Ten reasons why the NRC exercise is both illegal and unconstitutional

On September 7, the Supreme Court listed for hearing on November 1 the petitions dealing with, among other things, the exercise of creation of the National Register of Citizens in Assam in line with the Citizenship (Registration of Citizens and Issue of National Identity Card Rules) 2003. However, the legality and constitutionality of both the Register and the Rules are suspect.

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IT is important to mention at the outset that the grounds of illegality and unconstitutionality mentioned herein are with respect specifically to National Register of Indian Citizens ('NRC') alone, and does not consider the combined effect of the Citizenship (Amendment) Act ('CAA') and the NRC, which further aggravates the illegality and unconstitutionality of both.

What is NRC under the citizenship law of the country?

In India, citizenship is solely governed by Part II of the Constitution and the Citizenship Act, 1955.

• In 2003, the Citizenship Act was amended and Section 14A was instituted in the Act. It provided for a National Register of Indian Citizens, commonly known as NRC. Section 14A stipulates that there should be compulsory registration of Indian citizens, and the registered citizens should be issued a National Identity Card.
• To fulfil the mandate of this section, the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules were framed in 2003, providing for the method and procedure for preparation of the NRC, and for resolution of dispute arising in the process.
• The Rules, prima facie, deal exclusively with the preparation of the NRC, and not the criteria, conditions or the procedure for the determination, acquisition or termination of citizenship, since in that case, the Rules will have to fulfil the requirements of the relevant provisions of the Citizenship Act.
• Yet these NRC-related Rules go beyond their mandate as well as against the provision of the parent Act, and say that persons who do not find their names in the NRC shall be treated as doubtful citizens and maybe referred to Foreigners Tribunal by the concerned District Magistrate, through a provision in an entirely separate Foreigners (Tribunal) Order, 1964 under the  separate Foreigners Act, 1946.

Para 8 of the Schedule to the 2003 Citizenship Rules says that those who do not find their names in the NRC or others who are aggrieved by the final order of registering authority can appeal to the Foreigners Tribunal, and a concomitant provision was inserted in the Foreigners (Tribunal) Order in the form of Section 2(1B). If the person does not appeal, then the District Magistrate can refer the cases of doubtful citizens to the Foreigners Tribunal for its opinion whether such persons are foreigners or not within the meaning of the Foreigners Act.

Thus, the procedure that is followed in case of the doubtful citizens is as if the persons are prima facie foreigners, and by implication the provisions of the Foreigners Act is applicable on them.

Also read: The Elephant in the Room is NRC

What are the grounds of the NRC's illegality and unconstitutionality?

1. The NRC, which is provided for under Rule 4 of the 2003 Rules, is ultra viresSection 10 of the Citizenship Act. This section provides for the criteria, conditions and procedure for deprivation of citizenship. The 2003 Rules fulfil neither the criteria and conditions for deprivation of citizenship nor the procedure laid down in section 10.
2. The 2003 Rules are purportedly made under section 14A of the Citizenship Act. But section 14A provides only for the registration of citizens. Hence, any consequence in the nature of deprivation of citizenship has to meet the requirements of section 10 of the Act, which the 2003 Rules do not. Hence, these Rules and the NRC are beyond the scope of section 14A, and thus without any legal basis.
3. There exists no law that requires a citizen to get registered in order to be considered a citizen; hence, citizenship, being 'a right to other rights' including fundamental rights, cannot be taken away in the absence of any legal provisions requiring registration as the condition of citizenship. To that extent, the 2003 Rules and the NRC are manifestly arbitrary and unconstitutional.
4. The 2003 Rules amount to retrospective delegated legislation, in that they apply to persons born before December 10, 2003, when these Rules came into force. It is a well-established principle that a vested right cannot be taken away by a retrospective legislation, more so when the right is as fundamental as that of citizenship. Hence, the 2003 Rules and the NRC is bad in law.It is to be noted in this context that in the case of Assam, the date of March 24, 1971 reached at in 1985 through the Assam Accord does not amount to retrospective legislation because to deal with the problem of illegal migration, the Parliament had already passed the Immigrants (Expulsion from Assam) Act, 1950, following which the first Assam-specific exercise of NRC was undertaken. The Assam Accord effectively aimed at enforcing what was an existing legislative object, under a legislative provision, with the aforesaid date of March 24, 1971 being reached at by consensus.

5. Deprivation of citizenship, in case a person's name does not appear in NRC, shall have grave criminal and civil consequences. It is to be noted that a person whose name does not appear in the NRC shall be deemed to be a foreigner. Such a consequence violates the well-established principle of non-retrospective application of criminal laws, as also enshrined inArticle 20 of the Constitution. Hence, the 2003 Rules and the NRC are unconstitutional.
6. The Foreigners Act is for foreigners, and in the presence of the Citizenship Act, which provides for the criteria, conditions and procedure for deprivation of citizenship, the application of the Foreigners Act to those who do not find their names in the NRC is bad in law and contrary to harmonious construction of legislations.
7. The Foreigners Act puts the burden of proof of citizenship on an individual, which violates the time-honoured principle of placing the burden of proof on the State in criminal matters or on the petitioner/complainant generally; more so when it concerns citizenship, which is the gateway to a bundle of rights, including certain fundamental rights.
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   “Deprivation of citizenship, in case a person's name does not appear in NRC, shall have grave criminal and civil consequences. A person whose name does not appear in the NRC shall be deemed to be a foreigner. Such a consequence violates the well-established principle of non-retrospective application of criminal laws, as also enshrined in Article 20 of the Constitution.

   In this context, it is important to note that the right of a sovereign State to exclude or expel foreigners at will, which indeed a sovereign State may rightly claim, is distinct from the preceding question of determination of the very citizenship, which ought to be a circumspect and conscientious exercise requiring the highest standards of proof to be met by a State.

8. The Foreigners Act, a British era legislation, is not in consonance with the idea of citizenship of a nation-State that recognizes popular sovereignty, where the status of a national is not merely that of a 'subject' but of a 'citizen' who is invested with an array of rights, including certain fundamental rights, the violation of which is manifestly unconstitutional.

Also read: NRC: Abdul Kuddus –  a judgment full of contradictions

9. Presuming that the Foreigners Act can be validly applied to those who do not find their names in the NRC, the principle of establishing a prima facie case against a foreigner under the Foreigners Act is violated by the current NRC provisions. It is because the NRC is to be carried out for the whole population, and when all those who do not find their names in NRC are presumed as foreigners in a blanket manner, the possibility of establishing a prima facie case by the State against particular individuals as required under the Foreigners Act is precluded.The inappropriateness of the evidentiary value of such a large scale exercise in a legal proceeding is recognised in Section 15 of the Census Act, 1948, which nullifies the evidentiary value of data collected during the Census exercise except for wrongs committed under the Act itself.
10. Maintenance of a national register with provision for a single identity card has a detrimental impact on the right to privacy of an individual. Various dimensions of such an impact have been neither comprehended adequately nor examined through any robust public discourse. Moreover, such a provision is more amenable to a totalitarian State, and is against the spirit of a democratic Constitution. Hence, the 2003 Rules and the NRC are potentially violative of theright to privacy guaranteed under the Constitution.

Hence, the only proper course to prepare any list of Indian citizens is to promulgate a law that specifically requires certain documents to prove citizenship. The law must be published widely, and should provide an adequate timeframe for compliance, and place the burden of sanctions for not complying.