Has the legal framework surrounding the National Register of Citizens slipped under the radar amidst the heated debate on the Citizenship (Amendment) Act? A reason the NRC framework itself has not come in for close scrutiny is perhaps the common belief that there exists no such legal framework. This is factually incorrect. Pursuant to Section 18 of the Citizenship Act, 1995 (the “Act”), the government has framed the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003 (“2003 Rules”). These rules mandate that the Registrar General of Citizen Registration shall establish and maintain the NRC. Rule 4(1) explicitly exhibits the intention of the government to carry out a nationwide NRC.
The process of verification first involves preparation of a Local Register of Citizens by a local registrar. As per Rules 4(4) and 4(5) of the 2003 Regulations, during the verification process, “doubtful” citizens shall be identified and such “doubtful” citizens shall be given an opportunity of being heard by the sub-district or taluk registrar of citizen registration, before a decision is taken to include or to exclude their particulars in a local register. Rule 4(7)(a) provides an aggrieved person with a right of appeal (within a period of 30 days) before the district registrar of citizen registration, which shall be decided within 90 days. Moreover, as per the said provisions and Foreigners (Tribunals) Amendment Order, 2019, the Centre, state government, Union Territory and the district magistrate can refer the question of whether a person is a foreigner or not to the Tribunal (“Designated Tribunal”) established under the Foreign (Tribunals) Order, 1964(“FTO”).
A separate regime is provided for Assam by virtue of Rule 4A read with the Schedule to 2003 Rules in furtherance of the Assam Accord dated 15.08.1985 (“Assam Accord”). Following the 2009 amendment to the 2003 Rules, in the case of Assam alone, a person aggrieved by a decision on his/ her citizenship status has a right to approach the Designated Tribunal. Serious concerns: The existing framework consists of a number of serious irregularities. First, the Act does not set out the guidelines and framework within which such decision-making on citizenship takes place. It is a settled principle of administrative law that delegation of unbridled powers to the executive based on a failure to set out a legislative framework for this delegation is invalid.
In the present case, the effect of the excessive delegation is that various local registrars may apply different criteria to decide on whether someone is a “doubtful” citizen. One local registrar may proceed on a “documents only” basis while another may rely on oral evidence of neighbours. The absence of clear criteria is likely to provide a wide spectrum of results across the country. While Rule 9 and Rule 18 of the 2003 Rules provide the executive with a further power to frame procedures and guidelines to be followed, there are no guidelines available in public domain to show that such a procedure has been framed. Further, such a sub-delegation of essential legislation function is itself questionable. Second, where a decision is likely to impact human rights, it is crucial that the decision-making process be judicial/ quasi-judicial in nature. (Bidi Supply Co. v. Union of India). At the end of the day, keeping in mind the ground realities in India, it is likely that a number of Indian citizens would not have documentary backing to establish citizenship. In such a scenario, it is crucial that relevant oral evidence (such as testimonies of neighbours) be appreciated by following a judicial process. In the present case, such decision-making is left entirely to the whims of the executive.
It is only when the executive deems fit, can the issue be referred to the Designated Tribunal as opposed to the Register of Citizens where an aggrieved party is provided an appellate remedy before the Designated Tribunal. While no doubt the case of Assam would be governed by the Assam Accord and hence the criteria to be applied would be different, the nature of decision-making pertaining to the status of an individual would not change. Hence, it is arbitrary that the 2003 Rules read with the amendments to the FTO recognise an appeal before a judicial forum for Assam but not for the rest of India. Third, even when one looks at the constitution of the Designated Tribunals, no basic criteria in relation to judicial experience has been laid down. Even when it comes to tribunals such as the National Company Law Tribunal which have a lesser impact on human rights, the Supreme Court has asserted the importance of having significant judicial experience (Union of India v. R. Gandhi).
That the judicial experience required for becoming a Member of the Designated Tribunal is not specified would be a fatal flaw. 2003 Rules acted upon: To state that the NRC is not likely to be a reality in the near future is a myth. The 2003 Rules, with all its fundamental flaws as set out above, have been acted upon vide notifications dated 15.07.2009, 15.03.2010, 25.06.2015 and 31.07.2019, each of which provide for updating the “Population Register” for different parts of the country. The latest notification dated 31.07.2019 sets a deadline of 30.09.2020 for completion of the process. Each of these notifications have been issued pursuant to Rule 3(4) of the 2003 Rules. The consequences of a person being classified as a “doubtful” citizen and omitted from the NRC is that the person would automatically become an “illegal immigrant”/ “foreigner”(subject to visa regulations) pursuant to the Foreigners Act, 1946, and would be susceptible to penal measures including arrest, detainment, confinement, deportation, etc. The consequences of the NRC exercise that is palpably flawed are therefore drastic.
Anirudh Krishnan Email: firstname.lastname@example.org
Adith Narayan Email: email@example.com
Both authors are advocates in the Madras High Court. Anirudh is the co-author of The Law of Reservation and Anti-Discrimination