Defying the legalisation of the unjustifiable

The Citizenship Act protests are a reminder that civil liberties and rights apply to even those whom the state may hate

January 04, 2020 12:02 am | Updated 01:05 am IST

Widespread protests against the National Register of Citizens (NRC) and the Citizenship (Amendment) Act, or CAA, 2019, have severely dented the image of the Narendra Modi government. Trying to repair the damage while pushing ahead with their divisive agenda, the regime’s spokespersons have repeatedly asserted that the recently approved National Population Register (NPR) is not new, not related to the NRC, and not something to worry about. Only the first of these three claims is partially true, and only in a literal sense.

A powerful instrument

It is indeed true that the NPR is envisioned in the Citizenship Act of 1955, and that it was revived by the Atal Bihari Vajpayee-led National Democratic Alliance (NDA) government when it amended the citizenship Act and rules in 2003. It is also true that the Congress-led United Progressive Alliance (UPA) first implemented it in 2010 along with the 2011 Census. However, to say that there is nothing new about the NPR in today’s transformed context is to speak in bad faith. The addition of unnecessary intrusive questions — on the place and date of birth of each parent, place of last residence, and Aadhaar, PAN (Permanent Account Number), driving licence, voter card and mobile phone numbers – makes it far more potent as an instrument of surveillance and harassment. Add the statements linking it to the NRC made in the recent past by representatives of the present government, and it is obvious why, unlike its first incarnation, the 2020 avatar of the NPR is being seen as a rudra or terrifying avatar.

Violation of norms

Modern governance requires states to collect two broad kinds of data based on individuation and aggregation. Individuating data provides information on specific individuals, while aggregating data profiles groups or collectivities. Group-oriented data also begins with particular persons, but aggregation masks or “anonymises” them, thus yielding information only on collectivities such as illiterate persons or tax payers. Individual-oriented data is also pooled and consolidated, but the specific persons it covers remain identifiable. Norms of good governance dictate that the scope of individuating data be restricted, and that, on the other hand, databases with universal or wide coverage be confined to aggregated data that cannot identify individuals. The government’s relentless effort to push for maximum individuation along with maximum coverage violates and reverses established norms regulating the collection of social statistics.

The probable consequences of this reversal are illustrated by the contrary example of the Indian census, where the assurance of anonymity balances the coercive legal force of the state. The Census Act, 1948 requires all persons residing on Indian territory to truthfully answer the schedules canvassed by the enumerators of the Census of India — failure to do so is punishable with a fine. However, most Indians may not be aware that Section 11 of the same Act imposes even higher penalties on officials who falsify or disclose census data – they may also be jailed for three years. In fact, unpublished census data cannot be accessed by government departments, and Section 15 of the Census Act exempts it from the Indian Evidence Act so that it cannot be used in courts of law.

Weakening of anonymity

To appreciate the full significance of this commitment to anonymity, consider the fact that the 2011 Census revealed that, between 2007 and 2011, 74 lakh Indians were married below the legal age of 18. Under the Prohibition of Child Marriage Act, 2006, those responsible are liable to be fined up to ₹1 lakh and/or imprisoned for up to two years. And yet the Census data cannot be used to identify them — it can only tell us, at best, that the incidence of under-age marriages is the highest in districts like Bhilwara and Chittorgarh, Rajasthan. In sharp contrast, the NPR, and especially the NRC offer no anonymity while collecting actionable personal data, but nevertheless impose coercive, census-like universal coverage.

To be sure, states do need to collect individuating data, which is usually justified by invoking national security or the efficient targeting of welfare benefits. We also know that throughout history, states have collected information on groups such as criminals or political rivals. However, such exercises are of limited scope; they do not compulsorily include the entire population. They also have internal safeguards and/or offer clear benefits for respondents. It is noteworthy that the NPR and the NRC include none of these features. Actually, the NPR is nothing like the Census – it is only logistical efficiency that makes the former use the proven field machinery of the latter. It is also a logically, practically and politically necessary precondition for the NRC, without which it is pointless.

Faith in the state

Ultimately, the key question is that of the people’s faith in the state. In ex-colonies such as India that have won their independence through a freedom struggle, the post-colonial state gains a priceless inheritance of popular trust. After all, most people are unaware of the safeguards for anonymity built into the census; and yet they freely provide information because they trust the government. It is this trust that the present government seems determined to squander.

What is all this for? Imagine that the NPR-NRC exercise has been completed successfully, and has identified ‘x’ lakh “non-citizens”. What then? The only “plan” the government seems to have is to convert these ‘x’lakh self-supporting persons, who have presumably contributed to their local economies, into permanent inmates of detention centres and eternal wards of the state. Since such a plan clearly makes no sense as policy, we have to turn to alternative explanations.

As Kautilya, Machiavelli and Foucault remind us in their various ways, the point of the law is to exercise power. Laws are not necessarily meant to abolish whatever they render illegal; they are meant to trap particular subjects and practices in zones of illegality where they will be most susceptible to power. Graded or hierarchical citizenship has been unjustifiable in our republic, though it has been integral to our social practice. The NPR-NRC and CAA initiatives seem designed to coerce us into legalising the unjustifiable and normalising indefensible prejudices.

And once the forces behind these initiatives have tasted victory, why will they stop? For there is no end to prejudices in our hierarchy-saturated culture.

But the nation-wide protests tell us that the story is far from finished. They remind those who think they are our rulers of two crucial truths. First, that civil liberties and democratic rights are defined by the inconvenient fact that they must also be granted to those whom we may fear, hate or despise. And second, that the most rudra of rudraavatars are a people who have lost faith in their state.

Satish Deshpande teaches Sociology at Delhi University. The views expressed are personal

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