Prelude
On the 9th of December 2019, the government of India introduced the Citizenship (Amendment) Bill 2019, which sought to amend certain provisions of the Citizenship Act of 1955. The amendment provides a fast-tracked route to Indian Citizenship for religious minorities, currently residing in India, who are from Afghanistan, Pakistan and Bangladesh.
The religious minorities selected from the said countries for this Bill are Hindus, Buddhists, Sikhs, Jains, Parsis, and Christians. The Bill excludes Muslim refugees, among other denominations, from its provisions. Having the numbers, the ruling party rapidly cleared the Bill with token scrutiny of the Houses and ratified by the President. It is now an Act of Parliament.
The ruling government has been churning out Bills like a daily printing press. Many of the Bills seek to alter indirectly or directly, the very nature of the Indian state, and doing so sets a precedent for future regressive regulations.
Some of the Bills introduced and passed by this government in 2019 include:
- The Constitution (One Hundred and Twenty Fourth Amendment) Bill, 2019
- The Jammu and Kashmir Reorganisation Bill, 2019
- The Transgender Persons (Protection of Rights) Bill, 2019
- The Protection of Human Rights (Amendment) Bill, 2019
- The National Investigation Agency (Amendment) Bill, 2019
- The Unlawful Activities (Prevention) Amendment Bill, 2019
- The Muslim Women (Protection of Rights on Marriage) Bill, 2019
The Citizenship Bill (now Act) brought in by this government is taken as a direct attack on the Muslim demographic in India. If upheld or not put on stay by the Supreme Court (as it has till now), the dangerous precedent this will set for future laws is unnerving, which will no doubt pave the way direct regressive laws for Muslims in India. The fear and anticipation the Muslims had covertly been living in all these years, sprung up in agitation in response to this Act.
Citizenship In India
The grant of citizenship in India is governed by Part II of the adopted Constitution of India and is detailed in Articles 5 to 11. Further, it is governed by the Citizenship Act 1955, and its amendments of 1986, 1992, 2003, 2005, 2015 and now 2019.
The Citizenship Act, for all practical purposes, grants Indian citizenship based on jus sanguinis (citizenship by right of blood) except for people born “on or after the 26th day of January 1950, but before the 1st day of July 1987.” There are provisions to seek India’s citizenship through naturalization and registration.
India is not very generous with granting its citizenship. The initial debates of the Constituent Assembly were highly polarized and unsurprisingly revolved around religion and Pakistan. In particular, P.S. Deshmukh was adamant about granting Hindus and Sikhs, all over the world, Indian Citizenship pleno iure (in full right).
In defense of his stance, he presented this argument: “If the Muslims want an exclusive place for themselves called Pakistan, why should not Hindus and Sikhs have India as their home? We are not debarring others from getting citizenship here. We merely say that we have no other country to look to for acquiring citizenship rights.”
The amendments moved by P.S. Deshmukh and supported by a group of members were made so to restrict citizenship rights for people who had returned from Pakistan to India. The assembly ultimately rejected the motion, with Nehru arguing against it:
“you cannot in any such provision lay down more or less whom you like and whom you dislike; you have to lay down certain principles . . . you cannot have rules for Hindus, Muslims, or Christians only.”
This initial debate only serves to show the sense of grudge that a faction held against another, though it would be malicious on our part to judge their intentions, the fact remains that this is recorded history. The final draft adopted by the assembly gave future parliaments the right to decide the grant of citizenship as it would deem appropriate.
Refugees And India
India has been fairly generous to refugees, but not helpful towards them. India hosts a couple hundred thousand refugees, but without any proper legal framework to either integrate them or legitimize their stay. Most of these refugees are financially on aid from the UNHCR.
India has no dedicated legal framework to deal with refugees and asylum seekers. Any non-Indian is subject to the following laws:
- Passports Act, 1967
- Registration of Foreigners Act, 1939, Foreigners Act, 1946
- Foreigners (Tribunals) Order, 1964
For these laws, a “foreigner” means “a person who is not a citizen of India”; thus subjecting refugees or not to the same legal treatment.
In a democracy, state policy is only a reflection of the desires of its society and its biases. As much as India would like to present itself as a welcoming nation, attitudes towards migrants have always been apprehensive. This unwanted phobia of the other is embedded in our language and idioms, and thus, in our state policy.
Not being party to the 1951 Refugee Convention or the 1967 Protocol, India is not bound to respect the principle of non-refoulement as mentioned in the 1984 Torture Convention. Then again, no international law is domestically bounding within Indian law per se. India is a signatory to the Global Compact on Refugees 2018. India’s comments on the Zero draft show its attitude towards refugees:
- . . . we would like to see greater clarity and consistency in the definition and usage of important terms in the text. Like for instance, the word ‘Refugees’ itself.
- We must be fully conscious of the fact that persons displaced by natural disasters or climate change are not refugees. Likewise, those internally displaced are not refugees.
India’s concerns here make no coherent sense. This attitude may not hurt India’s international stand, but it has and is surely messing up India internally. India’s fallacious reluctance to have a model refugee law is at the heart of the problem that the CAA 2019 has stirred up, especially in the context of the North East of India and West Bengal.
While daily wage workers from Bangladesh move freely with the help of the Border Security Force, many actual Bengali refugees are subject to legal hurdles. They have been stuck in camps such as Cooper’s Camp for at least a generation now. While the state makes no effort to have a legal framework for refugees or even temporary workers, it is at ease to subject people to Tribunals and Detention Centres for unknown ends.
National Register Of Citizens
The 2003 amendment to the Citizenship Act of 1955 gives the central government the authority that it “may compulsorily register every citizen of India and issue a national identity card to him for Identification”.
There are two terminologies in use at the moment:
1. National Population Register (NPR)
2. National Register of Citizens (NRC)
Both of the above are exercises that the central government is obliged to undertake under the Citizenship Act of 1955.
The two “registers” are related. Note that though the National Population Register is being carried along with the Census, it is not part of the census. The census in India is carried out under, The Census Act, 1948. Now, the 1948 Act itself has one particular issue as Vikas Kumar puts it, “. . . it did not address the possibility of collusive manipulation. Not surprisingly, the law has been found to be ineffective against the recurrence of such problems in various parts of India, particularly with regard to census questions related to identity.”
The intention or at least implications of the census seem nothing short of a project in social engineering. Mind you the biggest outcome of the 1941 census was the Radcliffe Line.
But then again, the Census and NPR are not related.
Under the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules 2003, “The Central Government may, by an order issued in this regard, decide date by which the Population Register shall be prepared by collecting information relating to all persons who are usually residing within the jurisdiction of Local Registrar”. which has already been notified in the Official Gazette.
That right there is the NPR. All usual residents must register in the NPR.
As released in a statement by Office of the Registrar General & Census Commissioner, India, “A usual resident is defined for the purposes of NPR as a person who has resided in a local area for the past 6 months or more or a person who intends to reside in that area for the next 6 months or more.”
As released in a statement on 26th November 2014, by the Ministry of Home Affairs, “The NPR is the first step towards creation of National Register of Indian Citizens (NRIC) by verifying the citizenship status of every usual resident. NPR is the first draft for the NCR.”
The NPR on the onset implicitly puts Non-Resident Indians in a bad state, but that’s another story. The NPR is not related to the NRC, but it can (or will) be used to draft the NRC. The Aadhaar (UIDAI) and NPR are rival projects using a similar means and for similar ends.
An NPR has already been done in 2010 and furthered in 2015. Now on to the NRC or more accurately the National Register of Indian Citizens. The NRIC is mandated by the Citizenship Act of 1955 such that, “The Central Government may maintain a National Register of Indian Citizens and for that purpose establish a National Registration Authority.”
The NRIC process shall be carried out as per the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003. On the ground, this process shall be carried out by “Every official of the Central Government, State Government, local bodies or their undertakings shall assist the Registrar General of Citizen Registration or any person authorized by him in this behalf” The verification of documents shall be carried out by such authorized personnel.
Who is a citizen is determined by the Citizenship Act of 1955; however, what documents shall suffice to prove citizenship is in the hands of the authorized personnel.
As the Rules state, “The District Registrar, Sub-district or Taluk Registrar or the Local Registrar of Citizen Registration may, by order, require any person to furnish any information within his knowledge in connection with the determination of Citizenship status of any person and the person required to furnish information shall be bound to comply with such requisition.”
What if ‘someone’s’ documents are not ‘satisfactory’? Well, “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 inquiry and in case of doubtful Citizenship, the individual or the family shall be informed in a specified proforma immediately after the verification process is over.”
But the state is generous, “Every person or family shall be given an opportunity of being heard by the Sub-district or Taluk Registrar of Citizen Registration before a final decision is taken to include or to exclude their particulars in the National Register of Indian Citizens.”
If you are still not happy with your name being left out in the NRIC “The District Registrar of Citizen Registration shall take a final decision, after giving an opportunity of being heard to the person so aggrieved.” Then again “the Central Government can in such cases as it thinks fit, certify that a person with respect to whose citizenship of India a doubt exists, is a citizen of India.”
So basically, the fate of every resident of India is in the hands of ill-fated bureaucrats. What happens after a person is excluded from the NRIC is still dubious but widely known. The NRIC can be necessarily justified. However, the intentions of the state and its assigned personnel are tangibly and historically questionable.
This is the least argument one can make against the NRIC process. The concerns on the NRIC process are reasonably owning to the huge discrepancies resulting in the final NRC draft for Assam. And to be honest, why should it be upon the people to prove their citizenship to a government and then leave for its assigned personnel to deem what proves a person’s citizenship?
In Closing
India had a refugee recognition problem, and this government made it into a citizenship one. The Citizenship (Amendment) Act, 2019, is not a complete document as of yet. The Rules are yet to be laid down, and when they do, they’ll have to be in line with most international laws. Prof. Faizan Mustafa has done a significant critique of the exact loopholes of the Citizenship (Amendment) Act, 2019. Get this straight: even though the Act “intended” to help “religiously persecuted” minorities, the Act itself makes no mention of that term. At this juncture to call this Act not anti-Muslim will only be making a joke on our intellects.
The transgender community is on target owing to The Transgender Persons (Protection of Rights) Bill, 2019. The tribal and landless population of our country face an uninformed threat of disenfranchisement too.
The protests and sacrifices against the Act are not unfounded and must carry on.
The Muslims of India have been institutionally and socially targeted since the revolt of 1857. Dr Ilyse Morgenstein Fuerst has given a wonderful talk on this fact. The comments made in the Nehru Report of 1928, too, blatantly show the anti-Muslim sentiments building up in a formative era.
And while the agitation against the Act and the NRIC are not a religious one, it is of a religiously marked community making their ever dying presence felt. Not claiming that the agitation is entirely an educated one or devoid of identifiable fervor of a marked community but to de-legitimize, it is a grave heresy.
One thing that this Act has brought about is an urge for legal awareness in a country wrought with legality and judicial misconduct. A well informed “citizenry” is a pain for a state just as it is for clergy. Then to say that ours is a democratic state; such is the irony. As long as the spirit of protest doesn’t die, and we can build a coherent argument for ourselves, most of the state’s bigotry can be struck down.
P.S. we have not touched on the situation and sentiments in the North East. Those are beyond our knowledge at the moment.