Advocate Mihir Desai’s point by point rebuttal of the GOI’s FAQ on CAA/ NPR-NRC Why the GOI FAQs hide more than they reveal
25, Dec 2019 | Mihir Desai
FAQ BY THE CENTRAL GOVERNMENT ON CAA
A Point by Point Rebuttal
The FAQ released by the Central Government on CAA/ NRC is highly misguiding and at times gives totally false information. It hides more than it reveals. At the end of the answer issued by the Government to each FAQ my comments are added.
Eight of the most important frequently asked questions are not even raised as questions in this FAQ.
Below are the eight questions which need to be raised and are missing from the FAQ of the government.
Why only persecuted religious groups from three countries namely Pakistan, Afghanistan and Bangladesh are included in the list. Why are persecuted religious minorities in other neighboring countries like Sri Lanka (Tamils of all religions), Myanmar (Rohingyas) and China (especially Tibetan Buddhists and Uighers) not included. The answer cannot be partition since Afghanistan had nothing to do with India’s partition. While persecution of the communities mentioned in CAA cannot be denied, it is important to understand why only certain communities from certain countries have been included.
Even while seeking to protect persecuted religious minorities in Afghanistan, Pakistan and Bangla Desh, why have the other persecuted religious minorities in these very countries such as Balochs, Ahmediyas and Shias not given similar protection. There is enough evidence about their persecution. Just to give an example in 1974 Ahmadiyyas have been declared as non muslim minorities in Pakistan and law promulgated in 1984 made it a criminal offence for Ahmadis to refer to themselves as Muslim, to refer to their religion as Islam, or to publicly practice Islam, though the Ahmadis consider themselves as Muslims. There have been persistent physical attacks and killings on Ahmadis in Pakistan. They are obviously a religiously persecuted group. Just to give another example, tens of thousands of Chakma tribals from Bangladesh migrated due to persecution and other reasons to North Eastern states during last many decades. Many of them have been given citizenship but many have not been and are demanding citizenship. Overwhelming majority of them follow Buddhism so will be covered by CAA. But there is also a section of Chakmas who follow Islam. Are you therefore going to give citizenship to non muslim Chakmas and not give citizenship to Muslim Chakmas, though otherwise they are identically placed.
Under the Refugee Convention of 1951 and Protocol of 1967, refugee status should be granted to persons who are persecuted due to race, religion, nationality, membership of a particular social group or political opinion. While India is not a party to either, still, if persecution was the criteria for offering citizenship to refugees why are only those who are seen to be persecuted as non-muslim religious groups been offered these benefits and not those persecuted for other reasons? For instance, on December 19, 2019 Junaid Hafeez, a Pakistani academician was given a death sentence for blasphemy. Obviously this is persecution for freedom of speech. A large number of persons are in this way and otherwise politically persecuted in neighbouring countries. Why are those persecuted on grounds other than religion not being offered Indian citizenship if India wants to help the persecuted?
Linked to the above, why is citizenship being offered to some people on the basis of their religion. This is clearly contrary to secularism which is not just part of the preamble of the Constitution but has been held to be part of the basic structure of the Constitution by the Supreme Court. The Constitution of India is the first document determining and confering citizenship. This obviously was soon after partition and all its wounds. Despite this and though it allowed migrants from Pakistan (both East and West) to acquire citizenship of India it never made a religious distinction between these migrants. Citizenship Act, which is the primary Act dealing with citizenship does not make any distinction (till CAA came in) on religious grounds. Assam accord which set out the cut off date of March 25, 1971 for entry into Assam for determining citizenship does not make any religious distinction. The Immigrants (Expulsion from Assam) Act, 1950 does not make any distinction on grounds of religion. There was therefore no justification for bringing in the religious angle now. If at all persecuted persons from neighbouring countries were to be protected then all persecuted persons should have been offered this protection.
Why is citizenship being offered under CAA to only those who have entered India before 31.12.2014? Is it the case that persecution has stopped after 31.12.2014 in these countries.
What is going to be the financial cost and human cost of NRC and can India at all afford it.
In Assam, nearly 100* people have lost their lives and their deaths are connected to citizenship related issues. While some have allegedly committed suicide due to frustration, anxiety and helplessness related to the National Register of Citizens (NRC), some allegedly took their own lives fearing incarceration in detention camps. There are also some people who died under rather mysterious circumstances in detention camps.
The cost of the Assam NRC was Rs 1,600 crore, and 50,000 officials were deployed to enrol 3.3 crore applicants. We now know that it ended up excluding 1.9 million people, mostly genuine citizens of all religious affiliations. If we take this as the basis of a back-of-the-envelope calculation, counting only the Indian electorate of 879 million voters, an all-India NRC would entail an expenditure of Rs 4.26 lakh crore, and would require 1.33 crore officials to conduct it.
In addition construction of detention centres and after detaining people, even if the conditions are miserable feeding them for a long time if not for rest of their lives. The capacity of Indian prisons in aggregate is 3.5 lakhs persons. So just to accommodate the Assamese detainees you would have to build six times the number of jails/ detention centres as those existing in entire India.
This is apart from the huge financial costs to the people. If Assam is anything to go by large number of people have been even forced to sell off their lands and have been driven to financial misery just to pay lawyers for defending their cases in Foreigners Tribunals and High Court.
*CJP’s death count for Assam shows 28 deaths in detention camps and the rest in homes through suicide, heart attack ior trauma.
Is the NRC at all required? NRC is a register of citizens of the country. Under the Constitution of India Article 326 and under the Representation of Peoples Act, 1950 voting rights are available only to citizens. So all those who are on the voting list should obviously be treated as citizens. Aggregate the voting lists across India and you would automatically have the entire citizenship register for all those above 18 years. So why replicate this exercise? Those below 18 are too young to have crawled into India from some other country on their own. So if their parents are in the voting list children automatically (barring a few exceptions) become citizens. Then what is the (real) purpose of every one again required to prove that they are citizens. Unless the idea is to weed out a large number of poor persons of all communities (with special emphasis on Dalits, Tribals, Women and Transgender persons) and a large section of Muslims from citizenship rights. Even without the NRC the Government has the power of weeding out illegal immigrants under the Foreigners Act, 1946. Regularly prosecutions are launched, for decades, for “removing” those who are seen as foreigners. The entire NRC exercise seems nothing but an exercise in fear mongering and creating a vast mass of people who will not be voters ,to whom welfare schemes will not be available and would be probably treated as slave labour in various “detention camps” or even if set free would be a mass of people without any rights whatsoever available to the corporates and their cronies as labourers at an extremely cheap rate.
If the Prime Minister is saying that there is no plan to start the NRC process why is the exercise of Population Register (NPR) being carried out. On July 31, 2019 a Notification was issued by the Central Government that NPR exercise will be carried out across the country between April 1, 2020 and September 30, 2020. Confusion is sought to be created between census and population register. But the population register is part of Rule 4 of the NRC Rules and census is under Census Act- a completely independent Act having a totally different purpose. So when population register is being prepared it is the first step towards NRC. There is no other purpose of “population register” except to further an all India NRC.
Now let us look at the FAQ of the Government.
Q.1 Is NRC a part of the CAA?
Ans. No. CAA is a separate law and NRC is a separate process. The CAA has come into force nationwide after its passage from Parliament, while the NRC rules and procedures for the country are yet to be decided. The NRC process that is going on in Assam has been implemented by the Honourable Supreme Court and mandated by the Assam Accord.
This is only partially true. Citizenship Amendment Act, 2019 (CAA) is an amendment to the Citizenship Act. NRC process is under the Citizenship Registration of Citizens and Issue of National Identity Cards) Rules, 2003. The NRC Rules are already notified in 2003. The Rules are under the Citizenship Act. The nature of documents required under both i.e. CAA and NRC are yet to be notified. CAA requires a person from Hindu, Christian, Buddhist, Parsi, Jain and Sikh community to show that they have entered India from Pakistan, Bangladesh or Pakistan prior to 31.12.2014. However what is the evidence required to prove this has not been prescribed. Similarly the nature of documents required to prove citizenship under NRC is also not yet provided. CAA can exist without NRC, in the sense that those migrants covered by CAA can ask for citizenship without their being any NRC process but now NRC cannot be done without CAA. This is because CAA has become the law (unless struck down by the Supreme Court) and while determining citizenship under NRC, CAA will have to be taken into account to decide whether a person is a citizen or not.
Q.2 Do Indian Muslims need to worry about CAA+NRC?
Ans. There is no need for an Indian citizen of any religion to worry about CAA or NRC.
This is totally misguiding. It is the NRC process which will decide whether you are an Indian citizen. So even if you think you are an Indian citizen having a passport, voting card, ration card, aadhar card, PAN card etc. in the NRC process you may still be excluded. This would be true across religions. This is precisely what has happened in Assam where persons who thought they were Indian citizens having all the cards above were still excluded as they were held not to fulfill the freshly laid down criteria for proving citizenship. Once you are declared as a citizen you do not have to worry but nobody knows whether he or she will be declared as a citizen under NRC. Even a simple mismatch in the name spellings in different documents (either their own name or parents name) have rendered people stateless in Assam NRC.
Q.3 Will NRC be for people of a particular religion?
Ans. No. NRC has nothing to do with any religion at all. NRC is for every citizen of India. It is a citizen register, in which names of every will be recorded.
In reality it is likely to exclude a large number people from marginalized sections who cannot establish their citizenship due to lack of adequate documents. The issue is whether NRC is at all necessary,
Q.4 Will people be excluded in NRC on religious grounds?
Ans. No, NRC is not about any religion at all. Whenever NRC will be implemented, it will neither be applied on the basis of religion nor can it be implemented on the basis of religion. No one can be excluded just on the basis that he/she follows a particular religion.
This is untrue. Let us take an example. I am a poor Muslim. I am from India. My ancestors are from India. But I do not have any proof of birth. I will be excluded and will be treated as an illegal migrant, CAA further filters me out
I am a poor Hindu. I am from India. My ancestors are from India. I do not have any proof of birth. Under CAA, I claim I have come from Pakistan. Due to persecution all my documentation was lost in Pakistan. I will be granted Indian citizenship.
Or take another example. I am an Ahmadiya Muslim who due to persecution has crossed over from Pakistan. But due to CAA I will be treated as illegal immigrant and sent to detention camp.
I am a Hindu. I have crossed over from Pakistan due to persecution. I will be offered citizenship.
Q.5 By conducting NRC, will we be asked to present proofs of us being Indian?
Ans. First of all, it is important to know that at the national level, no announcement has been made to begin NRC process. If it is implemented, it does not mean that anyone will be asked for proof of being Indian. NRC is merely a normal process to register your name in the Citizens’ Register. Just like we present our identity cards or any other document for registering our names in the voter list or getting Aadhaar Card made, similar documents shall need to be provided for NRC, as and when it is carried out.
False. On July 31, 2019 a Gazette Notification was issued saying National Population Registration will be done across India between April 1, 2020 to September 30, 2020. This is different from census which is done under Census Act. NPR is done under Section 4 of the NRC Rules. So it is very much part of the NRC process. What documents will be required to be submitted is not yet clear so it is false to say that similar documents as required for voters card or adhar card are required.
Also there are reports that pilot studies for NPR have already been conducted in three Districts of Tamil Nadu in August, 2019.
Q.6 How is citizenship decided? Will it be in the hands of the government?
Ans. Citizenship of any person is decided on the basis of The Citizenship Rules, 2009. These rules are based on the Citizenship Act, 1955. This rule is publicly in front of everyone. These are five ways for any person to become a citizen of India:
I. Citizenship by Birth,
II. Citizenship by descent,
III. Citizenship by registration,
IV. Citizenship by naturalization,
V. Citizenship by incorporation.
That is stating the obvious. But ultimately the Government will lay down which are acceptable documents and which are not. The Government officials will determine whether a particular document is legitimate or not. Foreigners Tribunals will adjudicate about veracity of documents and whether a person is foreigner or not. The experience of Foreigners Tribunals in Assam shows that totally inexperienced persons are appointed as judges and they are given targets about the number of foreigners to be declared. If these targets are not met there are serious allegations that they are removed from service. Tens of thousands of Foreigners Tribunals will have to be set up across the country. Existing judicial vacancies are not being filled up. How will you find personnel and money for these appointments.
Q.7 Will I have to provide details of the birth of parents etc. to prove my Indian citizenship?
Ans. It would be sufficient for you to provide the details of your birth such as date of birth, month, year and place of birth. If you do not have the details of your birth, then you will have to provide the same details about your parents. But there is absolutely no compulsion to submit any document by/of the parents. Citizenship can be proved by submitting any documents related to date of birth and place of birth. However, a decision is yet to be taken on such acceptable documents. This is likely to include voter cards, passports, Aadhaar, licenses, insurance papers, birth certificates, school leaving certificates, documents relating to land or home or other similar documents issued by
government officials. The list is likely to include more documents so that no Indian citizen has to suffer unnecessarily.
Completely false. According to the amendments to the Citizenship Act 1955, citizenship by birth depends on when you were born. If you were born before 1st July 1987, then it is sufficient for you to prove that you were born in India. But due to the subsequent amendments to the Citizenship Act, If you were born between July 1, 1987 to December 3, 2004 you will have to prove not only that you were born in India but also that one of your parent was a citizen of India at the time of your birth. If you were born after December 3, 2004 , you have to prove that you were born in India and at the time of your birth one of your parents was a citizen of India and your other parent was not an illegal migrant.
The documents likely to be required are also falsely narrated. First of all what stops the Government from prescribing a list of documents before starting the population register so that people are clear as to what is required. Secondly, to say that AADHAR Card will be one of the documents to prove citizenship is totally false. Section 9 of Aadhar Act reads as under:
The Aadhaar number or the authentication thereof shall not, by itself, confer any right of, or be proof of, citizenship or domicile in respect of an Aadhaar number holder.
Similar arguments can be made about licenses, etc. While being in the voters list or having a passport is only for citizens it is not even mentioned in the Rules whether these documents are sufficient by themselves as proof of citizenship.
Q.8 Do I have to prove ancestry dating back before 1971?
Ans. No. for pre-1971 genealogy, you do not have to submit any type of identity card or any documents like the birth certificate of parents/ancestors. It was valid only for the Assam NRC, based on the ‘Assam Accord’ and the directive of the Honourable Supreme Court. For the rest of the country, the NRC process is completely different and under The Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003.
While it is true that Assam process was different, now it is further impacted by CAA and in fact Government of India has declared that they will redo the entire NRC in Assam.
The purpose of both Assam procedure and rest of India is to have a list of citizens and to disenfranchise those who do not fall within this list. As written in response to question 7, there are different sets of criteria required to establish citizenship.
Q.9 If it is so easy to prove identity, then how 19 lakh people in Assam were affected due to NRC?
Ans. Infiltration is an old problem in Assam. To curb it, there was a movement and in 1985, the then Rajiv Gandhi government, to identify the intruders, had to enter into an agreement to prepare NRC, assuming the cut-off date of March 25, 1971.
In fact, this Assam accord is sought to be overridden by CAA. Even in Assam, a large number of people have been declared as non-citizens despite having all documents. In one sense (though this is only a limited argument) it is easier to prove citizenship in Assam then in rest of India. If you prove that you have entered Assam, say in 1964 from Bangladesh you will be entitled to citizenship. In rest of the country this would not be enough. If you have entered rest of India after January 26, 1950 from say Pakistan or even Bangladesh you would be treated as an illegal migrant. Barring a few exceptions, only if you are born in India would you be treated as an Indian citizen. Therefore in Assam, if you entered in 1964, you will not need to prove your birth but the fact that you have been in Assam since then which can be through various other documents such as property cards, etc. But in rest of India this would not be enough. Of course, in many other respects citizenship for persons in Assam is more difficult than those in rest of India.
Q.10 During NRC, will we be asked to present old documents, which are difficult to collect?
Ans. There is nothing like that. Common documents will only be required to prove identity. When the NRC is announced at the national level, then rules and instructions will be made for it in such a way that no one will face any trouble. The government has no intention of harassing its citizens or putting them in trouble.
Again wrong. This answer lacks any basis whatsoever when the amendments to the Citizenship Act 1955 lays down the criteria in terms of proof required of parents being citizens of India based on when you are born. Instead it is just enough to implement the Foreigners Act effectively to find out who are not the citizens.
Q.11 What if a person is illiterate and does not have relevant documents?
Ans. In this case, the authorities will allow that person to bring a witness. Also, other evidence and community verification etc. will also be allowed. A proper procedure will be followed. No Indian Citizen will be put in undue trouble.
On what basis is this being said? There are no rules prescribed to prove birth. The only provision under law today as prescribed under The Compulsory Registration of Births and Deaths Act, 1969. This provides that at least from 1969 every birth will have to be registered. But overwhelming number of persons in rural areas and many in urban areas including large number of slum and pavement dwellers, etc. do not register births. In the absence of any rule, regulation, notification or other Government Order on what basis is it being said that witnesses will be allowed?
Q.12 There are a large number of people in India who do not have homes, are poor and are not educated and they do not even have any basis of identity. What will happen to such people?
Ans. This is not entirely correct. Such people were on some basis and they also go the benefit of the welfare schemes of the government. Their identity will be established on the basis of that.
We do not know on what basis this is being said. Availing of welfare schemes may not establish citizenship. No law says this. Also the question is not of establishing identity but of proving citizenship.
Q.13 Does NRC exclude anyone for being transgender, atheist, Adivasis, Dalits, women and landless without/ without documents?
Ans. No NRC, as and when carried out does not affect any of the mentioned above.
Technically it does not exclude. But how are poor dalits, adivasis, women and landless without documents, or with documents which have mismatch in spelling of names to prove that they are Indian citizens. Thus a large number of them may be excluded on some arbitrary criteria.
(Feature Image – The Siasat Daily)