How a Nationwide Register of Citizens violates Citizenship Laws and the Constitution

The primary question to ask is whether any existing law requires citizens to possess certain documents or to register as proof or condition of citizenship. There exists no such law or requirement under the citizenship laws in India, writes MOHAMMAD WASIM.

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In the ever-shifting landscape of the meaning and scope of citizenship, one feature has remained immutable—that citizenship is the bedrock of a gamut of other rights. Citizenship confers superior rights and privileges on individuals who are citizens and excludes others. Indeed, a person or group shorn of citizenship loses the right to humane treatment, as the Roma, Kurd, and Rohingya people would testify.

Therefore, any measure that impacts citizenship must meet the rigorous standards of due process and ought to be carried out with the most conscientiousness, more so in a polity where citizens are sovereign. Let us examine the Indian citizenship law in this context and see how the proposed National Register of Citizens (NRC) fares.

In India, the acquisition of citizenship and the criteria to determine citizenship are solely governed by Part II of the Constitution and the Citizenship Act, 1955.

Citizenship confers superior rights and privileges on individuals who are citizens and excludes others. Indeed, a person or group shorn of citizenship loses the right to humane treatment, as the Roma, Kurd, and Rohingya people would testify. The NRC puts a retrospective condition of possession of documents for recognition of citizenship, which is a gateway to several fundamental rights and is thus arbitrary and unconstitutional.

The Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003, was framed to fulfill the mandate of section 14A of the Citizenship Act, 1955. Section 14A stipulates compulsory registration of Indian citizens who would be issued a National Identity Card. The Rules deal exclusively with the National Register of Indian Citizens or NRC, and not with the criteria or process for the acquisition and determination of citizenship. That would require compliance with sections 8, 9, and 10 of the Citizenship Act, 1955.

Thus, these rules, prima facie, have no impact on the citizenship status of an individual. The only penal and civil sanction for violating the Citizenship Rules, 2003, is a fine of up to Rs. 1,000. There is no legal provision to deprive someone of their citizenship acquired by birth or descent, except if they acquire the citizenship of another country.

The method of “termination of citizenship”, is enunciated in the Citizenship Act, 1955, and includes a citizen renouncing his citizenship (section 8), acquires citizenship of another state (section 9. Termination of Citizenship), or who acquired a certificate of registration or naturalisation by fraud, misrepresentation or concealment of material fact, or has been disloyal to the Constitution, engaged or associated with an enemy during a war, etc (section 10).

Thus, the only manner in which a citizen by birth or descent can be deprived of citizenship is when he acquires citizenship of another state.

Thus, the Citizenship Rules, 2003 and NRC do not directly or by implication provide for deprivation of citizenship. Assuming the rules are amended to allow deprivation of citizens, that would not only lack legal basis but also violate the Citizenship Act, 1955 for not meeting its criteria, conditions, and procedures of termination or deprivation of citizenship.

Employing Foreigners Act, 1946 to assume authority absent in citizenship law and transgressing both

So, how is it that individuals whose names did not figure in the final NRC list in Assam were deprived of citizenship rights (as they could not prove they were citizens)? This is because the issue in Assam was purportedly about recognition of foreigners and treating them as per the law, rather than deprivation of citizenship of any citizen. It is important to note that the law to identify foreigners is the Foreigners Act, 1946, a pre-Constitutional law that is suspect on grounds of violation of due process. Nonetheless, it has its own body of jurisprudence and processes.

On the other hand, the NRC List is prepared under the Citizenship Act, 1955, which has no provision to deprive citizenship and lacks any hypostasis from which a provision to deprive citizenship of citizens by birth or descent can be presumed.

PRESUMPTION VIOLATES LEGAL PROVISIONS

The core of the problem is the presumption that individuals who do not find their names in the NRC list are foreigners. This violates not only the legal and constitutional provisions on citizenship but fails even to meet the minimal procedural requirement under the dubious Foreigners Act, 1946.

It is of little consolation that the Citizenship Rules, 2003, and the Foreigners (Tribunal) Order, 1964, were amended to provide a semblance of a legal basis, for reasons stated in the last preceding paragraph.

Additionally, since the Citizenship Act, 1955, which provides the criteria, conditions, and procedure for deprivation of citizenship, the application of the Foreigners Act, 1946, to those who do not find their names in the NRC is contrary to harmonious construction of legislations and thus bad in law.

The ordinary procedure to identify foreigners under the Foreigners Act, 1946 and the ensuing Foreigners (Tribunal Order) 1964 is that the government refers the question as to whether a person or a group of persons is or is not a foreigner to the Foreigners Tribunal, which upon being satisfied that prima facie there are sufficient grounds to proceed, serves notice upon the person/s, who are provided an opportunity to a fair hearing, after which the tribunal submits its opinion to the government. Thus the burden of proving that an individual is a citizen, after the prima-facie satisfaction of the tribunal is on the individual.

This inversion of the burden of proof is in contravention of the due process requirements under Article 21, which every person including non-citizens are entitled to, and has been upheld by the Supreme Court in Sarbananda Sonowal vs UoI, 2005, and other cases. The underlying principle is that the facts that are needed to establish citizenship are especially within the knowledge of an individual and are based on a principle recognised under section 106 of the Indian Evidence Act, 1872.

By placing the burden on the government to prove prima facie before the Foreigners Tribunal that an individual is a foreigner, after which the tribunal can proceed against the individual, the harsh edges of the inversion of the burden of proof is partially ameliorated.

But the presumption that the individuals who do not find their names in the NRC list are foreigners and that they—and not the government—need to appeal to the Foreigners Tribunal to establish their citizenship dispenses with even this minimal requirement for the government to establish prima-facie before the Foreigners Tribunal that the individuals are foreigners.

Is the state right to contend that not being able to produce any of the documents out of over 10 that are permitted to get enrolled in the NRC is sufficient to establish prima facie that a person is a foreigner? In my opinion, it is not sufficient. In the ordinary course envisaged under the existing law for foreigners, it is not sufficient for the executive to conclude that prima facie a person is a foreigner just because he or she is unable to produce any document.

Yet, the fact of being a foreigner has to be established in the Foreigners Tribunal to its satisfaction. The procedure adopted while presuming that a person outside the NRC list is effectively a foreigner, this requirement to establish so prima facie in a court of law is dispensed with, and the mere satisfaction of executive is sufficient to mark a person as “doubtful”, thus subverting the rule of law by dispensing with even the minimal requirement of prima-facie proof on the part of the state.

THE DIFFICULTY OF DOCUMENTS

Furthermore, every person may have her peculiar circumstances and reason for not having documents—or their documents may have errors—which need the tribunal to apply its mind before concluding. To dispense with this requirement, on top of the inversion of the burden of proof, makes the process arbitrary and unconstitutional.

Apart from legal infirmities, the ground reality presents several instances that make it entirely conceivable that a substantial proportion of the population may not possess any of the documents. In a country of nearly 494 million landless people (NSSO data), 17 million who do not own a house, where over 15% of the population is illiterate, and over 12% of the area is prone to severe floods, several million may not have any document. Hence the necessity of scrupulous conformity with the basic requirements mentioned above.

Every person may have her peculiar circumstances and reason for not having documents—or their documents may have errors—which need the tribunal to apply its mind before concluding. To dispense with this requirement, on top of the inversion of the burden of proof, makes the process arbitrary and unconstitutional.

The constitutional incompatibility of any citizen list that has, in effect, retroactive application 

The use of any list to determine the citizenship of the entire population, which has been prepared based on whether they have documents or not, would contravene the Constitution and the Citizenship Act, 1955. This would be so even if a list were prepared under the Foreigners Act, 1946, as in essence, it would determine citizenship.

The primary question is whether any law requires citizens to possess certain documents or to register as proof or condition of citizenship? There exists no such requirement under the extant citizenship law in India.

Any law that comes close in functionality is the Registration of Births and Deaths Act, 1969, which neither purports to establish citizenship nor can be assumed to perform such a function by necessary implication in that it caters to several other policy-making requirements of the government. The fact that its violation carries a maximum fine of Rs. 50, and not the deprivation of citizenship, seals the argument. Also, by its nature, this Act cannot and does not put the burden on the individual herself, so she is precluded from being penalised, least of all by being deprived of citizenship. The Aadhaar Act, 2016, is another law that comes close in terms of its functionality, but it expressly disassociates itself from being a proof of citizenship.

Hence, the NRC effectively puts the retrospective condition of possession of documents for recognition of citizenship, which is a gateway to a gamut of other rights including several fundamental rights and is thus arbitrary and unconstitutional.

Furthermore, the Citizenship Rules, 2003, is like a retrospective delegated legislation, in that it applies to persons born before 10 December 2003, when these Rules came into force. It is a well-established principle of law that a vested right cannot be taken away by retrospective legislation, more so when the right is so fundamental as that of citizenship. Hence, the said Rules and NRC are bad in law.

Assam may be said to stand on a different footing; even deriving a semblance of legitimacy as the exercise is being conducted under the supervision of the Supreme Court and in pursuance of the Assam Accord. Given the history of largescale immigration due to economic and political reasons, but no such rationale exists for the entire country. However, even in Assam, the requirement on the government to show a prima face case cannot be dispensed with.

It is not to argue that a sovereign state cannot exclude or expel foreigners, which it can, but that the determination of citizenship or foreigner status must be under substantive laws which guarantee due process. Whereas the colonial-era Foreigners Act, 1946 requires reform on several counts, the least that can be done is not to explicitly violate the extant provisions and resort to blanket measures to impute foreignness to an entire population unless individuals therein prove otherwise.

The Citizenship Rules, 2003, is like a retrospective delegated legislation, in that it applies to persons born before 10 December 2003, when these Rules came into force. It is a well-established principle of law that a vested right cannot be taken away by retrospective legislation, more so when the right is so fundamental as that of citizenship. Hence, the said Rules and NRC are bad in law.

The jurisprudence of identification and expulsion of foreigners proceeds on grounds of prima facie doubt in discrete cases involving an individual or group of individuals rather than involving the whole population of a state.

In a Constitution that espouses popular sovereignty, citizens hold sacrosanct status as sovereigns, not as mere subjects under arbitrary authority, and are endowed with a set of inalienable rights that cannot be trifled with. The only proper course to prepare a list of Indian citizens is to promulgate a law that requires certain documents to prove citizenship. The law must be published widely, provide an adequate timeframe for compliance, and place the burden of sanctions on both the authorities and citizens so the lower bureaucracy cannot abuse it.

Assam may be said to stand on a different footing; even deriving a semblance of legitimacy as the exercise is being conducted under the supervision of the Supreme Court and in pursuance of the Assam Accord. Given the history of largescale immigration due to economic and political reasons, but no such rationale exists for the entire country. However, even in Assam, the requirement on the government to show a prima face case cannot be dispensed with.

Only then can this need of the state be met without violating the inalienable rights of citizens.

(Mohammad Wasim is an advocate at the Supreme Court of India. The views expressed are personal.)

The article was originally published in The Leaflet.