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Understanding the Citizenship (Amendment) Bill, 2019

The misadventure of a new citizenship regime

The rationale for a nationwide register of citizens, its feasibility, and, above all, its moral legitimacy, are questionable

November 27, 2019 12:02 am | Updated 12:33 am IST

The appetite of the Indian state for counting its people is evidently insatiable. The Office of the Registrar General and Census Commissioner has completed a 10-year project of data collection, at the household level, for the Census of 2021. The individual level data collection for the National Population Register is also to be uploaded next summer, alongside the Census. As of January 2019, nearly 123 crore Aadhaar cards had been issued. In Parliament, recently, yet another exercise in counting was proposed, for a nationwide National Register of Citizens (NRC). While its predecessors were counting “residents” rather than “citizens”, the objective of this latest initiative is to count citizens — specifically to sift and sort citizens from non-citizens, to include and exclude, and having done so to weed out “infiltrators” destined for detention camps and potential deportation.

Taint of a label

The rationale for a nationwide NRC, its feasibility, and, above all, its moral legitimacy, are questionable. Under the Foreigners’ Act, 1946, the burden of proof rests on the individual charged with being a foreigner. Since the Citizenship Act provides no independent mechanism for identifying aliens — remember the Supreme Court struck down the Illegal Migrants (Determination by Tribunal) Act, or IMDT Act, in 2005 — the NRC effectively places an entire population under suspicion of alienage. With what justification can a state that does not have the ability to “detect” aliens, or even to secure its borders against illegal immigrants, set out to find aliens by elimination? This is tantamount not only to using an elephant to crush an ant, but of torturing the elephant to do it.

The cost of ‘authentication’

Let us also consider the resources needed to conduct such an NRC before discussing the deep moral misgivings such a project must provoke. The Assam NRC is reported to have cost ₹1,600 crore with 50,000 officials deployed to enrol almost 3.3 crore applicants in an exercise that even its champions acknowledge to be deeply flawed, as it ended up excluding 19 lakh people. On this basis, and taking as an indicative number the Indian electorate of 87.9 crore, a nationwide NRC would require an outlay of ₹4.26 lakh crore, which is more than double the presumptive loss in the 2G scam, and four times the budgetary outlay for education this year.

The work of “authenticating” 87.9 crore people would entail the deployment of 1.33 crore officials. In 2011-12 (the most recent official data available), the total number of government employees in India was 2.9 crore. If, like the Census, this exercise is to be managed exclusively by the Central government, the additional personnel needed would make this a truly novel employment generation programme. One way or another, the entire population of India and more than half its government officials will be involved, for at least the next 10 years, in counting and being counted — by all reckonings, an exceptionally productive contribution to the nation’s Gross National Happiness. The remainder can be involved in building the new detention centres that will be needed to incarcerate the unhappily excluded.

While the limitations of administrative capacity in India are a public secret, this is a nightmarish prospect for poor and unlettered citizens whose ancestors have known no other land but this, but who are unable to produce acceptable documentation. Few lessons have evidently been learned from the Assam experience that yielded unanticipated outcomes, especially unwelcome to those who were most enthusiastic about it. We would be silly to shut our eyes to the practices of “paper citizenship” acquired through what Kamal Sadiq has called “networks of kinship” and “networks of profit”.. As in Assam, such an enrolment drive could actually put undocumented nationals at risk of losing their citizenship in a futile search for non-national migrants who are invariably better documented. The fear of not having papers has already led to many suicides; we should brace ourselves for many more.

Among the many uncertainties that persist is that about the cut-off date. March 1971 has little relevance beyond Assam. The speculation about a July 1948 date for the rest of India is implausible in light of constitutional provisions, post-Partition jurisprudence, and the enactment of the Citizenship Act in 1955. Second, will enrolment in the NRC be compulsory or voluntary (as in Assam), and what might the consequences of not seeking registration be? Finally, there is the federal imperative of seeking the consent of State governments. Already, many States in northeast India are erupting in protest. It is sobering to recall that political considerations alone have prevented the implementation, for over two decades, of the Supreme Court ruling awarding citizenship to Chakma and Hajong tribals in Arunachal Pradesh.

If the NRC carves out paths to statelessness for groups that are disfavoured, the Citizenship Amendment Bill creates paths to citizenship for preferred groups. The implicit assumption in the NRC is that the infiltrators are Bangladeshis (read Muslims) who must be disenfranchised and stripped of any markers of citizenship that they may have illegitimately acquired. The explicit promise of citizenship in the CAB is to migrants belonging to specified religious groups — all except Muslims — who will be eligible for fast-track citizenship because they are persecuted minorities in Afghanistan, Bangladesh and Pakistan. The Bill does not specify what, if any, evidence would be required for validating claims of religious persecution. Nor does it offer similar respite to the victims of sectarian religious persecution in neighbouring countries, such as the Ahmadiyas or the Rohingyas.

Weak assurances

It has been unequivocally asserted in Parliament that the NRC and the CAB are unrelated. Such assurances are however unlikely to assuage the anxieties of Muslim citizens given the larger ecosystem for minorities in India. Vigilante violence against minorities and legal impunity for its perpetrators, the triple talaq legislation and the reading down of Article 370, are suggestive of a state-society consensus on the status of minorities as second-class citizens in the New India.

The cumulative import of these developments is the entrenchment of a conception of citizenship inconsistent with that adopted at Independence. At the end of a prolonged debate on citizenship, the Constituent Assembly settled on the principle of jus soli or birth-based citizenship as being “enlightened, modern, civilized” as opposed to the “racial citizenship” implied by the rival descent-based principle of jus sanguinis . A shift from soil to blood as the basis of citizenship began to occur from 1985 onwards. In 2004, an exception to birth-based citizenship was created for individuals born in India but having one parent who was an illegal migrant (impliedly Bangladeshi Muslim) at the time of their birth. The CAB and the NRC will only consolidate this shift to a jus sanguinis citizenship regime.

Constitutionally, India is a political community whose citizens avow the idea of the nation as a civic entity, transcending ethnic differences. The NRC-CAB combination signals a transformative shift from a civic-national conception to an ethno-national conception of India, as a political community in which identity determines gradations of citizenship.

In the final analysis, the minutiae of implementation —from cut-off dates to resource constraints — are only cautionary arguments against this potential misadventure. The compelling argument against it lies in its adverse repercussions for the delicate but fraying plural social fabric of this nation; for the civilisational qualities of humaneness and hospitality that have marked our history; and, above all, for the equality of citizenship, based on birth and without regard to creed, that our Constitution guarantees.

Niraja Gopal Jayal is Professor, Centre for the Study of Law and Governance, Jawaharlal Nehru University, New Delhi

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