Human Rights Issues

[op-ed snap] The dubious legal case for an NRIC

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Nothing much

Mains level : NRC for the country

Context

The government is proposing an NRC for the country. The Union Home Minister said that the Preparation of National Register of Indian Citizens (NRIC) is governed under several laws.

Legal provisions

    • Citizenship Act – It is said to be governed by the provisions of Section 14A of The Citizenship Act, 1955 and The Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules 2003.
    • Section 14A of the Citizenship Act, 1955 provides for compulsory registration of every citizen of India and the maintenance of NRIC. 
    • Citizenship Rules – The procedure to prepare and maintain NRIC is specified in The Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003.

Problems with the argument

    • It suggests that a nationwide NRIC is mandated by law. 
    • “May” – Section 14A in the Citizenship Act of 1955 provides in sub-section (1) that “The Central Government may compulsorily register every citizen of India and issue a national identity card to him”. 
    • Discretion vs mandate – The word “may” implies a discretion contingent on other factors. It is at odds with the “compulsory” nature envisaged.
    • From the past – this section was introduced in 2004 in the last days of the National Democratic Alliance (NDA) government.

Rules that authorize an NRIC

    • The 2003 Rules are cited by the Home Minister. Three Rules are of particular interest, Rules 11, 6 and 4 seem to grant some sort of authority for a nationwide NRIC.
    • Rule 11 – “Registrar General of Citizen Registration shall cause to maintain the National Register of Indian Citizen in electronic or some other form .. continuous updating .. from various registers under Registration of Births and Deaths Act, 1969 and the Citizenship Act 1955.” 
    • Registrar General’s responsibility is only to do a periodic revision of the National Register. There is no duty upon the citizens to apply for their citizenship afresh.
    • Rule 4 – it places the responsibility to carry out a census-like exercise on the Central government and not on citizens. It deals with “Preparation of the National Register of Indian Citizens”. 
    • It says that the Central Government shall carry out a “house-to-house enumeration for collection for particulars related to each family and Individual including the citizenship status”. 
    • This is a passive process compared to the grueling exercise that was forced upon citizens in Assam. 
    • Assam exercise of making “residents” register vis-à-vis a specific cut-off date was an explicit exception, inserted by amendment through Rule 4A in 2009.
    • Rule 6 – every individual must get himself/herself registered with the Local Registrar of Citizen Registrations during the period of initialization. This rule is circumscribed by the other clauses in the Act.
    • Contradiction in rules:
      • Rule 11 says that updating the NRIC entails updating the information available with ‘Registrar of Births and Deaths’. 
      • Rule 4 says that a census-like exercise shall be carried out and, if the Central government wants to exclude a citizen, it will give him/her a hearing. 
      • Rule 6 says that a citizen shall have to get himself/herself registered once a start period is specified. 
      • These Rules are in direct contradiction with one another, and smack of non-application of mind and arbitrariness.

Not mandatory

    • The rules, as currently drafted, do envisage other less destructive scenarios to register “citizens” which are redundant in the wake of the Aadhaar Act and not mandatory. 
    • Under the Act, the Centre continues to enjoy rule-making powers and could issue rules which could make it mandatory in the Assam format.
    • Under the Foreigners Act of 1946, the burden of proving whether an individual is a citizen or not lies upon the individual applicant and not on the state (Section 9). 

Projects & constitutionality

    • Identity enrolment was made mandatory under the Aadhaar project and this was struck down as excessive. 
    • The NRIC scheme would be directly in violation of the K.S. Puttaswamy judgment. 
    • Not acquiring an Aadhaar number does not subject a citizen to the serious penal consequences envisaged in the case of an NRIC.
    • The NRIC exercise promises to inflict a long period of insecurity on over a billion people. 
    • The individuals most likely to suffer are those at the very margins of poverty, who risk being rendered stateless and being incarcerated in detention camps which are truly a blot on our democracy. 
    • Such a register (NRC) has existed since 1951 only in Assam, as a special case.
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