Muslims. While majority people were fortunate to be declared as citizens of India, more than 19 lakh people were declared as foreigners. They are fighting their fight in Foreigner’s Tribunals. Most of the persons in Assam are feeling threatened with statelessness – which is very dangerous than having no ration card, aadhaar card or voter card. He or she is facing challenge to their existence, the basic and natural right of being an Indian. Is he/she an Indian? The implications are serious. It is claimed that the CAA will be a boon for the Hindu ‘foreigners’ among 19 lakhs declared as non-citizens. It’s uncertain. Assuming so, what will be the plight of about other 13 lakh people including 5 lakh Muslims? If Foreign tribunals agree with Babus that they are not citizens, where should they go? How long they should remain in detention centres? Which country will accept them? Will authorities declare or certify that such ‘foreigner’ belongs to so and so nation and send them back?
If 19 lakh people failed in Assam, how many crores will fail in whole India? What evidence will be convincing the clerks, bureaucrats or Babus who take up the process of registering the Citizens? Its feared that people, including Muslims, will be excluded due to absence of documents, or deficiencies in documents like spelling mistakes. This happened with many applicants (both Hindu and Muslim) during the NRC process in Assam. MP Asaduddeen Owaisee asked: “Why should I stand in queue and tell that I am an Indian? I have been born in this land. I am a citizen (of India). All 100 crore Indians must stand in a queue (to submit proof of citizenship). This is not just the issue of Muslims but an issue concerning all Indians. I am telling CAA supporters also. You also have to stand in queue and bring documents…” He also claimed that Assam Minister Himanta Biswa Sarma was hoping that 5.40 lakh Bengali Hindus in Assam will get citizenship through CAA, but five lakh Muslims would be deprived of the same. Why are we protesting? His apprehension is: “We are protesting because, in the country, in the name of religion, preparation is being made to make us not just second-class citizens but stateless.”
The centre has tried delinking the CAA from its earlier statements of nationalizing the NRC plan. Prime Minister, Home Minister, Ministers of State for Home gave assurances. G. Kishan Reddy said the government has not decided when the exercise would begin or what its modalities would be. “The draft is also not yet prepared. Neither the cabinet nor the legal department has approved it. NRC is not going to happen immediately. Some people in the name of NRC are trying to spread fear,” he said. Mukthas Abbas Naquvi assured that national NRC is now not contemplated. there “has so far been no discussion on the (NRC) matter at any level of government” as of now and that there is “no plan for a nationwide NRC” yet…NRC is limited to Assam. There is no plan of NRC in any other part of the country. You are talking about an unborn baby…Spreading rumours about it.” He further said: “Who is NRC for? It is for Indian nationals. Does it say it is only about Indian Muslims? No, it does not. NRC, if it at all happens…no government can do it surreptitiously. That is why the government has clarified, issued advertisements and said that there is no process on that yet, no discussion at any level in the government so far on a nationwide NRC.” This is a U turn from the earlier stand of Union Home Minister who has been declaring in almost all election rallies and interviews that a nationwide NRC is in the works and the government will drive out illegal immigrants.
On December 9, Home Minister Amit Shah told Parliament also that a nationwide NRC was on the cards. He distinguished it from the new citizenship law and said the NRC will have no religious filter. He agreed that there is religious filter in offering the citizenship to immigrants who have already residing in India. The BJP’s National General Secretary Ram Madhav says “It’s premature to talk about NRC as the government has not yet made any details about it available”.
Today in Assam or West Bengal, a Bengali Hindu can claim to be from Bangladesh. In other parts of India, as per CAA, can any person claim to be immigrant from Bangladesh, Pakistan and Afghanistan? For instance, if a person cannot meet the eligibility criteria for NRC, once those are finalised, he might lose citizenship.
Another worrying factor is the prospect of detention centres, whether they are existing and going to be established to house those who could not produce necessary documents. Assam already has six detention centres attached to jails and is setting up an exclusive one in Goalpara. Mumbai and Bengaluru detention centres are being set up this year.
Afghanistan law provided for naturalisation Process, i.e., the people without Afghan citizenship or foreign citizens can apply for Afghan citizenship. As per Article 15 an applicant of 18 years lived in Islamic Emirates of Afghanistan IEA for five years, not committed any crime can acquire citizenship through application. Article 9 (1) of Afghan law says obtaining citizenship of the IEA, deprivation from it or losing it can take place only if it is compatible with the tenets and principals of Islam. That means in citizenship is accorded on the count of religion. And India is incorporating a similar criterion for citizenship!
The Citizenship Amendment Act 2019 of India did not include all neighbouring countries to fast-track citizenship grant to immigrants. Sri Lanka is a significant exclusion, because of which Hindus and Christians of island country may not become citizens of India, though the immigrants of these communities coming from Pakistan, Bangladesh, and Afghanistan could become. It also means another discrimination- immigrants from Southern neighbours to India were denied the benefits offered to those from Northern neighbours. The CAA thus has a potential of dividing people by region (south) and religion, while the migrants from Sri Lanka, Myanmar and Nepal of South Asia excluded. Over 100,000 Sri Lankan refugees are estimated to be living in South India, having fled the country during the war from the 1980s onwards. Though armed hostilities ended in 2009, their return was a slow process. Sri Lanka enacted the Grant of Citizenship to Persons of Indian Origin (Amendment) Act 2009 to remedy this problem. Due to lack of documentation, lapse of huge time and strict implementation of the provisions of the Act, it was highly difficult to establish their residence in Sri Lanka prior to becoming refugees. Furthermore, children of citizens born in these refugee camps have not been able to register their births in accordance with section 5(2) of the Citizenship Act 1948 of Sri Lanka, which is compulsory. Especially in relation to the costs associated with registration and in absence of adequate documents to establish their parents’ citizenship, caused greater difficulties and citizenship impossible to get. Around 60 thousand refugees are in camps in southern Tamil Nadu state, mostly Hindus or Christians whose forefathers were also born in India. Many were sent by the British as indentured labourers on Sri Lankan tea plantations. Some 25,000 children were also born in the camps. They do not know any country but India, but now they may have no choice but to go to Sri Lanka. In Tamil Nadu, the refugees get free education, healthcare, rations and a modest allowance but they have limited access to jobs and cannot get official documents. The decision to exclude certain marginalised groups from the CAA was criticised as extremely disturbing.
The Truth: Persons residing in India are discriminated as Hindus and Muslims: breach of Secular character, Article 14, and other rights of minorities.
The Truth: They are closely connected. April 2019: Amit Shah said, “First the CAB will come. All refugees will get citizenship. Then NRC will come. This is why refugees should not worry, but infiltrators should. Understand the chronology—CAB will come and then NRC. NRC is not just for Bengal, it’s for the entire country.” December 9, 2019: Amit Shah said in Parliament that a nationwide NRC would follow the passing of the CAA. During the debate on CAA in Lok Sabha, he said, “We will bring the NRC across the country. Not a single infiltrator will be spared.” December 19, 2019: JP Nadda, the BJP Working President, stated that the CAA would be implemented and, “going forward, NRC also will be brought in”. He continued, “India is marching ahead under Prime Minister Narendra Modi and will continue to do so. The Citizenship (Amendment) Act will be implemented, so will the NRC in future.”
The Truth: June 20, 2019, President addressing Joint Session of Parliament said: “Illegal infiltrators pose a major threat to our internal security. This is leading to social imbalance and putting a huge pressure on limited livelihood opportunities. My government has decided to implement the process of National Register of Citizens on a priority basis in areas affected by infiltrators… While on the one hand Government is working to identify the infiltrators, on the other it is also fully committed to protecting the victims of persecution due to their faith.” November 21, 2019: Amit Shah said in the Rajya Sabha, “The process of National Register of Citizens (NRC) will be carried out across the country.” Was this statement made without discussion?
The Truth: The NRC was made part of law in 2003 by amendment to Citizenship Act. It added the Clause 14a saying: Clause 14a (2) The Central Government may maintain a National Register of Indian Citizens and for that purpose establish a National Registration Authority. (3) …The Registrar General of India shall act as the National Registration Authority and he shall function as the Registrar General of Citizen Registration.” The process to establish NRC was mentioned in the Rules which were adopted in 2003.
The Truth: It has been notified in the official gazette. The process of preparing a nation-wide NRC began with a gazette notification of July 31, 2019. The notification said: “In pursuance of subrule (4) of rule 3 of the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003, the Central Government hereby decides to prepare and update the Population Register (PR) and the field work for house to house enumeration throughout the country except Assam for collection of information relating to all persons who are usually residing within the jurisdiction of local registrar shall be undertaken between the 1st day of April 2020 to 30th September, 2020.” On July 23, 2014 Minister of State for Home Affairs told the Parliament: “The Government has now decided to create the National Register of Indian Citizens based on the information collected under the scheme of NPR by verifying the citizenship status of all individuals in the country.” The notification for preparing and updating the NPR was issued by the Registrar General of Citizen Registration on July 31, 2019 through a gazette notification, that the house-to-house enumeration will start from April 1 to September 30, 2020.
The Truth: The Rules notified in 2003 for NRC state that the process will begin with the house-to-house enumeration for the creation of a National Population Register NPR. The Rules for the NRC in Clause 4 says “a population register will be prepared by collecting information relating to all persons who are usually residing within the jurisdiction of the local registrar. The local register of Indian citizens (as part of the national register) shall contain details of persons after due verification made from the population register.” It means NRC will be completed only after verification of Population Register. Rule 3 of Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003, (2003 Rules) mentioned in the gazette, is about the concept of “NRIC and its sub-rule (4) provides for “Preparation of the National Register of Indian Citizens”. The “population register” the gazette notification mentions the first step towards preparing the NRIC. This is what the sub-rule (5) of Rule 3 of the 2003 Rules says: “The Local Register of Indian citizens shall contain details of persons after due verification made from the population register.”
The Truth: The Home ministry said in its annual report of 2018-2019. In Ch 15, para 15. 40 it is stated “Government of India has approved a scheme of creation of National Population Register (NPR) in the country by collecting specific information of all usual residents. NPR is the first step towards creation of National Register of Indian Citizen (NRIC). The demographic data for NPR collected in 2010 has been updated in 2015. Biometric Enrolment of 33.43 crore persons has also been done under the scheme”.
The Truth: Answer of Home Ministry in Rajya Sabha in November 2019: In Assam detention camps, where suspected immigrants are confined, 28 people have died, and 988 “foreigners” were lodged in six detention centres in Assam.
Answer of Home Ministry in Rajya Sabha on December 11, 2019: The instructions have been issued to all states for setting up detention centres to detain illegal migrants or convicted foreigners pending deportation. The Central government on 9.1.2019 sent consolidated instructions for the construction of detention centres to all state/union administrators. The Ministry of Home Affairs sent instructions on 24/29 April 2014 and again on 9-10 September 2014. On this basis, a model detention centre/holding centre/camp manual was issued to all states/union territories in 2018.
In an Affidavit of the Central government told the Karnataka High Court on November 28, “We have written to all state governments in 2014 and follow-up letter in 2018 to have detention centres to house foreign nationals illegally staying in India”.
According to MHA’s answer to the Lok Sabha on July 9, 2019 (Question Number 2660) the detention centre in Goalpara of Assam, housing 267 detainees and another one at a cost of Rs 46.51 crore was sanctioned. Karnataka already directed construction of detention centres. Fadnavis Government in Maharashtra had earmarked sites for detention centres.
For one detention centre, MHA sanctioned Rs 46.51 crore and this detention centre would house 3,000 detainees. MHA estimates that total detention centres needed are 26,658 at a total cost of Rs 12.4 lakh crore that amounts to 8.8% of GDP in Financial Year of 2019).
The Truth: The Home Ministry declared that citizenship is not automatically accorded to people. It is presumed that each person is not citizen, and the burden is on each to prove that he/she is Indian. Assam experience shows that if 3.1 crore could prove their nationality, 19 lakh plus failed, who might end up in detention centres, denial of voting rights and all other benefits, deportation and if no other country accepts them, they will be languishing as ‘stateless’ persons. If in the same proposition, a few crore people will face the threat of becoming stateless.
The Central Government has added six new questions that citizens have to answer bringing up the total questions in the first phase to 21 in making NPR. The original 15 questions related to demographic data such as name, age, sex, relationship in household, nationality, educational qualifications, occupation, date of birth, marital status, residential address, birthplace and mother tongue. The new 6 questions include name of the father and mother, their places and dates of birth. and the details of Aadhaar. The Aadhaar information will then be crosschecked with the Unique Identification Authority of India (UIDAI) for verification of the individual’s biometrics.
A Government sourced document listing 13 questions and answers clarifying the doubts on CAA titled “Here are the real facts on Citizenship Amendment Act” stated that voter IDs be treated as proof of citizenship. Then on 20 December 2019 the top Ministry of Home Affairs, Government of India spokes-person issued a further clarification that Aadhaar, Voter ID card and Passport are not citizenship documents. Spokesperson further said: No one will get Indian citizenship automatically. One has to prove eligibility. There is no intention to throw people out. People are over-worried. Law has sufficient safeguard”, and “Citizenship of India may be proved by giving any document relating to the date of birth or place of birth or both. Such a list is likely to include a lot of common documents to ensure that no citizen is unduly harassed or put to inconvenience.”
There are around 6.6 crore Indians were given passports. As per international law, a passport is considered a basic identity document issued by the country to its citizens for purpose of international travel. Confirming the Home Ministry’s statement, the Ministry of External Affairs official also stated “passport is not proof of citizenship. Citizenship proof can get you a passport but not the obverse.”
The President of India requests passage for the ‘bearer’ of the Passport, which is contained in the first page of the Indian passport booklet. In its third page, the photograph of the passport holder is fixed. There is a window for his/her ‘Nationality’, wherein the simple entry will be ‘Indian”. International Law experts consider that pass port is prima facie evidence of nationality and it is normally accepted for immigration and police purpose. Passport is thus proof of nationality and citizenship of the holder. Not only internationally, but also within the nation, passports are recognized as proof of citizenship. Passports Act 1967 has a long title which says that it provides for issue of passports to citizens of India and ‘other persons’, but nowhere it explained ‘other persons’. However, several clauses indicate that passport will be granted only to citizens of India.
Under section 6 (2), the first condition for the passport authority to refuse to issue a passport is “that the applicant is not a citizen of India”. Besides, the penalties section defines one of the offences as making an application or obtaining a passport by suppressing information or holding a forging passport “despite not being a citizen of India”. Till the fraud is detected, it is presumed that passports are valid. If the fraud is detected the passport can be cancelled.
Delhi High Court in Prabhleen Kaur vs Union of India & Anr on 3 October, 2018 recognised that ‘a passport is a document evidencing a citizen’s nationality and cannot be ignored on mere suspicions. India is also a signatory to the Universal Declaration of Human Rights, 1948. Article 15 of the said treaty expressly provides that everyone has a right to one nationality. In the facts of this case, the only nationality that the petitioner can have is Indian. Thus, denial of the same would also fall foul of the Universal Declaration of Human Rights, 1948.
Still, the Home and External Affairs Ministries are not ready to accept Passport as evidence of citizenship. This can pose serious problems for the people to prove their citizenship despite having the passport. If the passport holders themselves could not be considered, which document can get the people, the citizenship?
In fact, the people underwent strict scrutiny of several documents to secure Voter Cards, Ration Cards, Pan cards and passports. They have given biometrics and iris scans also to obtain Aadhaar cards. It is reasonable to seek citizenship to all these cards holders, amounting to around 90 per cent of population.
Section 9 of the Aadhaar Act states that the Aadhaar number or the authentication thereof shall not, by itself, confer any right of, or be proof of citizenship or domicile.
Critiques observed that it would be a futile, expensive and cumbersome exercise to certify the ‘citizenship” for NRC in addition. When people gave so many personal details to so many agencies, why should still they be suspected and asked to prove citizenship? What else they must show to prove that they are Indians? People are embroiled in fear of exclusion from citizenship because of the decision of the centre for implementing the National Registration for Citizenship.
Shocked at the serious protests all over the country, the PM addressed a rally and said there was no discussion about NRC and it was not connected with CAA. But the statements made by Home Minister in contradiction to this PM’s statement were produced by Media.
The above tweet is removed by the BJP after lakhs of people came on to street to protest.
Congress leader Gaurav Gogoi tweeted five days ago: “Home Minister Amit Shah has stated in his press conference in West Bengal that CAB and NRC go hand-in-hand, chronologically first CAB for refugees and then NRC for infiltrators. BJP leaders have expressed that those excluded from final NRC will lose their voting rights.”
While the government was out to de-link the two, BJP’s working President J.P. Nadda claimed, “We have not only brought Citizenship Amendment Act, we will also bring (nationwide) NRC.”
There is a clear link between NPR, NRC and CAA through expression “illegal migrant” and NRIC brought in through the CAA of 2003.
The Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003 defines Population Register as: “Population Register means the register containing details of persons usually residing in a village or rural area or town or ward or demarcated area (demarcated by the Registrar General of Citizen Registration) within a ward in a town or urban area”.
About NRIC, it says: “National Register of Indian Citizens means the register containing details of Indian citizens living in India and outside India”. NRIC would be divided into four sub-parts:
In the NRIC process “The draft of the local register of Indian citizens shall be published by the sub-district or Taluk Registrar, for inviting any objections or for inclusion…” (sub-rule (6) (a) of Rule 4 of the 2003 Rules).
The census details like names of people, their address or other details are not published or used for any other process. Besides, the census is carried out under a different law – the Census Act of 1948.
But PR/NPR and NRIC are being carried out under the Citizenship Act of 1955, the Citizenship (Amendment) Act (CAA of 2003) and the 2003 Rules. The CAA (of 2019) specifically excludes Muslims by not stating it in list of acceptable religions, from granting citizenship to “illegal migrants”.
Home Ministry has circulated certain pro-forma to district magistrates and additional district magistrates (DMs and ADMs) of states. These documents carry information to be sought from people during the preparation of “National Population Register-2020 (NPR-2020). On page number 2, column 3 seeks “Place of birth of father & mother, if within India, write the name of the state and district. If outside India, write the name of the country and put (left blank to be filled later) for district”. Seeking information about the place of birth of father and mother in the NPR-2020 shown above is not mentioned in the 2003 Rules. The 2003 Rules seek information on 12 points: name, father’s name, mother’s name, sex, date of birth, place of birth, residential address (present and permanent), marital status (if ever married, name of the spouse), visible identification mark, date of registration of citizen, serial number of registration and national identity number provided under rule 13. (sub-rule 3 of Rule 3 of 2003 Rules).
The office of the Registrar General and Census Commissioner, India, in its updated website about the NPR, seeking 15 points of information, including “nationality”, Census is not asking for the information about the “place of birth of father and mother”.
While protests were going on, the Union Cabinet approved ₹3941.35 crore for updating the NPR that would be collated along with the House Listing and Housing Census of the decennial exercise from April to September 2020. The government has informed Parliament on multiple occasions since 2014 that the National Register of Indian Citizens (NRIC) or NRC will be created based on the information collected under NPR by verifying the citizenship status of all individuals in the country. They are going to complete the process of National Population Register in 2020, which will be used as raw data for NRC. In fact, the NPR is not new. It was conducted in 2010 and subsequently updated in 2015.
Sub-rule (3) of Rule 4 says: For the purposes of preparation and inclusion in the local register of Indian citizens, the particulars collected of every family and individual in the Population Register shall be verified and scrutinised by the local registrar who may be assisted by one or more persons as specified by the Registrar General of Citizen Registration.”
The NPR is a register of the usual residents of the country. It contains information collected 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.
The Citizenship Rules, 2003, also state clearly that the Centre, by issuing an order, can decide a date to prepare the NPR and also provide for the creation of NRC that will flow from data gathered in the NPR. According to the Rules, a person’s citizenship status will be decided by local officials – whether or not the person will figure in the NRC or not. No new law or rules are needed to conduct this exercise across the country.
To collect the data from people for NPR, Government has formulated 15 Parameters: Name of person, 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/activity and educational qualification.
2020 Version adds: 1) Date & Place of Birth of Parents 2) Last Place of Residence 3) Aadhaar ID 4) Driving Licence No. 5) Voter ID 6) Mobile No. Thus, NPR2020=NRC!!”
On June 18, 2014 a tweet posted from the cerified handle of Press Information Bureau had said “Shri Rajnath Singh directed to take NPR project to its logical conclusion which is creation of National Register of Indian Citizens.”
Opposition parties said the NPR was the first step to NRC. Home Minister gave interview to Asian News International (ANI) and said that information obtained through NPR could not be used for NRC and that the Union Cabinet had not ever discussed NRC.
But according to earlier statements, Laws, Rules etc, the process of NPR and Census will begin simultaneously, but their databases are different. While the decennial census is the largest single source of a variety of statistical information on different characteristics of the people of India, the NPR focuses on demographic information, more details are required for census like information on demography, economic activity, literacy and education, and housing and household amenities besides others.
Sub-rule (4) of Rule 4 of the 2003 Rules explains verification and scrutiny process: “During the verification process, particulars of such individuals, whose citizenship is doubtful, shall be entered by the local registrar with appropriate remark in the population register for further enquiry and in case of doubtful citizenship, the individual or the family shall be informed in a specified pro-forma immediately after the verification process is over.”
Significantly, we can’t find any definition for “doubtful citizenship” neither in the 2003 Rules nor in Citizenship Act of 1955, nor in Citizenship (Amendment) Act of 2003 (CAA of 2003), under which the Rules 2003 are made. It’s an executive invention without legislative sanction. Sub-rule (4) of Rule 4 says local officials to identify and decide “doubtful” citizens. These Rules have nothing as to how the local officers would identify individual or his family as “doubtful”. But they were given power to mark someone as “doubtful” citizen, then they would be (a) asked to provide information “in specified pro-forma” and (b) be given opportunity to be heard by “the Sub-district or Taluk Registrar of Citizen Registration” before a final decision about his nationality and inclusion in the NRC. There is a provision of “inviting any objections or for inclusion of any name…” under sub-section (6), meant for verification with others, but it has potential of harassment.
Thus “doubtful citizens” would be marked out in the population register for further inquiry and then family members would be informed, “in a specified proforma” which is beginning of the trauma of Indian.
Sub-rule (5) of Rule 4 says “doubtful citizens” would be heard by the sub-district or Taluk Registrar of citizen registration, before a final decision is taken to include or to exclude them in the NRIC but does not specify which documents would berequired for this or the process to be followed.
How to prove that he is not doubtful citizen? The ambiguity leads to arbitrariness. The Government did not come out with clarity as to what is the basis of “doubtful citizens”, who do they identify, mark, verify and correct? What is the “specified Pro-forma”. Nothing is in public domain. This secrecy, ambiguity will lead to harassment of people and corruption in process. Thus, a sub-district or Taluk Registrar has all the power to decide the Indianness of Indian and finish him if the official finds that he is not. Crores of poor and illiterate could be victims of their arbitrariness and others had to bribe. It also raises apprehensions that it could be misused to eliminate adversaries, critics, or belonging to different political beliefs. This provision has already played havoc in Assam. The power to mark someone as doubtful citizen could deprive him of his ‘Indian nationality’, hence, of all Constitutionally guaranteed rights besides making him ‘stateless’ with no hope of becoming a citizen of any country. It is worse than deprivation of life. As doubtful citizenship is not mentioned and defined in Act of 1955 and CAA 2003, it cannot stand the test of Constitutionality especially Article 21, right to life, which is available to all persons. It cannot be argued that Constitutional right to life is applicable and available only to citizens of India. On these grounds the process has been challenged in the Kolkata High Court, along with the July 2019 gazette notification to carry out the NRIC.
The working of NRC in Assam has revealed several failures. Even after reverification of the entire list as directed by the judiciary, around 6 per cent of in its NRC list – 19,06,657 people found excluded from a total of 3,30,27,661. If this failure rate is further projected to entire nation, 6% out of 133.3 crore (Population projection for 2019 as per National Commission on Population) could come to 7.99 crore persons would be termed as not citizens. Not a small figure at all. Where do you keep around 8 crores newly found ‘non-citizens’? How many detention centres the country needs to detain them? If one detention centre at Goalpara in Assam accommodates 3000 detainees, the need at that rate will be 26,658 detention centres according Prasanna Mohanty of Business Today. He further wrote: At ` 46.51 crore each, 26,658 detention centres would cost of ` 12.4 lakh crore. This would be 8.8 per cent of the GDP in FY19 – the GDP size being ` 140.78 lakh crore in FY19 at constant prices. The Union Cabinet approval of ` 3941.35 crore for NPR (2020) is not for Census 2021. Census is conducted under the Census Act of 1948. The NPR is being conducted under the 2003 Rules framed under the Citizenship Act of 1955 after the 2003 amendment. The MHA answered a question on number of detention centres that it was “entrusted” to the states and UTs and hence, “no such data is centrally maintained”.
It appears as if a simple exercise of census, but it demands information which a person cannot easily submit and impossible to prove; a new category of ‘doubtful citizen’ is created; that becomes raw data for ‘citizenship’ registration; if fails the test, one is declared as ‘not a citizen’; that means a foreigner without knowing which foreign country he belonged to; finally ends up in detention centre, a jail in fact, having not committed any crime and without knowing the term of imprisonment. In 70th year of Indian Republic, the people are presumed not citizens, until they prove their nationality as ‘Indian’, if not thrown to pitch darkness of ‘statelessness’.
When they took votes, people were citizens, after occupying power, their Indianness is suspected, if failed to prove, they are dumped. It is not just the issue of Muslims, but the life-&-death question of every person in India. CAA posed a challenge to idea of India, and the NRC+NPR+CAA is challenging the Indianness of every Indian!
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