Millennium Post

Raising questions

Exploring the constitutional validity of the NPR, its doubtful origins in the Citizenship Act of 1955 and its problematic role in the NRC exercise

For the past few months, the nation has witnessed protests across the country against the implementation of CAA-NRC-NPR by the Central Government. The enactment of CAA is due to the backdrop of the NRC exercise conducted in Assam, which declared 12 lakh Hindus as illegal migrants out of a total of 19 lakh who were marked out by the exercise. Although it is contented by the government that minorities in Pakistan, Afghanistan, and Bangladesh who are victims of religious persecution will be provided Indian Citizenship if they came to India on or before December 31, 2014, but the word religious persecution finds no place in the Amended Act, therefore CAA is the route which would provide Indian citizenship to the Hindus, Jains, Sikhs, Buddhists and Christians, if they are declared illegal migrant under the nationwide NRC exercise.

Towards the implementation of CAA-NRC-NPR, we have to understand the chronology. Firstly, NPR exercise will be held, then those marked as doubtful citizens under NPR exercise would find no place in the NRC list with the data collected under NPR being utilised in the preparation of NRC. The person not finding any place in the NRC will now have to prove their citizenship by showing their documents and will be provided two chances to prove their citizenship i.e., firstly before a local government officer and secondly, if the person is not satisfied with the decision of the government officer, then he/she will be provided another chance to prove their citizenship in a foreigner tribunal. If the person is unable to prove their citizenship in the tribunal, then they will be declared an illegal migrant.

In this article, I hope to discuss the legal validity of the NPR exercise i.e., how the whole NPR exercise is against the Citizenship Act as well as how it is violating the principle of administrative law.

From April 1, 2020, the government is conducting the NPR exercise all across the country. The basic objective of NPR exercise is to prepare the population register of the country, which includes the total number of people living in India. It includes citizens, non-citizens as well as illegal migrants if they are living for the past six months in India. It is worthwhile to mention that under sub-section (1) and (3) of Section 18 of the Citizenship Act, 1955, the government has created the rules, namely the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003. The rules came into force from December 10, 2003, but Section 14A of the Act which talks about the Issue of National identity cards, under which the rules were framed, was inserted by then NDA government and came into force from December 4, 2004. This means that the Act under which rules were framed came later and the rules were framed earlier.

The word National Population Register is not mentioned anywhere in the parent Act, the Citizenship Act, 1955, furthermore, it is significant to mention that NPR is not the part of the legislative policy of Section 14A of the Act. Furthermore, it also doesn't provide any mechanism of conducting NPR exercise i.e., what kind of details would be asked from the people, whether it is mandatory to provide the details or not, whether the details provided are secured, etc. Section 14A of the Citizenship Act only talks about the creation of the National Register of Indian Citizens (NRIC) and issuance of national identity cards to the citizens. Hence NPR exercise is ultra-vires to the Citizenship Act, 1955.

The whole NPR exercise is based on excessive delegation of power by the government to the local citizen registrar or district citizen registrar. Delegated legislation means entrusting the legislative power upon an agent who is subordinate to the legislature. The term excessive delegation denotes powers and functions being further delegated to the local level government officials, which is also known as sub-delegation (sub-delegation is not allowed in India). Although in the Constitution of India there is no special mention of the word 'delegation', in In Re Delhi Laws case as well as in Hamdard Dawakhana case, the Supreme Court has settled the issue that essential legislative function can't be delegated to another authority, as it is the prerogative of the Parliament. In simpler terms, it means that the Parliament can't delegate the power to the executive to frame rules for an act, as framing rules under the act, is the essential legislative function of the Parliament.

The major drawback of the delegation of powers and functions is that the flow of authority also flows the discretionary power to the subordinate officer. It is readily accepted that for its day-to-day function and to function effectively, the government delegates its powers to local government officials to execute the tasks in a proficient manner. But how much power is to be delegated and what powers are to be delegated is to be dealt with great caution and the discretion provided to the low-level administrative officers should not be unfettered, unguided and absolute. In this case, vesting powers in the hand of the low-level administrative officer, to decide who should be a citizen or who should be marked as doubtful citizens would be a subjective discretion of that officer and would lead to an arbitrariness which is not a good sign in the democratic country like India.

Finally, unlike Section 8(2) of the Census Act, 1948 where the data collected is protected and recorded in the coded version and the citizen is not forced to provide the names of its family member, in NPR, the head of the family is obliged to provide every detail of the members of its family with proof and would be liable to a fine if the information isn't provided. Seeking private details of the individuals is against Right to Privacy as held in Puttaswamy Judgment and is violative of a fundamental right if the fundamental right to privacy needs to be curtailed it should be devised in a manner which has sufficient legislative backing to collect private information from the individual.

Views expressed are strictly personal

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