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Deliberate ambiguity regarding citizenship laws threatens to undermine the values of the Constitution

In such circumstances, it is the duty of the judiciary to step in against this brutal suppression of peaceful protests. However, we are yet to see any effective and strong action by the judiciary.

Written by Prashant Bhushan , Cheryl D Souza | Updated: January 13, 2020 10:14:24 am
citizenship amendment act, citizenship act protests, caa protests, nrc protests, lucknow protests, caa, muslims caa protests, indian express news In such circumstances, it is the duty of the judiciary to step in against this brutal suppression of peaceful protests. (Illustration by C R Sasikumar)

Rattled by the widespread agitation against the Citizenship Amendment Act, which, coupled with the National Register of Citizens, is rightly seen as the first concrete step to establish a Hindu Rashtra. Prime Minister Narendra Modi claimed at Ramlila Maidan that there is no move by the government to prepare a countrywide NRC. He also claimed that there were no detention centres for detaining non-citizens in the country. His denials were clearly false, as Amit Shah had stated multiple times the decision of the government to implement a nationwide NRC. The government had also admitted in Parliament and elsewhere about the construction of detention centres. The fact is that many were being constructed in various states, particularly those ruled by the BJP.

Yet, Modi’s denial may have been seen by some as stepping back from a nationwide NRC by a government rattled by the agitation against it. However, within two days of his denial, the cabinet decided to go ahead and prepare the National Population Register. Though the government denies the link between the NPR and the NRC, under the Citizenship Rules of 2003, the NPR would be the basis for preparing the NRC. Clearly, the government seems to be in no mood to backtrack.

There is deliberate ambiguity regarding the NPR/NRIC and its implementation. However, the modalities for the preparation of this register are contained in the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003.

The scheme mandates the preparation of a population register from which after “due verification” a local register of Indian citizens will be prepared. A sub clause in the rules gives the local registrar the power to mark out individuals whose citizenship is “doubtful” in the population register and send them for further enquiry. Claims and objections are invited against names published in a draft register and after these are disposed, the district magistrate (DM) shall prepare the Local Register of Indian Citizens, to be transferred to the National Register of Indian Citizens. The appellate authority for those aggrieved by their exclusion is the DM himself, who is the final functionary responsible for publishing the register.

Under the Foreigners Tribunal (Amendment) Order, 2019, the power to refer a suspected foreigner to a tribunal has also been delegated to DMs. Those excluded will be left at the mercy of the quasi-judicial Foreigners Tribunals, to be set up across the country, the constitutionality and functioning of which in Assam have raised many questions. Its members have no judicial experience and are appointed on a yearly basis. Their extension depends on how many persons they have declared as foreigners. Their proceedings are rather arbitrary. Notices are rarely served and even when served give no reasons for suspecting the citizenship of the person. The result is that the majority (63,959) of persons have been declared foreigners through ex parte orders until February 2019. Persons declared foreigners can then be detained in sub-human conditions in detention centres and languish there, sometimes indefinitely.

This rather arbitrary procedure for weeding out the “doubtful”, leaves us with the frightening prospect of administrative manipulation in creating a citizens register to further a divisive electoral and political agenda. This is clear from the CAA, which is designed to bring back non-Muslims (from Pakistan, Bangladesh and Afghanistan) left out from the NRC by giving them citizenship as refugees.

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The nationwide NRC is an amplification of the very flawed and inhuman process adopted in creating a NRC in Assam. In Assam, persons were asked to apply with documentary evidence of their birth, land ownership, school degrees, as well as documents to establish their ancestry from 1950 onwards. Many people, especially the poor, did not have such documents. Others had to spend enormous sums of money to collect such documents from offices of various registrars and issuing authorities. A lot of people lost their life savings in this process and many were still excluded because of minor discrepancies in the spellings of their names in different documents. The exercise spawned an enormous humanitarian crisis.

The cost of preparing the NRC in Assam was approximately Rs 400 per person. A pan India exercise of that kind would cost over Rs 50,000 crore. The expense for people in procuring the documents required for inclusion in the NRC would be many times over. This at a time when the country is reeling under the highest unemployment in the last 40 years.

In sum, the process for declaring persons as non-citizens through the NPR and NRIC is arbitrary and inhuman. It will come at an enormous cost to the poorest in our country who will be left to wade through complex procedures, having to scramble for documents, and still be left out. They would then face the prospect of being in detention centres. However, with the CAA, those excluded from the NRIC and who belong to the Hindu, Sikh, Jain, Buddhist, Parsi, Jew or Christian community, can apply to becomes citizens by proving that they have fled religious persecution in either Afghanistan, Bangladesh or Pakistan. Ironically, these are the same individuals who would have produced documentation to prove that they are Indian citizens to be included in the NRIC, making them liable for prosecution for perjury.

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Though agitation in the country has been sparked off by the passing of the communal and discriminatory CAA, a far more serious malaise lies behind the NRIC and the NPR. This exercise has however, finally lit the spark of a massive people’s movement against this inhuman and communal regime. The government is trying to suppress the protests by brutal police action in BJP ruled states. There are many videos showing that in many towns in Uttar Pradesh the police have gone on a rampage, attacking peaceful citizens, battering cars and motorcycles and even ransacking homes. Many peaceful protestors, and even those who were not protesting have been arrested and charged. Shops of people unconnected with any violence, have been sealed on the grounds that these people have destroyed public property. All this is totally illegal. Most of the victims of police atrocities are Muslims, who are being specially targeted.

In such circumstances, it is the duty of the judiciary to step in against this brutal suppression of peaceful protests. However, we are yet to see any effective and strong action by the judiciary. The constitutional validity of the CAA has also been challenged in the Supreme Court. We hope that these petitions will be heard soon and the Court will rise to defend constitutional values and strike down this blatantly unconstitutional law. While the continuation of the protests is important, it is even more important that they remain non-violent, despite attempts to provoke violence.

This article first appeared in the print edition on January 13, 2020 under the title ‘Undermining the Republic’. Bhushan and D’souza are advocates practicing at the Supreme Court of India and involved in the cases on detention centres and the NRC in Assam.

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