Dear Virat Kohli, Read This So You Can Understand CAA-NRC-NPR

Is CAA unconstitutional? Why fear the ‘speculative’ all-India NRC? How are CAA-NRC linked? Here are the answers.

(As nationwide anti-CAA protests gathered steam, on 4 January, Virat Kohli demurred when asked his opinion about the issue: “I don’t want to be irresponsible and speak on something that has radical opinions on both sides. I need to have total information, total knowledge of what it means and what is going on, then be responsible to give my opinion on it.”)

The recently passed Citizenship (Amendment Act), 2019 (CAA), the proposed All India National Register of Citizens (NRC) and the National Population Register (NPR) have raised many questions and concerns. These concerns have also turned into countrywide protests.

The government has tried to provide some clarifications through the Press Information Bureau (PIB), over Twitter, and other social media platforms. Unfortunately, many of these clarifications seem vague and lacking in detail, and seem to be issued without legal authority. Nothing in these clarifications or the prime minister’s address of 22 December 2019 sheds light on the finer details of how the CAA and the NRC would function, leaving several questions unanswered.

Is the CAA Unconstitutional?

The Supreme Court will decide the matter of CAA’s constitutionality in January. However, a close reading of the CAA indicates that it is likely to be found unconstitutional. Laws are unconstitutional if they treat people unequally, or are found to be arbitrary in nature. Not only is the CAA arbitrary, it also discriminates based on religion – something the government/parliament is not allowed to do. The CAA only applies to three (Bangladesh, Pakistan and Afghanistan) out of our eight neighbours, without any justification as to why. Even in these countries, it chooses six religious communities but leaves out many others [1]. Most notably, it leaves out the Muslim and the Jewish communities. Both – the random choice of only three countries and six communities – violate the Constitution.

The Govt Says These Six Communities Are Persecuted in These Three Selected Countries?

That is simply not true. The qualification for CAA, ‘religious persecution’, occurs in other countries as well. Persecuted communities exist in China (Tibetan Buddhists, Uighur Muslims), Bhutan (Christians), Sri Lanka (Tamil Hindus) and Myanmar (Rohingya Muslims) also. The Ahmadis, in particular, have historically been persecuted in all three countries[2] – Afghanistan, Bangladesh and Pakistan. The Hazaras and the Shias (which are all Muslim communities) have also been persecuted on religious grounds in Pakistan. The Constitution of Pakistan explicitly declares Ahmadis as ‘non-Muslims’ and not a sect within Islam[3]. Even a sect is a subset of a religion. Therefore, sectarian persecution is religious persecution inasmuch as the community is persecuted on account of their faith and beliefs. In fact, the United Nations also classifies Ahmadis along with Hindus, Christian, Shias, Sikhs etc, as groups facing religion-based persecution.[4]

But Others Can Use the Long Term Visa and Take Refuge. Where is the ‘Discrimination’?

Under the LTV, migrants are allowed to rent homes, open bank accounts, and gain employment. With structured State support, these migrants can make a life for themselves in India for 11 years before they can apply for citizenship through naturalisation. However, for the six communities from these three countries, the LTV is issued for five years, and they can even declare their intention to gain Indian citizenship at the time of applying for the LTV.[5] The CAA discriminates amongst the same set of people arriving in India for the same objectives. There is no justification to give fast track citizenship in five years to only these six communities from these three countries, when there are others who have been in India on proven grounds of religious persecution[6] but they’ll have to wait for 11 years to become citizens.

But Surely There is Evidence of Such Persecution?

Many of these abstract assumptions can be explained by the fact that the government has admittedly not made these decisions on the basis of data (verifiable or otherwise). For instance, it presumes widespread religious persecution of the six communities in Pakistan, Bangladesh and Afghanistan with no data[7]. Instead, the MEA clarified as recently as December 2019[8] that Afghanistan is treating its minorities ‘satisfactorily’. The government has also admitted that it has no specific data about Bengali Hindus from Bangladesh or Pakistan who came to Assam on or before 31 December 2014.[9] There is nothing to support the claims that these countries will welcome Muslims and not welcome Hindus, Sikhs, Jains etc.

How Are the CAA and the Proposed All India NRC Related?

The CAA, on the face of it, does not apply to existing citizens. But that doesn’t mean it won’t affect citizens. Many of us either do not have documentation to prove that we were born in India or that our parents were Indian, or that our parents moved to India in a manner that would prove that we are citizens. Some others may have lost their documentation in floods, riots or other calamities. This is where the CAA could affect citizens as well. If and when the All-India NRC comes into force, the government will ask at least some of us to ‘prove’ that we are citizens. Many Hindus and Muslims alike will not be able to provide documents to prove that they are citizens. But here’s the catch — the six notified communities will be able to get the protection of the CAA if:

• They came to India before 2015.
• They claim that they came due to the fear of religious persecution[10] (the proof required for this appears to be very limited[11])
• If the government believes they are ‘most likely to be connected to’ [12] Bangladesh, Pakistan or Afghanistan. The CAA will then put them on a fast track to citizenship.

However, if you’re Muslim, you either prove during the NRC process that you’re a citizen, or you’re termed an illegal migrant. We don’t know what will happen to those who are declared illegal migrants.but we know that, at least in the Assam NRC, many people who were declared illegal migrants were sent to detention centers[13]. The example of Assam clearly shows the deadly impact of the CAA-NRC combination.

But The Govt Assured Us That NRC is Only ‘Speculative’?

As of now, an All India NRC seems inevitable. Despite the prime minister’s statement in his speech on 22 December 2019 calling a nationwide NRC a ‘product of rumours’, the official clarifications hosted by the Press Information Bureau admit that the legal framework for this already exists[14]. Contrary to what the government claims now, the home minister, till as recently as October 2019, has repeatedly confirmed that the CAA and the NRC are linked[15]. Since the NRC is based on the 2003 Rules to the Citizenship Act (1955), and the CAA is also based on the same law, they will certainly apply together. Notably, the link between the CAA and All India NRC is clearly established via the National Population Register (NPR) which is already underway[16]. The NPR collects information to form a database of Indian residents, as per the 2003 Citizenship Rules. Based on this, people of ‘doubtful citizenship’ will be identified. These people will then be asked to prove that they are not illegal immigrants. The final NRC will then consist of all the people identified using the NPR, except for those who are unable to prove that they are not illegal immigrants. As of 21 December 2019, the Union Home Ministry has approached the Cabinet for Rs 3,941 crore to update the National Population Register.[17] The upcoming NPR exercise will require people to declare ‘date and place of birth of parents’ which was not asked in the earlier NPR. This new requirement holds significance in the context of the proposed nationwide NRC inasmuch as it mirrors the requirements for citizenship under Section 3 of the Citizenship Act. This raises the concern that the identical overlap between the requirements for citizenship under the Citizenship Act and the new requirement of the NPR goes on to credibly suggest that the NPR will form the basis of the future NRC.[18]

Why Are We Worried About the Proposed All India NRC?

No one knows what sort of documents will be required to verify citizenship. But we know that the point of an NRC is to verify whether you meet the criteria to be a citizen. We note that some government sources have indicated that no one will be required to provide documents relating to the citizenship of their parents. Such statements would appear to be erroneous because, for those born after 1 July 1987, proof of birth in India alone would not suffice to verify citizenship, simply because birth in India would not suffice for one to attain citizenship[19]. Since the nature and type of the required documents has not been decided, there is room for ambiguity as well as potential misuse. Once the CAA is enforced, just on government assurance without an actual list of required documents having undergone parliamentary approval, the government would be empowered with wide discretionary powers to decide what documents may or may not be required at this stage. Such assurance is vague, and given the mandate of parliament, as citizens, we cannot be satisfied until we get a confirmed list of required documents. Such a list is important because there is no clear stance if even a passport confirms citizenship[20].

Bibliography

1. [1] Text of CAA
2. [2] http://hrcommittee.org/wp-content/uploads/2017/06/Persecution-2017-Final-PRINT-COPYV2-.pdf, https://www.refworld.org/docid/42c3bce80.html, https://www.newenglishreview.org/blog_direct_link.cfm?blog_id=68681
3. [3] http://www.pakistani.org/pakistan/constitution/amendments/2amendment.html
4. [4] https://www.refworld.org/docid/5857ed0e4.html
5. [5] https://pibindia.wordpress.com/2019/12/18/citizenship-amendment-act-2019/
6. [6] https://frontline.thehindu.com/cover-story/article30328790.ece
7. [7] Unstarred Question No. 2432, Rajya Sabha, March 23, 2017. https://rajyasabha.nic.in/
8. [8] https://www.thehindu.com/news/national/mea-clarifies-on-afghan-minorities/article30352279.ece
9. [9] Unstarred Question No. 875, Rajya Sabha, November 23, 2016 https://rajyasabha.nic.in/
10. [10]http://prsindia.org/sites/default/files/bill_files/Joint%20committee%20report%20on%20citizenship%20(A)%20bill.pdf
11. [11] https://pib.gov.in/newsite/PrintRelease.aspx?relid=108152
12. [12] https://indiankanoon.org/doc/27376/
13. [13] https://www.ndtv.com/india-news/assam-detention-centre-inside-indias-1st-detention-centre-for-illegal-immigrants-after-nrc-school-ho-2099626
14. [14] https://www.indiatoday.in/india/story/no-question-of-linking-caa-to-nrc-union-minister-ravi-shankar-prasad-1629020-2019-12-17
15. [15] https://www.youtube.com/watch?v=e5ReBPJWh7A, https://scroll.in/article/947436/who-is-linking-citizenship-act-to-nrc-here-are-five-times-amit-shah-did-so, https://www.youtube.com/watch?v=Z__6E5hPbHg
16. [16] http://censusindia.gov.in/2011-Common/IntroductionToNpr.html
17. [17] https://indianexpress.com/article/india/national-population-register-updation-centre-to-seek-info-on-date-and-place-of-parents-birth-6177564/
18. [18] https://www.indiatoday.in/india/story/some-npr-data-may-may-not-be-used-for-nationwide-nrc-ravi-shankar-prasad-1632378-2019-12-29
19. [19] Citizenship Act (link it)
20. [20] https://timesofindia.indiatimes.com/india/voter-id-card-passport-prove-citizenship-court/articleshow/72643915.cms
21. [21]https://web.archive.org/web/20140407102043/http://www.rbi.org.in/scripts/PublicationsView.aspx?id=15283
22. [22] https://www.unicef.org/publications/files/UNICEF_SOWC_2016.pdf

(Disclaimer: Excerpt prepared from “15 Burning Questions on The CAA and NRC” by law graduates from Gujarat National Law University.)

(Rohini Sen is Assistant Professor and Assistant Dean (International Collaborations), and Assistant Director, Centre for Human Rights Studies. She is an alumnus of NLU-Gujarat, and holds an LLM in International Law from the University of Leeds. She tweets @Rohini_Sen. Views expressed are personal. The Quint neither endorses nor is responsible for them.)