Why examine the 2003 Citizenship Rules?
During the tenure of Vajpayee’s BJP-led NDA-1 government, the Ministry of Home Affairs issued the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003, by Notification G.S.R.937(E) on 10.12.2003. Its infirmities – discussed here – were not rectified/amended/changed by Manmohan Singh’s two successive Congress-led UPA governments (2004-2014), or by Modi’s first (2014-2019) BJP-led NDA-2 government.
The peculiar features of CAA-2019 under the current NDA-3 government drew attention to the 2003 Rules, by means of which a National Population Register (NPR) and the National Register of Citizens (NRC) are created.
The Parliamentary Standing Committee on Home Affairs is reported to have cautioned government that the entire Census process may get stymied due to public dissatisfaction and fears that the NPR exercise clubbed with Census would lead to the NRC. It is remarkable that the Committee did not recognize that the 2003 Rules were made precisely for this purpose.
The NPR process
The NPR process begins at the “local” level, i.e., village, town or city ward or other demarcated area. Enumerators, following “Instruction Manual for Updation of National Population Register (NPR) 2020” acquire details of locally residing persons by door-to-door visits. They then make step-by-step modification/correction of the NPR Data Booklet and NPR Schedule.
A local officer or revenue officer of the town or city ward or village, functions as Local Registrar of Citizen Registration, and prepares the Local Register of Indian Citizens. The details of each enumerated person are compiled at the local level by the Local Registrar to prepare the Population Register.
After “due verification of details” of the persons listed in the Population Register, the Local Registrar prepares the Local Register of Indian Citizens as a Draft.
During the verification process, particulars of individuals whose Citizenship is doubtful, are entered by the Local Registrar with “an appropriate remark” in the Population Register for further enquiry. In cases of doubtful Citizenship, the individual or the family are informed after the verification process is over.
Infirmities of the 2003 Rules
A detailed critique of the 2003 Rules [NOTE] brings out many infirmities:
(a) Inviting objections from any person against inclusion of any person in the Register permits individuals to motivatedly cause harm to others at no risk to themselves. It provides opportunity to implement political agendas, settle personal scores, blackmail and corruption. Given the current atmosphere in the country, there is high probability bordering on certainty, of a religious/politically motivated person/group raising objection to inclusion of particular persons/families in the Local Register.
(b) An objector is even accorded the position of “aggrieved person” having the benefit of the same two levels of appeal by an excluded person to get his/her name included. Further, there is no penalty on the objector if a frivolous or motivated objection is proven wrong. This demonstrates the exclusionary character of the 2003 Rules.
(c) Exclusion from the Local Register would cause the excluded person to suffer at personal, family and economic levels. He/she would appeal to officials at distant Taluk & District headquarters, spending scarce money for travel-accommodation-food for days together at Taluk or District HQ. This disruption of life adversely & irretrievably affects persons from rural socio-economic situations, ruining their mental peace, family life, livelihoods, earnings, children’s schooling, etc. It reduces a citizen to a supplicating, grovelling individual, destroying his/her individual dignity.
(d) Given the reality of public services in our country, the verification/scrutiny powers accorded by the 2003 Rules to officials at different levels to arbitrarily exclude a person/family with devastating finality, provide opportunity for corruption.
(e) When they do not have documents necessary to prove citizenship, citizens will scramble to obtain them. This will give impetus to the fake document industry – already a thriving industry creating fakes for currency, education certificates, Aadhaar cards, etc. – and opportunities for lobbyists, touts, agents and corrupt officials.
(f) The people affected due to “defect in documentation” (not available/ never prepared/ lost in natural disaster, transit etc./ spelling discrepancy/ name different as for married woman/ no corroboratory document/ enumerator or local official not accepting validity, etc.) would suffer indignity and socio-economic loss of having to appeal twice, and accept the disenfranchisement of finally failing, followed by 5-years in a detention camp. According to CAA-2019, he/she would need to prove that he/she is Hindu/Sikh/Xian/Jain/Buddhist/Parsi – Muslims being outside the ambit of this law – and further prove (obviously falsely in most cases) that he/she has come from Afghanistan/ Pakistan/ Bangladesh. All this would need to be done from inside the detention centre, within the same official system which disenfranchised them, all making for more opportunities for the touts, etc.
(g) Assam’s NPR-NRC experience has ended with nearly 2-million people unable to prove their citizenship for want of documents necessary and acceptable to enrolment officials. NRC at national scale would involve many tens of millions.
(h) The negative effect on local economies due to fall in productivity of people absent from job/occupation for producing the document(s), checking the published Local Register, paying touts, etc. and going for appeal is obvious. Every state’s unproductive expenditure will increase for infrastructure for detention centres and running cost of maintaining inmates, salaries, etc. The cumulative downstream effect on State and National economies can be imagined.
(i) The social turmoil due to the difficulties faced by millions of people in proving their citizenship would inevitably heighten existing levels of social unrest.
(j) Aadhaar was started as an “identity” to obviate all other identity documents. Even today, people queue-up at Aadhaar centres for fresh enrolments, correction of errors, changes in details, re-validation of biometrics, etc. Due to the time required to capture biometrics and confirm demographic data, an operator in an Aadhaar centre handles about 30 persons in a working day. This inevitably results in long queues and absence from work (typically more than once) for applicants. If the Aadhaar experience is any indication, the NPR-NRC process would be at least as traumatic for people. An individual failing in the Aadhaar process can mean denial of benefits until Aadhaar is obtained, but failing in the NPR process involves a devastating finality with no recourse.
The NPR-to-NRC process as defined in the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003, enables motivated or targeted exclusion of persons/families in the NRC.
The outcomes of the nation-wide NPR-NRC program may be seriously debilitating from the social and economic perspectives, from local through state to national level. In order to identify illegal immigrants, there is little justification for government to put the entire population through the mill to prove their citizenship, according to Rules loaded with infirmities.
The 2003 Rules are perverse, unjust and prone to misuse, and deserve immediate de-notification. In the national interest the entire NPR-NRC process needs to be reviewed with public consultation.
Detailed critique of the Rules
Rule 4(3) states that for “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 scrutinized by the Local Registrar”, who “may be assisted by one or more persons”. According to Rule 4(4), during the verification process, if the particulars of an individual are deemed doubtful, that person’s name is entered in the Population Register with “appropriate remark”. He then prepares the Local Register of Indian Citizens as a Draft. In case the Local Registrar notes a person’s “doubtful Citizenship”, the individual or family will be informed after the verification process is over. [COMMENT: The method or basis for verification and scrutiny for inclusion are not mentioned, and are apparently discretionary. Discretion to be exercised at “local” level is prone to misuse because the official exercising discretion or the persons assisting him would be acquainted with or have knowledge about sparticular person/families.]
According to Rule 4(5)(a), every person or family against whose name the Local Registrar has entered “doubtful” in the Population Register, “shall be given an opportunity of being heard by the Sub-district or Taluk Registrar of Citizen Registration, before a final decision is taken to include or to exclude their particulars in the National Register of Indian Citizens”. [COMMENT: The reason for “final decision” at the Sub-district or Taluk level to include or exclude a person/family in the National Register of Indian Citizens is unclear. It leaves opportunities for misuse of discretion.]
According to Rule 4(5)(b), after the hearing, the Sub-district or Taluk Registrar shall finalize his findings within 90-days of the entry being made, and according to Rule 4(6)(a), the Draft of the Local Register of Indian Citizens shall be published by the Sub-district or Taluk Registrar, “for inviting any objections or for inclusion of any name or corrections for the family or individual particulars collected and proposed to be finally entered in the National Register of Indian Citizens”. Also, Rule 4(6)(b) reads: “any objection against a particular entry or for inclusion of a name, or corrections if any, in the Local Register of Indian Citizens may be made within a period of 30-days from the date of publication of the draft of the Local Register of Indian Citizens, spelling out the nature and reasons for the objection”. [COMMENT: This is a publication for residents in the “local” area to check. A person who finds his/her name excluded would file objection and ask for inclusion. But “for inviting any objections or for inclusion of any name” enables any person to object to inclusion of another person’s name. This provides avanue for motivated misuse to exclude a person/family from the Local Register.]
According to Rule 4(6)(c), after hearing opportunity is given to the person/family marked as “doubtful” by the Sub-district or Taluk Registrar of Citizen Registration, “the Sub-district or Taluk Registrar shall consider such objections and summarily dispose off [sic] the same within a period of 90-days, and thereafter submit the Local Register of Indian Citizens so prepared to the District Registrar of Citizen Registration who shall cause the entries in the Local Register of Indian Citizens, to be transferred to the National Register of Indian Citizens”. [COMMENT: The official considers objections and “summarily” disposes of the objection. This is arbitrary exercise of power to exclude a person/family from the Local Register of Indian Citizens. It is effectively final, because he then submits it to the District Registrar of Citizen Registration, who in turn transfers the entries from the Local Register of Indian Citizens to the National Register of Indian Citizens. The excluded person has no recourse except going to a court of law, which few have access to or can afford.]
Rule 4(7)(a) reads: “Any person aggrieved by the order of the Sub-district or Taluk Registrar under sub-rule (5) or sub-rule (6), may prefer an appeal within 30-days from the date of such order, to the District Registrar of Citizen Registration”. [COMMENT: An aggrieved person would be one whose name was excluded from the finalized Local Register of Indian Citizens, for being marked “doubtful” by the Local Registrar. But under Rule 4(6), it can also be a person who has objected to inclusion of a particular person/family in the published Draft of the Local Register of Indian Citizens. Thus, a person who has objected earlier but whose objection was proved wrong during verification at the “local” level, is given an opportunity to resolve his “grievance” against the inclusion of a person/family in the list. This reinforces possibly malafide objections. Justice demands that if an objection against inclusion is received and found to be false during verification/scrutiny, the objector should be prosecuted, but in an inversion of justice, this Rule gives him/her status of “aggrieved person”, providing him/her another opportunity to raise objection against inclusion of another person.]
According to Rule 4(7)(b), “The District Registrar of Citizen Registration shall take a final decision, after giving an opportunity of being heard to the person so aggrieved, within a period of 90-days from the date of appeal”. Finally, according to Rule4(7)(c), in case the appeal is allowed, the particulars shall be entered in the National Register of Indian Citizens. [COMMENT: This is yet another “final decision”. If this final appeal is disallowed, the appellant’s name is not included in the Local Register of Indian Citizens, and therefore finally omitted from the National Register of Indian Citizens, with no other recourse. But the appellant could also be any person (by Rule 4(6)(b)) who has objected to an individual/family being included in the Draft register. Thus, a person who has objected earlier but whose objection was proved wrong by verification/scrutiny at the Sub-district or Taluk level level, is given yet another opportunity at the District level to resolve his “grievance” against the inclusion of a person/family in the list. This magnifies perverse injustice as it provides further opportunity for engineering motivated exclusion of any person/family.]
Under Rule 6, every individual must get himself registered with the Local Registrar of Citizen Registration during the period of country-wide initialization of the National Register of Indian Citizens, which would be notified by the Registrar General of Citizen Registration. [COMMENT: Failing to do so for any reason like long absence (migrant labour, travel, etc.) will be a violation, attracting penalty.]
Under Rule 7, it is compulsory for every Citizen of India to assist the officials responsible for preparation of the National Register of Indian Citizens under Rule 4, and get himself registered in the Local Register of Indian Citizens during the period of initialization. Further, it is the responsibility of every Citizen to register once with the Local Registrar of Citizen Registration and to provide correct individual particulars to that authority. [COMMENT: Assigning responsibility to “every Citizen” is strange, because this is even before the individual has passed the verification/scrutiny process to become a citizen. This may be a mere technicality, but it shows inconsistency in the Rules.]
Under Rule 8, the District Registrar, Sub-district or Taluk Registrar or the Local Registrar of Citizen Registration may, by order, require any person to furnish any information within his knowledge in connection with the determination of Citizenship status of any person and the person required to furnish information shall be bound to comply with such requisition. [COMMENT: An official calling upon any person to provide any information within his knowledge about any other person concerning that other person’s citizenship status reinforces the comments on Rules 4(5), 4(6) & 4(7). It amply demonstrates that far from calling for information to include a person/family in the Register, it is prone to motivated influence on officials to cause exclusion from the Register.]
According to Rule 10(1)(iv), the name and particulars of a Citizen may be removed from the National Register of Indian Citizens by an order of the Registrar General of Citizen Registration or any officer authorized by him in this behalf. the particulars provided by the individual or the family found to be incorrect subsequently, thereby affecting the Citizenship status of the person. [COMMENT: It is unclear how the information is “subsequently” found to be incorrect, except by invoking Rule 8, commented upon earlier.]
Under Rule 16(5), the Registrar General of Citizen Registration or any officer authorized by him at any time may call for any records for examination, and issue directions regarding inclusion or exclusion of any individual or family particulars from the Population. [COMMENT: This is arbitrary power given to the Registrar General, who could be influenced by powerful persons to review any person’s record of Citizenship.]
Under Rule 17, any violation of provisions of rules 5, 7, 8, 10, 11 and 14 shall be punishable with fine which may extend to one thousand rupees. [COMMENT: This appears to be a relatively minor cash penalty (although not for a poor person) but it can extend to that person being excluded from the Register of Citizens, which is serious.]
Finally, under Rule 13, every citizen (every individual whose name is in the National Register of Indian Citizens) will be issued with a National Identity Card whose twelve particulars (described in Rule3(3) (i) to (xii)) are entered in the National Register of Indian Citizens. [COMMENT: The NIC is yet another identity card following Aadhaar.]
Responsibility of the State or the citizen?
It is ordinarily understood that “burden of proof” is a legal duty. In crimes committed against the State, the Prosecutor in a court of law performs the legal duty of proving that a crime has been committed, producing the accused person in court, and proving that he has committed the crime.
In the matter of illegal immigration, the illegal immigrant commits a crime against the State. The police or other State authority detects a person suspected to be an illegal entrant into the country, investigates into his residence and other connected matters, and registers a case. The State (Prosecutor) charges the person for illegal entry/residence/immigration and proves that the accused is guilty as charged. The accused either pleads guilty and accepts the verdict of the court, or else produces evidence and arguments in his defence to the satisfaction of the court that he is not an illegal immigrant. Indeed, in Md.Alimuddin v. State of Assam, 1992 [Cri.L.J.3287], it was held that even if the defence evidence was false, so long as the prosecution does not discharge its initial burden of proving the case beyond all reasonable doubt, it cannot derive advantage from the falsity of the defence version. Thus, it is the legal duty of the State to prove its case even if the defendant is shown to be a liar.
However, if Government rules that every individual needs to prove that he is a bonafide citizen to the satisfaction of the State, the State in effect accuses every individual of being an illegal entrant/resident/immigrant. It would be the legal duty of the State to prosecute every individual and to discharge its burden of proving the charge. A layperson like the present writer may be excused if he thought this would create an unmanageable situation for a population of 130-crores, and that it would be logical and sensible for the police or other State authority to deploy its intelligence and investigative forces to identify suspected illegal entrants/ residents/ immigrants and proceed against them.
However, by notifying the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003 [Rules, for short hereinafter], the State has initiated creation of a National Population Register (NPR) as part of the door-to-door Census process, leading to creating NRC. In this process, every individual is expected to provide/produce specified documents to satisfy the State official that his name deserves to be entered in the NRC. A person whose name is not found in the NRC is not a citizen.
As an analogy, it is like the Police expecting all Mohalla residents to provide proof of their innocence in a murder that took place in that Mohalla. Such an expectation assumes that all residents are felons unless they can prove otherwise. It insults the dignity of the individual, displays Police inability to detect and apprehend the murderer, and transfers the burden of proving innocence onto the accused.
The NPR-NRC process requires all resident individuals/families to prove their citizenship and in default be deemed as illegal immigrants. It creates a situation which puts all of India’s population to untold trouble, misery, expense and loss, for each of them to provide/produce documents to prove to the satisfaction of an official that he/she deserves to have his/her name included in the NRC.
It is a process fraught with infirmities, making implementation of the Rules violative of the dignity of the individual, prone to error and misuse of official power, unjust and unfair. What follows is an attempt to show how the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003, are essentially exclusionary in character because the burden of proof of citizenship is on the individual.
S.G.Vombatkere was awarded Visishta Seva Medal (VSM) in 1994 for distinguished military service rendered in Ladakh, and retired after 35 years in uniform with the rank of major general from the post of Additional DG in charge of Discipline & Vigilance at Army HQ. Email:<email@example.com>