Mohammed Samiur Rahman | Caravan Daily
SHADE 1: Legal aspects of the Citizenship Amendment Act 2019: There are those who claim that CAA, on its own, is not the issue; but linking it with NRC makes it vulnerable. Note the following legal aspects to ascertain how dangerous the CAA is on its own, based on its legal merits.
Indian citizenship can be acquired by the following ways: By birth, by descent, by registration and by naturalization. Before the amendment, a foreigner can acquire the citizenship by applying for citizenship under Section 6, if he is a resident in India, not an illegal immigrant, for an aggregate of 11 years. Now, after the amendment, a foreigner including an illegal immigrant will be granted citizenship even without the illegal immigrant applying for it, if he is resident in India for a period of 6 years after the cut-off date, December 31, 2014.
The beneficiaries of the amendment are the Hindus, Sikhs, Christians, Buddhists, Jains and Parsis from Pakistan, Bangladesh and Afghanistan. It excludes the Muslim community and those from other neighbouring countries like Sri Lanka, Bhutan etc. The central government says the special consideration is given to the above-mentioned communities based on the belief that they are the persecuted minorities in Pakistan, Bangladesh and Afghanistan.
The amendment has many flaws as regards its legality. The very sanctity of the law is in question as it clearly violates Article 14 of the Constitution of India. Article 14 provides for equality before the law or equal protection of the law to one and all within the territory of India. It states: “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”
Article 14 has two important phrases – by “equality before the law”, it means no one is above the law. In other words, the privileged, the underprivileged and the unprivileged are equal before law. “Equal protection of the law” means law provides equal opportunities to all those who are in similar circumstances or situations. This phrase is slightly positive in nature – ie, law will make sure that equal level playing field is provided to every person.
NOT JUST CITIZENS
It is worthy of note that Article 14 is applicable to every individual and not to the citizens alone. Hence, Article 14 is applicable to non-citizens also. In the light of Article 14, the recent amendment made to the Act is not tenable in law. The claims made by central government for amendment of the Act are not valid based on the following points:
1. Though Article 14 provides exemptions based on the principle of “equal protection of laws”, such exemption cannot be arbitrary. In other words, exemptions cannot be given on a ‘pick and choose’ basis. Hence, selecting only three countries and leaving other neighbouring countries is not justified.
2. The central government trying to defend the amendment by claiming that selection of these three countries is a reasonable classification as the partition in 1947 had led to acts of persecution. However, the claim is not valid as Afghanistan was not part of undivided India at the time of partition.
3. It is not true that the persecution was done to only these six communities in these countries.
4. As per Article 14, if exemption is given, it has to be general in nature and a reasonable classification can be done based on the circumstances, but certainly not on the basis of one’s religious belief. It is not “equal protection of the law’ if a particular community is excluded.
5. A foreigner not covered under the latest amendment has to apply for citizenship only after he is resident in India for 11 out of 14 years, whereas the period of stay for those six communities from these three countries is only 6 years. There cannot be two different yardsticks, or different period of stay for different classes based on religion. Currently, if we consider CAA alone without linking it to NRC, it is clearly visible that, for the very first time in India, the religion of a person has become the criterion for Indian citizenship. This is unprecedented in law and not tenable.
MORE IN FUTURE
Based on this short analysis, it can be understood that the present amendment dilutes the basis of citizenship and must be rolled back in the light of Article 14 and the preamble of the Constitution. If this amendment is accepted now, it will be on the discretion of the government to amend it further in later days, as the basis of citizenship is already diluted. “A stitch in time saves nine.”
CAA with NRC not only violates Article 14 but also the following articles: 1. Article 15: It prohibits discrimination of Indians on the basis of religion, race, caste, sex or place of birth
Article 21: This is to prevent encroachment upon personal liberty and deprivation of life except according to procedure established by law. It clearly means that this fundamental right has been provided against the state only.
There are other social and financial aspects which are not discussed here; only the legal aspects have been covered. The social, economic, political and religious factors will be covered separately.
Expectations are that the Supreme Court, while hearing the case on January 22, will take note of these and other legal aspects in the light of Article 14 of the Constitution to decide on the fate of our country’s future.
SHADE 2: Financial aspects of NRC/NPR: India’s GDP is struggling at 4.5 per cent in the third quarter of 2019 and is not expected to rise more than 5.5 per cent in FY 2020. Due to this, rating agencies have downgraded the credit rating of India with a negative outlook. For the purpose, the Union Cabinet has approved an expenditure of Rs.13,000crore. It consists of Rs.8,754.23crore for the exercise of Census of India 2021, and Rs.3,941.35crore for updation of the National Population Register.
In Year 2011, when the last census was conducted, an expenditure of Rs 2,200crore was incurred — with the per capita cost being less than Rs.18.33; the population at that time being of 124.7 crore. The current budget for Census 2021 is Rs.8,754.23crore, which results in a per capita cost not less than Rs.64.03, with a population of 136.67crore.
To put it simply, having taken the increase in population and the cost inflation index for 2019-2020, the per capita cost should be no more than Rs. 32.24. It is shocking to observe that the budget allocated for Census alone (not including the NPR expenditure of Rs.3,941.35crore) is two-fold of what was spent for the previous census; as the per capita cost is above Rs. 64 now.
Why did the government allocate a double of the expenditure required for the Census? Is it trying to implement NRC through NPR and the Census exercise?
Though PM Modi has said no one talked about NRC ever since he took office in 2014 (everyone knows who is talking about NRC!) and that “NRC is not being implemented currently”. However, the allocation of a huge budget for the purpose suggests otherwise. It hints that the government is trying to implement NRC through the covert route of NPR/Census exercise, in view of the ongoing strong reaction against the CAA/NRC from every nook and corner.
It is worth the while to note that NPR is not just a traditional census. Technically, the NPR is a catalogue of ‘usual residents’ based on their place of residence while the NRC is a process to register Indian citizens with the objective of identifying “infiltrators”. However, perceptions are that the NPR at this stage can easily be a prelude to the divisive NRC, to be carried out nationally. This is because the 2003 Citizenship Act rules specifically envisage the creation of an NRC from the NPR master list. The process is spelt out in the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003:
“For the purposes of preparation and inclusion in the Local Register of Indian Citizens, the particulars collected of every family and individual in the Population Register shall be verified and scrutinised by the Local Registrar. During the verification process, particulars of such individuals, whose Citizenship is doubtful, shall be entered by the Local Registrar with appropriate remark in the Population Register for further enquiry and in case of doubtful Citizenship, the individual or the family shall be informed in a specified proforma immediately after the verification process is over.”
FATE OF ASSAM NRC
Last but not the least, note what was the fate of the Asaam NRC. The expenditure incurred for Assam NRC was Rs.1,220crore. A total of 52,000 employees were enaged for 10 years to carry out this exercise and this eventually proved to be a fruitless exercise. Many anomalies were observed. The nationwide NRC is not simply a mistake; it will be a bigger blunder than demonetization.
It can be concluded that NRC is uncalled for and fruitless exercise with no benefits whatsoever. Rather, it will be a huge financial burden on the nation, faced with an already declining economic growth. National Herald has published an article on the financial aspects of NRC. Here is the headline: Does Amit Shah even understand what NRC will cost? Fact is, NRC will cost ₹50,000cr by way of administrative expenses, ₹2-3lakh crore to construct and maintain detention camps and ₹36,000crore to just feed, say, 2crore illegal immigrants – all, expenses that the Indian taxpayers will pay.