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21 st Century Citizenship in India: Status of National Population Register (NPR) and National Register of Indian Citizens (NRIC) 1 Introduction

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Abstract

The concept and reality of 'Citizenship' is taking a transformative shift towards disenfranchising and public exclusion of millions of usual residents of India. It is just over a year since the 17 th general elections enabled the NDA government formation, subsequent to which the union home ministry is working overdrive to prepare National Population Register (NPR) which is a precursor to a nationwide National Register of Indian Citizens (NRIC). The NRIC will certainly exclude millions of Indian citizens dominantly due to non-availability of documentary proof of birth, death, marriage, domicile and so on. This paper argues that NPR is not a routine data collection activity, therefore should not be tagged on to the Census houselisting operations set to begin during 2020, although they are suspended due to Health Shock of Covid-19. Note that NPR data collection is inessential, expensive, and even illegal.
Shariff and Shamshad / ashariff@usindiapolicy.org
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21st Century Citizenship in India:
Status of National Population Register (NPR) and National Register of
Indian Citizens (NRIC)
1
Abusaleh Shariff, Ph. D
Centre for Research and Debates in Development Policy, New Delhi; andUS-India Policy
Institute, Washington D. C.
and
M. R. Shamshad
Advocate on RecordSupreme Court of India, New Delhi.
Abstract:
The concept and reality of ‘Citizenship’ is taking a transformative shift towards
disenfranchising and public exclusion of millions of usual residents of India. It is just over a
year since the 17th general elections enabled the NDA government formation, subsequent to
which the union home ministry is working overdrive to prepare National Population Register
(NPR) which is a precursor to a nationwide National Register of Indian Citizens (NRIC). The
NRIC will certainly exclude millions of Indian citizens dominantly due to non-availability of
documentary proof of birth, death, marriage, domicile and so on. This paper argues that NPR
is not a routine data collection activity, therefore should not be tagged on to the Census
houselisting operations set to begin during 2020, although they are suspended due to Health
Shock of Covid-19. Note that NPR data collection is inessential, expensive, and even illegal.
--
Key Words: Citizenship, National Population Register, exclusion, documentation,
transformative shift, India
Shariff and Shamshad / ashariff@usindiapolicy.org
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Introduction:
India is a large country with a vast geography and over 1.3 billion people living in it. As on
March 2020, the country is administratively divided in to 28 states and 8 Union Territories.
Bordering around it in the West is Pakistan, in the North-East is China, Nepal and Bhutan,
Bangladesh and Myanmar to its East and Sri Lanka to its immediate South. There are many
international border and geographic inconsistencies practically with all countries surrounding
India. Further, due to historic-factual inconsistences at the time of partition many cross-
border migration issues with Pakistan, Bangladesh, China, and Nepal remain unsettled. It is
crucial to note that the current map of India, approved by national government, is not the one
used by the international institutions such as the United Nations. Not only these historic and
geographic aspects make India a melting pot of international tensions and strained foreign
relations due to disputed borders but also amplifying the task of assigning citizenship to
masses who reside around such borders and of specified religious minorities.
It is a fact that most recent social conflicts have sprung up domestically yet have a tangential
but legal reference to unsettled international migration issues. Recently, an Indian law
Citizenship Amendment Act (CAA) -2019 provides for grant of citizenship to the
‘persecuted minorities’ from select neighboring countries namely Pakistan, Bangladesh and
Afghanistan. This provision amounts to selective grant of citizenship based on region as well
as religion. The minorities in the above-named countries are identified as those belonging to
‘Hindu, Sikh, Buddhist, Jain, Parsi or Christian’; which excludes Muslims (who are dominant
residents), Jews, non- religious individuals, and atheists. Note that there are many other
neighboring countries namely Sri Lanka, Myanmar, Nepal, and Bhutan that are excluded.
There are instances of persecution of Muslims in Myanmar and the Muslims and ethnic
Tamils in Sri Lanka who do not qualify for Indian citizenship. Although this law appears
virtuous and protects the persecuted, in other words a gift of India to the humanity; one can at
the outset argue that CAA-2019 is discriminatory as it is based on religions and regional
differentiation. What is dangerous is its alternative and tangential use to declare millions of
bonafide Indians as doubtful citizens for lack of documents as evidence of their citizenship
(more later). India, a developing economy is only recently improving its documentary
systems and universal implementation of the civil registration scheme which promotes
‘birth’, ‘death’ and ‘marriage’ registration. As on date it would be appropriate to point out
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that over one half all Indian residents especially the old, women, those whole live in rural
areas and economically categorized as below the poverty line would not own any of the
above stated civil registration documents essential to prove once citizenship.
The United Nations High Commissioner for Human Rights through an amicus curiae has
challenged the CAA-2019 in the Indian Supreme Court
2
. While they commend and
appreciate CAA 2019 on the ground that it ‘benefit thousands of migrants in irregular
situations’; yet has pleaded that it ‘raises other equally important human rights issue
including its compatibility in relation to the rights to equality before law and non-
discrimination on nationality grounds under India’s human rights obligations. Also states
that it was essential obligation of the State to eradicate discrimination in public and private
spheres.
Many recent legal enactments in India are discriminatory especially towards the Muslims -
the largest of the minorities. Untenable justifications, intentionally within the domain of
administration and even legal framework are advanced to sustain such discriminatory
distinctions. Publications abound supporting the BJP/NDA’s expressed enthusiasm favoring
‘Radical Hindutva’, the concept which has sprung up since 2014 but more conspicuously
since the conclusion of the 17th general elections and formulation of NDA-2 government
from May 2019. Another landmark of this year is COVID-19, and as its impact gets
normalized during 2020 the ugly heads of the Nation Population Register (NPR) and National
Register of Indian Citizens (NRIC) along with CAA will gain grounds in public policy and
administrative implementations.
The authors are of the opinion that the whole exercise of NPR and NRIC should not be a
priority because the history and numbers of the so-called illegal migrants to India are
miniscule compared to the massive total population of India; and a different methodology
must be used to identify them. As planned by the union government, the NPR and NRIC is a
national wide exercise where it is every usual resident’s responsibility to prove that he/she is
an Indian citizen which is a case of impossibility due to historic administrative lapses of non-
issuance of documents for births, marriages and deaths all over the country.
Shariff and Shamshad / ashariff@usindiapolicy.org
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Until 2009, since the Independence of India, the Indian Citizenship Law has been ‘religion’
and ‘region’ neutral. The Parliament did debate
3
the issue of citizenship soon after the
Independence when the Indian Constitution took shape, which itemized detailed provisions
for Citizenship
4
. The Central Legislation came up with the Citizenship Act 1955 (in short,
‘Act of 1955’) which was amended several times incorporating additional measures
regulating the grant of citizenship. ‘The Citizenship Amendment Act, 2019 (in short ‘CAA-
2019’) is the most recent enactment of the Central (Federal/National) government. For the
first time this amendment enables granting Citizenship to an individual based on the ‘Region
or Country’ and individuals own ‘Religion’. The provisions under section 2 of the Act of
1955 defines an ‘illegal migrant’
5
and further a new ‘Section 6B’ gives effect to the proviso
added in section 2 in the Act of 1955.
The Citizenship Rules-2003: Registration of Citizens and Issue of National
Identity Cards
In 2003, the Original Citizenship Act of 1955 was amended by introducing a ‘Section 14A’
with an aim to create the National Register of Indian Citizen (NRIC); and framed a set of
Rules called ‘The Citizenship Rules-2003, Registration of Citizens and Issue of National
Identity Cards
6
(hereinafter also referred to as ‘2003 Rules’) provided for National Population
Register (NPR) based on data collected from all residents of India so that the NRIC is
prepared. The National Government (Office of Census of India, Ministry of Home Affairs);
through a gazette notification of 31.07.2019
7
announced a data collection exercise of NPR
from every citizen of India from April to September 2020 (now in abeyance due to Covid-19
lockdown). The instruction manual for NPR
8
directs collecting data by administrating a set of
14 questions with or without documentary support from all the 1350 million residents across
India. The NPR in fact is the primary step in collecting undefined evidence that supports
qualification to be determined as a citizen or not. (See Rules 2(l), 3 (1-4), 4(1-4) of 2003
Rules). Hitherto. it was the task of the government to identify a non-citizen if any; but since
2003 the onus of proving that one is a citizen of India is assigned on the citizen herself and
that information provided by her also becomes a crucial evidence
9
. The information sought
from citizens in the present exercise is purely private, and mostly not in keeping with the
generic pattern of previous NPR exercises. This overreach into a citizens privacy coupled
with the exclusionary nature of the CAA- 2019, is a cause of major concern.
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Th Citizenship Rules 2003, empowers the functionaries and local registrar to assign ‘doubtful
citizen’ or mark ‘D’ in the NPR to those who fail to provide certain documents or fail to
convince the investigator that she is a citizen. Such a mark will enable exclusion of names
from the final list of NRIC which is meant to be a public document of reference and of high
degree of consequences. Although the Union Home Minister made many statements in the
Parliament that ‘doubtful citizen’ categorization will not be done during the process of
verification and preparing the Local Register of Indian Citizens; many experts, including
legal practitioners
10
have opined that this statement has no value and meaningless since it is
contrary to the statutory provisions. Further, preparation of NRC in the state of Assam which
has already progressed substantially has highlighted as to how a ‘D’ mark in NPR will lead to
exclusion of names in the final NRC list. Consequentially this fear of getting labeled as
‘doubtful citizens’ leading to exclusion from NRIC can only be removed by amending the
Rule-2003, thereby excluding such requirement altogether.
Census and Population Counts in India
India is a uniquely large country in the world that has a long history of successfully
conducting decennial census. The first complete census was conducted during the colonial
era in 1881; thereafter, a detailed federal legislation the Census Act, 1948 (herein after to be
referred to as ‘CA48’) was passed. India’s next census is scheduled to be conducted for the
reference period 1st March 2021. However, the preparations of census begin at least one year
before the final count.
The term ‘census’ has not been defined in the main body of the CA48, but in the introductory
part and ‘statement of objects and reasons’
11
. The CA48 legislation empowers the data
collecting authority and functionaries to make physical visits to every dwelling and
household to ‘stencil’ or mark a household number; and canvas a pre-determined
questionnaire for eliciting data and information. The official website elaborates that -
Population Census is the total process of collecting, compiling, analyzing or otherwise
disseminating demographic, economic and social data pertaining, at a specific time, of all
persons in a country or a well-defined part of a country. As such, the census provides
snapshot of the country's population and housing at a given point of time’
12
.
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The 16th national census is due in March 2021 for which the authorities have set out about 31
questions
13
to be asked to the Indian residents. Indian census is also known to be qualitatively
one of the best in the world which counts all usual residents living in length and breadth of
the nation in millions of villages, towns and many cities. The census of India data is collected
both at the level of the household and through individual listing of all its members and
considered robust for population counts, age and sex structure and also for understanding
levels of education, health and economic status parameters. The Census of Indian operation
which is administered through a ‘Registrar General’ under the Ministry of Home Affairs,
collects, analyzes and utilizes data under the legal provision of Census of India Act of 1948.
The Gazette of India Notification S.O. 119 (E) dated 07.01.2020
14
has declared 01.04.2020 to
30.09.2020 as the period in which the house-listing operations of the Census of India, 2021
are to take place. Note as mentioned earlier, these dates are the same as gazetted on
31.7.2019 for the conduct of NPR under the Citizenship Act 1955 and rules framed
thereunder in 2003.
Are NPR and NRIC Interconnected?
Rule 4 of the Citizenship (Registration of Citizens and Issue of National Identity Cards)
Rules, 2003 provides for using the NPR data to make the NRIC under Rule 4(3). Once NPR
data is collected, the government will not ask the citizens whether to convert that data into
NRIC or not. After taking the NPR data, the government will not do another house to house
enumeration to collect another data for NRC. Note, however, that the NPR data collected is
usable mandatorily for the preparation of NRIC. Hence, the legal interpretation can be that
the NPR itself for all practical purposes is the NRIC operation. The Central Government
has successfully created confusion in propagating that first they will do NPR and then NRC.
This explanation is incorrect. The NRIC is mandated to be finalized only with the NPR, with
inhouse scrutinization as a matter of routine activity.
After NPR data is collected, the process of marking of ‘doubtful’ individuals will start as per
Rule 4(4). No parameters have been stated for when an individual can be marked ‘doubtful’,
thereby wholly opening the entire process to the whims, fancies and arbitrariness of Local
Registrars who can be anyone and of any caliber, not necessarily a person of certain
understanding or of a standard required to determine citizenship of an individual. Once
somebody is marked doubtful, his/her entire life will either go into contesting litigation or
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face a life in detention centers and in some cases be confined to a prison. If the individual is
Muslim, only he/she will have to go through the process of appeal before the Taluk/Sub-
District Registrar and then the District Registrar under Rules 4(5) to 4(7).
15
The deadly potion is concocted when the NPR is used to assign ‘D’ meaning thereby
‘Citizenship is doubtful’ (CR2003, See Rule 4(4)) during the administrative process. There is
no certainty in law and/or in rules as to what documents will determine the citizenship. For
example, many documents in isolation or in combination can prove ones citizenship such as
‘birth certificate’, ‘enlisting of name in voter’s list’, ‘education certificates’ and ‘land
records’ and so on. Given a huge incidence of poverty, illiteracy and remote area living such
as in rural and forest areas, up to 60 per cent of Indian individuals cannot meet the citizenship
test which is so vaguely defined. Further, when one is identified as ‘D’, an individual must go
through detention and complicated legal process to rectify her status to citizen. Though CAA
2019 has certain riders but considering the way government has been functioning coupled
with the fact that by granting citizenship the government will take pleas of sovereign power,
all individuals except the Muslims have an escape route to Citizenship under the CAA-2019.
Since the NPR data definitions, data units and units of data analysis are not yet made public,
it will be pre-mature to reach out to the masses for data collection, the data which may
become useless. Although the NPR was prepared during 2011 to 2015, the issues relating to
its use and utility etc were not debated or discussed with experts, academics and the masses.
Needless to state that the notifications to undertake the exercises of NPR as well as census
had to be put on hold by the authorities in view of the global pandemic Covid-19 and
consequential lockdown.
Can Census House Listing and NPR data collection be done together?
The Ministry of Home Affairs has assigned additional responsibility to the Census Registrar
to undertake the work of preparing ‘National Population Register’ (NPR) which has nothing
to do with census or its related works. NPR is the creation of ‘Citizenship Rules 2003’ to
prepare a ‘National Register of India Citizens’ as contemplated in terms of section 14A
(added in 2003) of the Citizenship Act,1955.
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The administrative mechanism through which the NPR is linked to Census is by assigning an
additional responsibility to the Registrar General of Census. The Registrar General of Census
is also the Registrar General of Births and Deaths (Act 1969), Registrar General for NPR and
Registrar General of Citizen Registration (para 2 (m) of the Citizenship Rules-2003). It is
clear from the review of acts and rules that the ‘house listing’, data along with NPR will be
the primary data base to prepare NRIC.
After reviewing relevant Acts, Rules and Directives, it is found that the agency which is
empowered to prepare NRIC is the Registrar General and Census Commissioner (RGCC)
whose primary responsibility is to conduct census and undertake registrations of births,
deaths and marriages. Whether this agency has all the wherewithal to determine ‘citizenship’
of an individual is questionable. Yet the Citizenship (Registration of Citizens and issue of
National Identity Cards) Rules, 2003 has assigned the responsibility for preparing the NRIC
to the RGCC.
The Census on the other hand is done in exercise of powers conferred by Section 3 and
Section 17A of the Census Act, 1948 read with Rule 6A of the Census Rules, 1990. The
Census Act, 1948 also provides that no information collected during the census would be
used in civil or criminal proceedings nor would the said information be disclosed. Yet, the
government insists that the NPR data will be collected jointly along with the Census
Houselisting operation during April-September 2020; only that a separate questionnaire
consisting of 14 items will be used. This joint data collection operation has become a
contentious issue because information thus collected will be used to create a hitherto
unknown ‘Population Register’ with a sole purpose of preparation of a ‘National Register of
Indian Citizens’. The houselisting and NPR are different issues, empowered from two
different Acts/Rules and with entirely different consequences, therefore it cannot be
conducted jointly and together.
Shariff and Shamshad / ashariff@usindiapolicy.org
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The Challenges:
The historical and world known concept of ‘the Indian Ethos’ which is explained through
social diversity, pluralism, evolved mixed culture, religious tolerance and sense of
inclusiveness has come under stress especially during the last quarter century; more so during
the aggressive election years both at national and state levels. The ‘radical Hindutva politics’
is regularly used to increasingly elevate the pitch to grab the political power leading to
majoritarianism. Partly, this is the result of not only politically motivated discourses but also
through politically maneuvered governance and welfare policies which directs resources to
people of a particular kind ‘us’ at the cost of the so called ‘them’. The current national
government dispensations have several plans to isolate those who do not subscribe to the
Hindutva Nationalism. Many such avenues are now opened through legislation and even
through the interventions of the judicial system and courts of law.
The recent amendments- The Citizenship Amendment Act (CAA) 2019 and preparation
of the National Population Register (NPR) on the sly are just two of the numerous similar
examples. They directly target those who do not subscribe to ‘radical Hindutva’ and religious
minorities, especially Muslims and Christians, and they are certainly not ready to succumb
although their daily lives, living and livelihoods are already irreparably damaged.
The greatest danger to the Indian democracy is emerging from institutions created by the
Constitution and through the statutes of the Indian Parliament. They are working in
coordination with the executive, ignoring the critical rule of law guaranteeing separation of
power. It is appropriate to quote a noted journalist Sidharth Bhatia - The judiciary is no
longer the beacon of hope it was’.
16
Specifically, State supported anti-Muslim rhetoric with a long-term strategy to make, keep
and enhance economic, social and political vulnerabilities to them is already in operation
now. There are many anti-low caste and anti-poor tendencies in formulations and execution
of laws during recent times
17
. CAA-2019 is a tool to create turmoil, confusion and even
violence on the ground. Prominent Lawyer in the Supreme Court of India, Rajiv Dhavan says
The CAA is the perhaps the modern world’s first “refugee legislation” to be subsumed by
hate and discrimination…. the CAA is gratuitous violence to the ideals of the constitution
which binds this great multi-diverse nation together.
18
At this point of time, when
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representation of Muslims in practically all public institutions, parliament and law enforcement
agencies is abysmally low, even the Prime Minister of India, though incorrectly is targeting
Muslims, makes public announcements stating that protestors of CAA-2019 “can be
identified by the clothes they are wearing
19
”.
Although, there are safeguards such as choosing the ‘judicial process’, the procedures are
complicated, slow and almost never ending, often not able to reach resolution in one’s
lifetime. The so-called fast track institutionalization of judicial process fails due to the large
number of cases - often in millions, lack of adequately trained judicial personnel, far too
many referrals and aggravated redtapism.
For example, those who are wrongly excluded from the NRIC listing, must contest before the
Tribunals, constituted, and managed by the executive and not the courts of law. That tribunal
shall be burdened with huge number of litigations and at the same time, such as the Assam-
experience shows, the judges presiding over the Tribunal were found not to be impartial and
were under heavy influence of the political dispensation of the day. A committee of Judges
who inspected the functioning of Assam concluded that, “Tribunals do not function
independently and are not free from executive influence. Tenure and salaries are decided by
the government, keeping the members under the supervision and control of the appointing
authority.
20
Shockingly it is contextual, the Supreme Court of India in a judgment of Sarbananda
Sonowal v. Union of India-2005
21
has placed the burden of proving citizenship on the
individual herself. The apex court has also mandated that normally, the contesting person
was required to give evidence of (i) date of birth (ii) place of birth (iii) parents name (iv)
parents place of birth and citizenship. Sometimes the place of birth of grandparents may also
be relevant (Section 6-A(1)(d) of the Citizenship Act). It is underscored to the readers that the
application of Sonowal judgment with respect to the outcome of NPR process and
verification will adversely affect on the claim of citizenship right.
Another contextual issue is the preparation of NRC in Assam. Local inhabitants of Assam
were agitating for long against many Bengali speaking labourers who were brought into
Assam during the British period and migration during the Bangladesh war of Liberation. The
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tribal Bodo and other ethnic groups fought against the changing demographic composition.
The All Assam Students' Union movement and ensuing negotiations led to a memorandum of
settlement dated 15th August 1985 which is commonly know as ‘Assam Accord’. The terms
of the Accord provided to detect and deport illegal migrants from Assam and it also
contained a clause that “the Government will give due consideration to certain difficulties
expressed by AASU/AAGSP regarding the implementation of the Illegal Migrants
(Determination by Tribunals) Act, 1983”. This amendment of the Citizenship Act clearly
establishes that determination or detection of a foreigner is to be governed by the provisions
of the existing Central legislation viz. the Foreigners Act, 1946 and the Foreigners
(Tribunals) Order, 1964. However, pursuant to rejection of many claims of citizenship, the
government statements through the Ministers in Assam intend to invoke the newly passed
CAA 2019 to grant citizenship only to non-Muslims. This clearly is not the purposes of
CAA-2019 and it has caused national level anguish amongst the Muslims which are not yet
dispelled by the Ministry of Home Affairs of the Prime Minister of India.
National Population Register Data Collection
Reverting back to the discussion on NPR, the immediate attention is needed with regards to
data sharing during the Census of India House listing phase which was fixed from April 1,
2020 until the end of September 2020. The census enumerators will (normally) knock on the
doors of all households to collect data, for house listing and related questions as enumerated
in terms of notification dated 07.01.2020. The home ministry of the GOI had/has also
planned to collect another set of data to prepare a ‘National Population Register (NPR)’
during the census house listing visits while both the data processes are completely different
and under different legal regime with different purposes and consequential effects. The NPR
is the data bank only for the purpose of preparing ‘National Register of Indian Citizens
(NRIC)’ as mentioned in the Citizenship Rules - 2003. There cannot be any other purpose of
NPR.
But given a very troubling experience of the preparation of NRC in one of the provinces of
India i.e. Assam, a cautious approach is warranted by all citizens. The facts relating to Assam
are slightly different. In a way, the entire population was first put in the ‘doubtful’ category
by putting onus on the individual residents of Assam to prove that they possessed listed
documents to become eligible to become part of NRC of Assam. If one failed, subject to the
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outcome of litigation, one becomes stateless person. With whatever difficulty, a draft
National Register of Citizens for Assam is ready. Once the Central Government realized that
those who did not make it to NRC were much more Hindu Bengalis in number than the
Bengali Muslims, they took stand to reject the draft NRC to which the government had earlier
supported and was Supervised by the Supreme Court of India. This way of shifting stand of
the Central Government depending upon the religious angle has become the basis for
governmental policies. Considering the fate of the exercise in Assam, there are acute grounds
to believe that the government will not be fair with the country wide NPR data and the
concept of marking individuals as ‘doubtful’ in terms of the 2003 Rules shall become the tool
for fiddling with the status of individuals who have been citizens of the country since long.
Hence, in a way, the countrywide process can become a serious socially de-establishing
factor to a substantive population of India.
The census of India on the other hand has a long history of its conduct, data focus and data
collection strategy and use, it has remained a fairly transparent ‘data system’ in the world
because of its socio-economic structure of the country. The data concepts, date units, unit of
data analysis and procedures are very well defined and understood by all stake holders such
as the government system, the academia, the international agencies and corporate sector. The
data is collected and protected under law and cannot be used for any other purpose excepting
for use in data aggregation needed in national, regional, state and district level development
planning. In fact, this data has no evidentiary value. Section 15
22
of the Census Act
specifically states that records of census shall not be open for inspection nor shall be
admissible in evidence. In the past, this data has substantially impacted the policy
formulation and more importantly budgetary allocations for different welfare schemes of the
Central as well as the provincial governments.
Over the years the Census data is used for several policy formulations and multiple sectors
such as political, economic, demographic and inter-state planning. For example, the
delimitation commission, utilizes census data for demarcation of constituencies and
allocation of representation to Parliament, State legislative Assemblies and the local bodies.
Census data is liberally used by researchers, demographers, and analysts for understanding
the population growth and trends and make population projections. The corporate sector uses
the age, sex and economic status data to create their own market structure. More recently,
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inter- and intra-state migration streams are being used to finalize state specific employment
policies favoring local applicants. A few nationwide policies which used census data are
allocation of food entitlements to the poor through ‘right to food’, education entitlements
through ‘SarvaSheekshaAbhayan’ and employment entitlements through the Mahatma
Gandhi National Rural Employment Guarantee Schemes.
Whereas, NPR exercise is one which will seriously affect the body polity; the outcome will
certainly redefine the natural relation of the inhabitants of the country since long who have
already been citizens of Indian Nation. This relationship with the nation defines the very
existence of a human being with the geography and environment. Citizenship of an individual
is a status relatable with the territory of the Nation State and in most cases recognized or
conferred through sovereign powers. In all constitutional democracies, citizenship status
determines availability of many precious rights of that person against the state and other
citizens of the country. This status makes that individual part of the Nation State and only on
that basis is an individual entitled to enforce her various rights recognized in that system and
can claim benefits from entitlement created by the State to life and living for meaningful
existence. In case of the person being noncitizen in a system, she is a stateless person with
limited right flowing from the customary natural rights. Yet, she will find an exclusionary
path within the modern democratic, bureaucratic and legal system; be it political rights or
social and economic security. The absence of citizenship status of a person, therefore,
perpetuates inequality. The present NPR process in India has potential to put millions of
citizens in a ‘doubtful citizen’ category due to lack of contemporary documentary evidences
explained in the other part of this paper.
It is instructive to find that all the previous censuses have collected information on place of
birth of all the residents of India. For example, below is the data extracted from Census of
India 2011 for all those who reported that they were born out of India. Note that overall just
about 5.36 million residents reported that they were born in a country out of India such as
Pakistan, Bangladesh, Nepal and many more. Since the census data collection was a routine
and harmless activity, all these years this data on ‘born outside India’ will contain all those
who are legally residing in India as well those who may have residents without proper
documentary evidence. USA is a country which is infested with the issues relating to
undocumented residents but with comprehensive data base on them; similarly even in India
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the ‘born out of India’ reporting during the census is likely to be accurate and closer to
complete. Only a certain fraction of 5.36 million residents are likely to be illegal who need to
be identified for administrative purposes and possible deportation.
Bangladesh with 2.8 million residents reporting their country of birth which is just about one
half of all ‘out of India born’ residents; followed by just 0.92 million from Pakistan and 0.81
million from Nepal. While Nepal has ‘open entry and exit’ policy with India for its citizens,
the issues relate only to countries such as Bangladesh, Pakistan, and Sri Lanka and so on.
These data points to a fact that the issue of illegal migration in India is rather small given a
large domestic population of over 1.4 billion. A nationwide exercise to assign citizenship to
all those who have been living in India for many decades after the Independence is an
unnecessary and expensive public policy.
Census of India 2011 DATA on BORN OUT OF INDIA by State and Country of Birth
No. % No. % No. % No. % No. % No. % No. %
India 1,210,854,977 1,205,201,066 99.53 5,363,099 0.44 918,982 0.08 2,747,062 0.23 6,476 0.001 810,158 0.067 198,193 0.016
Assam 31,205,576 31,086,841 99.620 117,329 0.376 5,004 0.016 88,192 0.283 136 0.000 11,501 0.037 3 0.000
Bihar 104,099,452 103,789,462 99.702 305,327 0.293 2,820 0.003 6,190 0.006 80 0.000 254,249 0.244 4 0.000
Jharkhand 32,988,134 32,969,120 99.942 17,653 0.054 1,726 0.005 4,756 0.014 33 0.000 4,360 0.013 5 0.000
UP 199,812,341 199,511,129 99.849 261,271 0.131 50,021 0.025 23,511 0.012 37 0.000 124,085 0.062 59 0.000
Uttarakhand 10,086,292 10,002,535 99.170 82,871 0.822 16,109 0.160 13,691 0.136 36 0.000 46,073 0.457 18 0.000
MP 72,626,809 72,556,008 99.903 67,501 0.093 33,460 0.046 10,663 0.015 23 0.000 9,400 0.013 46 0.000
Rajasthan 68,548,437 68,368,373 99.737 116,012 0.169 81,631 0.119 2,486 0.004 45 0.000 8,504 0.012 42 0.000
Gujarat 60,439,692 60,284,311 99.743 88,302 0.146 41,601 0.069 730 0.001 28 0.000 23,454 0.039 112 0.000
Jammu & Kashmir
12,541,302 12,506,463 99.722 34,353 0.274 22,936 0.183 309 0.002 5 0.000 2,253 0.018 0 0.000
Himachal Pradesh
6,864,602 6,793,223 98.960 64,028 0.933 4,070 0.059 65 0.001 29 0.000 56,336 0.821 1 0.000
Punjab 27,743,338 27,421,360 98.839 320,751 1.156 264,711 0.954 589 0.002 102 0.000 30,227 0.109 72 0.000
Haryana 25,351,462 25,150,533 99.207 200,287 0.790 158,844 0.627 872 0.003 800 0.003 26,182 0.103 34 0.000
Delhi 16,787,941 16,583,290 98.781 189,256 1.127 136,268 0.812 3,396 0.020 4,491 0.027 33,288 0.198 135 0.001
West Bengal 91,276,115 88,969,897 97.473 2,297,578 2.517 8,068 0.009 2,222,091 2.434 166 0.000 31,162 0.034 58 0.000
Odisha 41,974,218 41,909,649 99.846 59,734 0.142 1,385 0.003 38,879 0.093 10 0.000 3,226 0.008 26 0.000
Chhattisgarh 25,545,198 25,496,055 99.808 46,912 0.184 9,532 0.037 27,222 0.107 16 0.000 2,180 0.009 13 0.000
Karnataka 61,095,297 61,016,844 99.872 71,715 0.117 2,082 0.003 4,271 0.007 76 0.000 14,837 0.024 4,312 0.007
Kerala 33,406,061 33,338,082 99.797 66,722 0.200 328 0.001 105 0.000 31 0.000 2,807 0.008 5,093 0.015
Andhra Pradesh 84,580,777 84,509,740 99.916 66,413 0.079 1,632 0.002 4,288 0.005 43 0.000 7,478 0.009 2,514 0.003
Tamil Nadu 72,147,030 71,869,219 99.615 276,673 0.383 1,349 0.002 317 0.000 2 0.000 8,156 0.011 184,505 0.256
Maharashtra 112,374,333 112,098,923 99.755 229,089 0.204 62,042 0.055 17,269 0.015 231 0.000 56,560 0.050 509 0.000
Goa 1,458,545 1,443,492 98.968 12,454 0.854 396 0.027 48 0.003 13 0.001 2,172 0.149 22 0.002
North East States
Arunachal Pradesh
1,383,727 1,367,944 98.859 15,567 1.125 154 0.011 5,441 0.393 0 0.000 8,256 0.597 0 0.000
Nagaland 1,978,502 1,971,300 99.636 7,108 0.359 27 0.001 222 0.011 1 0.000 5,991 0.303 0 0.000
Manipur 2,855,794 2,853,595 99.923 2,158 0.076 11 0.000 530 0.019 0 0.000 681 0.024 0 0.000
Mizoram 1,097,206 1,080,561 98.483 16,608 1.514 16 0.001 1,009 0.092 0 0.000 1,342 0.122 0 0.000
Meghalaya 2,966,889 2,958,022 99.701 8,748 0.295 151 0.005 3,556 0.120 2 0.000 4,223 0.142 1 0.000
Tripura 3,673,917 3,413,814 92.920 259,994 7.077 572 0.016 256,559 6.983 1 0.000 187 0.005 0 0.000
Sikkim 610,577 588,819 96.436 21,487 3.519 5 0.001 31 0.005 0 0.000 19,285 3.158 0 0.000
Sub Total 14,566,612 14,234,055 97.717 331,670 2.277 936 0.006 267,348 1.835 4 0.000 39,965 0.274 1 0.000
Union Teritories
Andaman & Nicobar Islands
380,581 369,635 97.124 10,919 2.869 68 0.018 9,651 2.536 0 0.000 429 0.113 258 0.068
Chandigarh 1,055,450 1,033,877 97.956 21,267 2.015 11,611 1.100 65 0.006 39 0.004 7,763 0.736 2 0.000
Dadar & Nagar Haveli
343,709 339,217 98.693 1,591 0.463 15 0.004 1 0.000 0 0.000 1,515 0.441 0 0.000
Daman &Diu 243,247 241,097 99.116 1,719 0.707 17 0.007 7 0.003 0 0.000 1,571 0.646 0 0.000
Lakshadweep 64,473 64,425 99.926 46 0.071 15 0.023 0 0.000 0 0.000 1 0.002 11 0.017
Puducherry 1,247,953 1,244,211 99.700 3,656 0.293 305 0.024 50 0.004 0 0.000 424 0.034 338 0.027
Sub Total 3,335,413 3,292,462 98.712 39,198 1.175 12,031 0.361 9,774 0.293 39 0.001 11,703 0.351 609 0.018
Nepal
Pakistan
Place
Total
Population
Born within India
Born Outside
Afganistan
Bangladesh
Source: Census of India 2011 -
Shariff and Shamshad / ashariff@usindiapolicy.org
15
Shariff and Shamshad / ashariff@usindiapolicy.org
16
What can be done?
It is proposed to identify about two hundred sensitive districts, out of the present 739
23
across
India and select at least two paid (honorarium) advocates from each district. Such selected
advocates can be trained at the state capital. Many legal luminaries and academics with
specialization in law are willing to provide nationwide training. Such legal networks already
exist in many local areas in many States, but they need to be trained and well linked with a
national grid. The locally trained advocates then can cater to all cases of ‘human rights abuse’
as well as issues relating to citizenship and CAA. In this process of legal exercise, an affidavit of
the individual can be proposed which the government accepts as sufficient proof in case somebody is
considered as 'Doubtful'. This clarity can come only in terms of Amendment in 2003 Rules.
Rules of 2003, as per Rule 3(5), Local Register shall contain the names only after verification
is made from the Population Register. After verification process of the data of NPR as per
Rule 4(3), based on ‘subjective dissatisfaction’ in terms of Rule 4(4) any individual shall be
declared a ‘doubtful’ person and that would lead to adjudication of facts. The facts shall be
ascertained based on a specific and simple set of parameters, in keeping with the
Constitutional tradition of citizenship being based on Birth or Residence. The other option
can be to omit Rules 3(5), 4(3) with suitable modification in Rule 4(4) in relation to declaring
a person ‘doubtful’.
In the data collection the process of NPR, many documents and their details are referred to
and have been made as desirable to submit the details of the following documents, if
available:
a. Aadhar number
b. Election Photo Identity Card or Voter ID Card Number/Card
c. Indian Passport Number
d. Driving License Number
e. Details of Birth of the person and their parents
Although submission of the details of the above documents is voluntary and not mandatory in
effect, this will not be the case. However, even in case a citizen of India has all the above
documents and submits all of them, his inclusion in the NRIC is a matter of subjective
satisfaction of the officer examining the data of NRP.
Shariff and Shamshad / ashariff@usindiapolicy.org
17
Hence, it is suggested that a list of credible documents, may be 10 to 20, be notified with the
‘doubtful’ in terms of 2003 Rules and shall straightway take him/her to the NRIC. This will
substantially reduce the uncertainty in the minds of a large number of population and shall
reduce the conflict.
It is puzzling, that under the Indian legal system even a passport issued under the Passport
Act 1967 is not a guaranteed document to establish citizenship as a matter of right. Yet,
passports issued by the government of India under normal circumstances are issued only to
citizens of India - as observed by the Delhi High Court
24
in 1967 that ‘As popularly
understood, however, a passport, when issued to a citizen who goes out of his country to a
foreign land, is a political document by which the bearer is recognized in foreign countries as
a citizen of the country which issued the passport.’
Similarly, even if a person had unchallenged right to vote in electoral process and has been
participating in it, even this status does not ensure her name to be included in NRIC without
satisfaction of the officer concerned. There is no guideline why somebody’s electoral I-card
or passport should be treated as good document for inclusion in NRIC and on the other hand
some other person’s or class of person’s passport and voter I- Card will not carry the same
legal evidence to ensure their entry into NRIC.
Citizenship Rules-2003 gave that scope where a passport or voter I-card of one person may
be considered as good evidence (without taking it on record) for taking an individual’s name
in NRIC but the document, despite taking them on record may still not guarantee another
person’s undoubted citizenship status and she is put under the ‘doubtful’ category.
Shariff and Shamshad / ashariff@usindiapolicy.org
18
Conclusions
The issue of National ID cards or a Register of Citizens, is one that has been tried and then
ultimately scrapped by developed countries such as the UK, for reasons of cost and privacy.
The interest of the State in ensuring services to those who need it most and the interest of the
individual, whose privacy and citizenship is paramount requires a very delicate balancing act.
The threat of loss of Citizenship is sought to be used to erode the privacy of individuals.
Further, this threat puts at risk, a sizeable religious minority in the Country.
The way forward can only be a simple, concrete, and unambiguous set of parameters that will
let a bonafide citizen, marked doubtful under the 2003 Rules, to challenge and set right the
improper declaration as doubtful. The sheer complexity of the diverse demography of India
requires that minimum facts ought to be needed to be proved. The more that will have to be
established will lead to more fear and confusion amongst ‘doubtful’ individuals and their
families and resultantly among the minority communities. It will also result in arbitrariness
and bias on the part of adjudicating authorities and will result in obvious miscarriages of
justice that will clog up the judicial system for years to come, all the while burdening the
national exchequer with the cost of maintaining the infrastructure of detention centers and
tribunals and their staff. Thus, in conclusion the following steps need to be undertaken to de-
escalate the situation and ensure the satisfaction of all stakeholders.
If the 2003 Rules are not omitted or declared ultra vires by the Supreme Court of India, in
that situation the government need to:
1. Ensure the modification of the 2003 Rules to include a simple procedure through which
one must disprove doubtful entry, by providing appropriate documents. The current
provision to consider oral adverse community testimony to dislodge the citizenship must
be abolished.
To put it differently, the adversarial provisions in the 2003 Rules with respect to the
process of NPR/NRIC should not be allowed to remain on the statute book and the same
be replaced by community based supportive provisions in the process of undertaking this
mammoth exercise.
Shariff and Shamshad / ashariff@usindiapolicy.org
19
2. Establish a nationwide grid of legal practitioners, attorneys and para legal mechanism to
assist and represent individuals marked as doubtful; supported by a robust website and
social connect.
3. Set up civilian oversight Committees for the Detention Centers to ensure provisioning of
basic amenities and non-violation of human rights.
In the absence of the above safeguards, the NPR/NRIC exercise based on the 2003 Rules will
lead to unsurmountable incongruity accentuating the already tense and exclusionary
tendencies to alter the social fabric of contemporary India. Furthermore, these shortsighted
but intentional legal provisions are amenable to corruption, arbitrariness, and discriminatory
actions by the mighty and prejudiced bureaucracy, administration, and social institutions. One
can clearly foresee fraud on the constitutional protection of massive civilians subjecting them
to inefficient, slow and expensive legal process, which is already under stress. It is our view
that without immediate positive, objective and well researched interventions, India is bound
to create one of the largest and severest human tragedies the civilized world has ever seen in
living memory.
**
1
This research is undertaken at the instance of the US-India Policy Institute, Washington D. C and executed by the Centre for
Research and Debates in Development Policy, New Delhi. The opinions expressed in this paper are those of the authors and
not of the above institutions.
2
Application filed by UN High Commissioner for Human Rights in Supreme Court of India in WP(C) 1474/2019
3 Refer pp345-431, Constituent Assembly Debates, Book No. 4, Vol. No. IX published by the Indian Parliament (Lok Sabha)
during 30 July 1949 to 18 September 1949. There are many reprints of these publications.
4Articles 5 to 11; Constitution of India,1950
5
[2. .. (b) “Illegal migrant” means a foreigner who has entered into India (i) without a valid passport or other travel
documents and such other document or authority as may be prescribed by or under any law in that behalf; or(ii) with a valid
passport or other travel documents and such other document or authority as may be prescribed by or under any law in that
behalf but remains therein beyond the permitted period of time: Provided that any person belonging to Hindu, Sikh,
Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh or Pakistan, who entered into India on or before
the 31st day of December, 2014 and who has been exempted by the Central Government by or under clause (c) of sub-
section (2) of Section 3 of the Passport (Entry into India) Act, 1920 (34 of 1920) or from the application of the provisions of
the Foreigners Act, 1946 (31 of 1946) or any rule or order made thereunder, shall not be treated as illegal migrant for the
purposes of this Act;]
6
https://censusindia.gov.in/2011-Act&Rules/notifications/citizenship_rules2003.pdf
7
http://censusindia.gov.in/2011-Act&Rules/notifications/NPRGazatteNotification.pdf
8
http://censusindia.gov.in/2011-Documents/NPR%20English.pdf
9
See: Sarbananda Sonowal v. Union of India (2005), 5 SCC 665 Decided on 12.07.2005.
https://mumbaimirror.indiatimes.com/opinion/city-columns/why-india-is-not-capable-of-carrying-out-
npr/articleshow/74182553.cms
Shariff and Shamshad / ashariff@usindiapolicy.org
20
10
Kapil Sibal, Senior Lawyer in the Supreme Court and former Law Minister of India: See
https://indianexpress.com/article/opinion/columns/amit-shah-parliament-on-citizenship-act-npr-caa-nrc-6317557/
https://theprint.in/talk-point/on-npr-should-states-trust-home-minister-amit-shahs-repeated-assurances/380571/
https://www.telegraphindia.com/india/call-to-amend-npr-doubtful-citizen-rule/cid/1753820
11
About the CA48, it has been stated that ‘the legislation alone can confer the power to put questions, mark
buildings, etc., for the purpose of census’ and the Ministry of Home shall be deal with vital stistics and census.
12
https://censusindia.gov.in/Census_And_You/about_census.aspx
13
See the Central Government’s notification Number [F.No. 9/7/2019-CD(CEN)/3] dated 07.01.2020.
14
http://censusindia.gov.in/2011-Act&Rules/notifications/Final%20Notification.pdf
15
See M R Shamshad: http://radianceweekly.in/portal/issue/for-whom-the-bell-tolls/article/npr-for-all-practical-
purposes-is-the-nrc/
16
Independent institutions, including the judiciary, have shown an alarming tendency to bend towards the government’s
point of view. There must be many judges and magistrates who continue to do be independent minded, concerned only with
the principles of law and justice and unmindful of the political exigencies, but on issues that really count, judgements seem
to have gone the way this ruling dispensation would like them to. The judiciary is no longer the beacon of hope it was.
https://thewire.in/rights/young-india-students-caa-protests
17
The most recent being - https://timesofindia.indiatimes.com/india/sc-states-not-bound-to-give-quotas-in-jobs-
promotions/articleshow/74036846.cms
18
https://thewire.in/law/india-needs-a-proper-refugee-law-not-a-caa-suffused-with-discriminatory-intent
19
https://economictimes.indiatimes.com/news/politics-and-nation/those-indulging-in-arson-can-be-identified-by-their-
clothes-narendra-modi-on-anti-caa-protest/articleshow/72687256.cms?from=mdr
20
https://caravanmagazine.in/law/assam-foreigners-tribunals-function-like-kangaroo-courts-persecute-minorities
21
Sarbananda Sonowal v. Union of India (2005), 5 SCC 665 Decided on 12.07.2005.
22
Section 15- No person shall have a right to inspect any book, register or record made by a census-officer in the discharge
of his duty as such, or any schedule delivered under section 10, and notwithstanding anything to the contrary in the Indian
Evidence Act, 1872, no entry in any such book, register, record or schedule shall be admissible as evidence in any civil
proceeding whatsoever or in any criminal proceeding other than a prosecution under this Act or any other law for any act or
omission which constitutes an offence under this Act.
23
https://wiki.openstreetmap.org/wiki/Districts_in_India
24
In Rabinder Nath Malik v. Regional Passport Officer, New Delhi, 1966 SCC Online Del 41 : (1967) 3 DLT 179 : AIR
1967 Del 1 at page 192
ResearchGate has not been able to resolve any citations for this publication.
Senior Lawyer in the Supreme Court and former Law Minister of India
  • Kapil Sibal
Kapil Sibal, Senior Lawyer in the Supreme Court and former Law Minister of India: See https://indianexpress.com/article/opinion/columns/amit-shah-parliament-on-citizenship-act-npr-caa-nrc-6317557/