Resist NPR! Are NRC-NPR even Legal!? Two Analytical Comments by Experts
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Sukla Sen
Feb 17, 2020, 9:12:28 AM2/17/20
to foil-l, Say NO 2 UID Core Group
[The two analytical comments reproduced below argue that the
NRC-NPR are framed as Rules under the Citizenship Act without due legal
authority, conferred by the parent Act.
The one at sl. no. I. below appears to have dissected the issue in more minute details.
It also further argues that various provisions of the NRC-NPR are, even otherwise, violative of Indian laws: (i) by according undefned (arbitrary) discretionary powers to the government officials determining "citizenship" and (ii) flagrantly breaching the fundamental right to privacy, as detemined by the Supreme Court.
It also goes on to assert that the NRC-NPR are in "violation of ... fundamental rights (of Indian citizens) to life and human dignity under article 21 and various liberties under article 19 of the Constitution of India."
<<(I)t is important to understand that NPR has no other purpose except as a precursor to NRC. Citizenship Registration Rules, 2003 for compulsory registration of Indian citizens....
...
In short, population register (NPR) is a step before NRC. It does not exist independent of NRC and its only purpose is to lead to NRC. While it is true that NPR was prepared in 2010 and updated in 2015, at that time it was prepared only for linkage with Aadhar. In 2009 the Aadhar Scheme was formulated when the idea (as reflected in the scheme itself) was to link it with NPR. So NPR started in 2010-11 and was updated in 2015. Aadhar Act came in 2016 which has no reference to NPR. So *if NPR is to be updated now it is only for using it is a filter for NRC*.
...
But the Citizenship Registration Rules were issued on 10.12.2003 i.e. before the Act was amended (on 3rd December 2004). At that time there was no power to make rules for citizenship register. Thus, in legal parlance the rules were issued without any such power and were and continue to be ultra vires the Citizenship Act and thus bad in law. Therefore, the entire *NPR and NRC are completely without legal authority* and should be struck down as such.
...
4. What is more, none of the officers who are to decide about citizenship are provided with any guidelines as to how to decide if a person was born in India. This is what in law is known as unguided and uncanalised discretion and not permitted. There is a delegation by Parliament to Rule-making authority, which in turn delegates to the officer but this further delegation or subdelegation gives completely arbitrary and unguided discretion which is not permissible under law.
5. In addition, the details asked for can also amount to *violation of the right to privacy* under the Putthuswamy Judgment. This is all the more so because there is *nothing in the rules which prevents disclosure of all this information to third parties*. In fact third parties can complain about someone’s citizenship and has a right to be heard which means right to access to personal information.>>
(Excerpted from sl. no. I. below.)
<<Under Article 256 of the constitution, a law made by the parliament must be enforced throughout the country and the states are duty-bound to exercise their executive power to ensure compliance with that law. So the question about whether states can refuse to implement the NPR and the National Register of Citizens (NRC) – in the context of the Citizenship (Amendment) Act, 2019 (CAA) – depends on whether these registers are part of a law passed by parliament.
...
Despite the pending hearing in the Supreme Court, the government is going ahead with the NPR – a project created under the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003. These rules were framed under sub-sections (1) and (3) of section 18 of the Citizenship Act, 1955. The NPR is defined under rule 2(l) of the said rules. As per the definition, NPR means the register containing details of persons usually residing in a village or rural area or town or ward or demarcated area within a ward in a town or urban area.
Sub rule (4) says that the NPR shall be prepared by collecting information relating to all persons who are usually residing within the jurisdiction of the local registrar, who is a revenue official of the state government at the village level. Sub rule (5) says that the local register of the NPR shall contain details of persons entered in the NPR. Inclusion of the details in the NRC will be done after due verification undertaken from the NPR.
...
Surprisingly, though the NPR appears for the first time in the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules framed in 2003, there is no mention of it in any of the provisions of the Citizenship Act – the parent law.
...
Rules are not independent provisions and they cannot provide for any substantive scheme or project unless it is already provided for in the law enacted by parliament. Such rules are ultra vires the law and can have no legal validity. The Supreme Court had, in M/s Tata Iron and steel company Ltd. Vs Workmen of M/s Tata Iron and Steel Company Ltd. observed, “The delegation of legislative power is permissible only when the legislative policy and principle are adequately laid down”
The fact is that the Citizenship Act 1955 does not provide for the National Population Register. Therefore the rules cannot provide for it. The legislature needs to lay down the policy and principle, only then can the rules provide for the details. This is the basic principle of subordinate legislation. Rules are subordinate legislation which should be subordinate to the law made by the legislature. [Emphasis added.]>>
It also further argues that various provisions of the NRC-NPR are, even otherwise, violative of Indian laws: (i) by according undefned (arbitrary) discretionary powers to the government officials determining "citizenship" and (ii) flagrantly breaching the fundamental right to privacy, as detemined by the Supreme Court.
It also goes on to assert that the NRC-NPR are in "violation of ... fundamental rights (of Indian citizens) to life and human dignity under article 21 and various liberties under article 19 of the Constitution of India."
<<(I)t is important to understand that NPR has no other purpose except as a precursor to NRC. Citizenship Registration Rules, 2003 for compulsory registration of Indian citizens....
...
In short, population register (NPR) is a step before NRC. It does not exist independent of NRC and its only purpose is to lead to NRC. While it is true that NPR was prepared in 2010 and updated in 2015, at that time it was prepared only for linkage with Aadhar. In 2009 the Aadhar Scheme was formulated when the idea (as reflected in the scheme itself) was to link it with NPR. So NPR started in 2010-11 and was updated in 2015. Aadhar Act came in 2016 which has no reference to NPR. So *if NPR is to be updated now it is only for using it is a filter for NRC*.
...
But the Citizenship Registration Rules were issued on 10.12.2003 i.e. before the Act was amended (on 3rd December 2004). At that time there was no power to make rules for citizenship register. Thus, in legal parlance the rules were issued without any such power and were and continue to be ultra vires the Citizenship Act and thus bad in law. Therefore, the entire *NPR and NRC are completely without legal authority* and should be struck down as such.
...
4. What is more, none of the officers who are to decide about citizenship are provided with any guidelines as to how to decide if a person was born in India. This is what in law is known as unguided and uncanalised discretion and not permitted. There is a delegation by Parliament to Rule-making authority, which in turn delegates to the officer but this further delegation or subdelegation gives completely arbitrary and unguided discretion which is not permissible under law.
5. In addition, the details asked for can also amount to *violation of the right to privacy* under the Putthuswamy Judgment. This is all the more so because there is *nothing in the rules which prevents disclosure of all this information to third parties*. In fact third parties can complain about someone’s citizenship and has a right to be heard which means right to access to personal information.>>
(Excerpted from sl. no. I. below.)
<<Under Article 256 of the constitution, a law made by the parliament must be enforced throughout the country and the states are duty-bound to exercise their executive power to ensure compliance with that law. So the question about whether states can refuse to implement the NPR and the National Register of Citizens (NRC) – in the context of the Citizenship (Amendment) Act, 2019 (CAA) – depends on whether these registers are part of a law passed by parliament.
...
Despite the pending hearing in the Supreme Court, the government is going ahead with the NPR – a project created under the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003. These rules were framed under sub-sections (1) and (3) of section 18 of the Citizenship Act, 1955. The NPR is defined under rule 2(l) of the said rules. As per the definition, NPR means the register containing details of persons usually residing in a village or rural area or town or ward or demarcated area within a ward in a town or urban area.
Sub rule (4) says that the NPR shall be prepared by collecting information relating to all persons who are usually residing within the jurisdiction of the local registrar, who is a revenue official of the state government at the village level. Sub rule (5) says that the local register of the NPR shall contain details of persons entered in the NPR. Inclusion of the details in the NRC will be done after due verification undertaken from the NPR.
...
Surprisingly, though the NPR appears for the first time in the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules framed in 2003, there is no mention of it in any of the provisions of the Citizenship Act – the parent law.
...
Rules are not independent provisions and they cannot provide for any substantive scheme or project unless it is already provided for in the law enacted by parliament. Such rules are ultra vires the law and can have no legal validity. The Supreme Court had, in M/s Tata Iron and steel company Ltd. Vs Workmen of M/s Tata Iron and Steel Company Ltd. observed, “The delegation of legislative power is permissible only when the legislative policy and principle are adequately laid down”
The fact is that the Citizenship Act 1955 does not provide for the National Population Register. Therefore the rules cannot provide for it. The legislature needs to lay down the policy and principle, only then can the rules provide for the details. This is the basic principle of subordinate legislation. Rules are subordinate legislation which should be subordinate to the law made by the legislature. [Emphasis added.]>>
(Excerpted from sl. no. II. below.)
(Unless specified otherwise all emphases in the above two excerpts are in the original.)
What, in this context, we have to keep in mind is the following.
AA. The CAA, in the very briefest, is arbitrary and discriminatory.
Sends out the toxic message that Muslims just do not belong.
In flagrant violation of the very essence of the Indian Constitution.
BB. The NPR is the first, and arguably the most crucial, stage of the NRC.
The lists of doubtful citizens would be prepared based on the data collected (and not collected) via the NPR.
CC. Those on the "doubtful" list will then, under the NRC provisions, have to "prove" their citizenship in terms of (difficult to produce) "documents" (and procedures) - just not specified.
It's left entirely to the discretion of the concerned government officials.
DD. Apart from other, way more, serious consequences - (i) stripping too many of their citizenship and, thereby, turn them "stateless" and (ii) install an elaborate infrastructure for a surveillance state, it'll also open the floodgates for an extortion regime.
EE. While Muslims are specifically targeted, non-Muslims will not remain unscathed.
If the Assam experience is any indicator.
(As per one report, out of 19 lakh filtered out - via the NRC, 12 lakh are Hindus, 6 lakh Muslims and 1 lakh indigenous tribals.)
The CAA would be of any help only to too few, if at all, outside of the North-East and West Bengal.
FF. So, the only option is to resist the NPR - in as many ways as possible.
AA. The CAA, in the very briefest, is arbitrary and discriminatory.
Sends out the toxic message that Muslims just do not belong.
In flagrant violation of the very essence of the Indian Constitution.
BB. The NPR is the first, and arguably the most crucial, stage of the NRC.
The lists of doubtful citizens would be prepared based on the data collected (and not collected) via the NPR.
CC. Those on the "doubtful" list will then, under the NRC provisions, have to "prove" their citizenship in terms of (difficult to produce) "documents" (and procedures) - just not specified.
It's left entirely to the discretion of the concerned government officials.
DD. Apart from other, way more, serious consequences - (i) stripping too many of their citizenship and, thereby, turn them "stateless" and (ii) install an elaborate infrastructure for a surveillance state, it'll also open the floodgates for an extortion regime.
EE. While Muslims are specifically targeted, non-Muslims will not remain unscathed.
If the Assam experience is any indicator.
(As per one report, out of 19 lakh filtered out - via the NRC, 12 lakh are Hindus, 6 lakh Muslims and 1 lakh indigenous tribals.)
The CAA would be of any help only to too few, if at all, outside of the North-East and West Bengal.
FF. So, the only option is to resist the NPR - in as many ways as possible.
And it has got to be collective resistance.]
I/II.
https://puclmaharashtra.wordpress.com/2020/02/16/npr-and-nrc-are-legally-unsustainable-mihir-desai-senior-advocate/
NPR and NRC are legally unsustainable: Mihir Desai, Senior Advocate
PUCL-Maharashtra Uncategorized February 16, 2020 5 Minutes
National Population Register (NPR) and National Register of Citizens (NRC) are in the midst of a huge controversy. While a lot has been written about the unconstitutionality of Citizens Amendment Act (CAA) not much discussion has happened about the unconstitutionality of NPR and NRC. Partly this is because NRC and NPR find their roots in the 2003 Rules and partly because it is easier to attack Constitutionality of CAA as being in violation of the secular nature of the State and in violation of equality clause. Unlike CAA, NPR and NRC do not facially violate secularism nor do they violate equality clause. A Muslim can always apply for citizenship under NRC but not so under CAA (especially if s/he is an illegal immigrant from Pakistan, Bangladesh or Afghanistan).
At the same time substantial legal arguments can be made for the Unconstitutionality of NPR and NRC. Let us look at some of them. But before doing so it is important to understand that NPR has no other purpose except as a precursor to NRC. Citizenship Registration Rules, 2003 for compulsory registration of Indian citizens. It requires the following steps:
(a) A door to door survey will be carried out of all residents of India and their details including answers to various questions will be set out in what is known as Population Register (popularly known as NPR)
(b) This population register will be verified and scrutinized by the local registrar who is an officer at lowest geographical unit such as gram panchayat or ward.
(c) During scrutiny those who this officer thinks is a “doubtful citizen” will be noted as doubtful citizen in the Population Register.
(d) Such doubtful citizen will be given opportunity to be heard by the taluka level office before deciding to include or exclude their name in the National Citizenship Register.
(e) A draft Local Register of Citizens will be published at Taluka or Subdistrict level and objection can be raised which will be decided at the Taluka level.
(f) If anyone is aggrieved that person can approach the District Registrar.
In Assam, the decision of Administrative Authority can be challenged before Foreigners Tribunal. As yet for rest of India there is no such provision.
In short, population register (NPR) is a step before NRC. It does not exist independent of NRC and its only purpose is to lead to NRC. While it is true that NPR was prepared in 2010 and updated in 2015, at that time it was prepared only for linkage with Aadhar. In 2009 the Aadhar Scheme was formulated when the idea (as reflected in the scheme itself) was to link it with NPR. So NPR started in 2010-11 and was updated in 2015. Aadhar Act came in 2016 which has no reference to NPR. So if NPR is to be updated now it is only for using it is a filter for NRC.
Now let us look at the grounds of its challenge.
1. Both NPR and NRC have their root in Citizenship (Registration of Citizens and Issue of Identity Cards) Rules, 2003. As the Rules themselves mention they are framed under Section 18(1) and (3) of the Citizenship Act, 1955.
(a) It is important to understand that Rules are not made by Parliament i.e. they are not a piece of legislation but a piece of what is known as delegated legislation. NRC Rules could have been made provided the Citizenship Act, 1955 allowed for such rules to be made. Besides they could have been made if there was some reference to citizenship register in the Act.
(b) The Citizenship Act was amended from 3rd December 2004 to provide for Maintenance of National Citizenship Register and compulsory registration of every citizen. This was done by inserting Section 14 A into citizenship Act. Similarly, Section 18 which is the rule making power was amended on the same day by insertion of subsection 2 (ia) by allowing rules to be framed for procedure to be followed for compulsory registration of citizens.
(c) In short, the power to issue rules for NRC came into effect for the first time on 3.12.2004 and after this date the Citizenship Registration Rules could be framed.
(d) But the Citizenship Registration Rules were issued on 10.12.2003 i.e. before the Act was amended. At that time there was no power to make rules for citizenship register. Thus, in legal parlance the rules were issued without any such power and were and continue to be ultra vires the Citizenship Act and thus bad in law. Therefore, the entire NPR and NRC are completely without legal authority and should be struck down as such.
All the subsequent arguments are on the footing that the Citizenship Registration Rules have been validly made.
2. The Manual for NPR issued by the Central Government provides a questionnaire which includes various questions including those concerning parents place and date of birth. Rule 4 of Registration Rules do not provide as to what questions can be asked. Rule 3, however provides for particulars which are to be mentioned in the Citizenship Register concerning each individual. There are twelve such particulars mentioned, none of which deal with parents date of birth or place of birth. Obviously therefore any such questions, the particulars of which are not to be entered into the Register cannot be asked under the Rules and therefore provision of such questions is in violation of rules.
3.The verification and scrutiny of one’s citizenship has to be done by a Taluka level officer under Rule 4 (4). Thus citizenship- which in case of registration or naturalization is to be decided by the Central Government is in case of birth left to be decided by the local level Taluka officer which amounts to what in law is called excessive delegation of power.
4. What is more, none of the officers who are to decide about citizenship are provided with any guidelines as to how to decide if a person was born in India. This is what in law is known as unguided and uncanalised discretion and not permitted. There is a delegation by Parliament to Rule-making authority, which in turn delegates to the officer but this further delegation or subdelegation gives completely arbitrary and unguided discretion which is not permissible under law.
5. In addition, the details asked for can also amount to violation of the right to privacy under the Putthuswamy Judgment. This is all the more so because there is nothing in the rules which prevents disclosure of all this information to third parties. In fact third parties can complain about someone’s citizenship and has a right to be heard which means right to access to personal information.
Thus looked at from any point of view the NPR cannot be justified. This is apart from the fact that a large number of people do not have any documentation whatsoever to prove their birth and therefore in its implementation the NPR and NRC can deprive millions of genuine citizens of their citizenship, which in turn would at the very least be in violation of their fundamental rights to life and human dignity under article 21 and various liberties under article 19 of the Constitution of India. More so because burden of proof is on the citizen for establishing her citizenship.
II.
https://thewire.in/law/national-population-register-nrc-citizenship-act
The National Population Register Has No Proper Legal Backing and May Be Ultra Vires
In the entire discussion on NPR, NRC and CAA, one important point seems to have been missed out – the legal status of the NPR. Nowhere does the Citizenship Act actually mandate the creation of the population register.
The National Population Register Has No Proper Legal Backing and May Be Ultra Vires
Illustration: Adapted from a first day cover issued by the Postal Department.
P.D.T. Achary
12/FEB/2020
Some of the state governments have declared that they will not implement the National Population Register (NPR). The Union government has allotted over Rs 3000 crore for this project to be carried out in the whole country. Project NPR is claimed to be aimed at supporting the Census operations which are likely to start shortly. But what exactly is its legal status?
Under Article 256 of the constitution, a law made by the parliament must be enforced throughout the country and the states are duty-bound to exercise their executive power to ensure compliance with that law. So the question about whether states can refuse to implement the NPR and the National Register of Citizens (NRC) – in the context of the Citizenship (Amendment) Act, 2019 (CAA) – depends on whether these registers are part of a law passed by parliament.
The question is crucial because constitutionally speaking, states cannot refuse to comply with a Central law. The Union government can even direct a state government to comply with such a law. In the event of refusal by a state government to comply with a Central direction, Article 356 empowers the president to hold that the government of such a state cannot be carried on in accordance with the constitution. This may lead to the imposition of President’s rule in the state.
Also read: As States Battle Centre on CAA, a Guide to the Issues Before the Supreme Court
However, that stage has clearly not been reached yet. First, instead of officially refusing to comply with the CAA, the state governments opposed to it have simply passed resolutions in their legislative assemblies requesting the Union government to repeal the Act. The state of Kerala was the first to pass such a resolution. Technically such resolutions may not have the sanction of the house rules. But a legislature has the power to even suspend a rule to enable it to discuss a matter or express an opinion if the rule stands in the way.
The constitutional validity of the CAA is going to be considered by the Supreme Court shortly. The court may rule either way and the issue of citizenship of persecuted ‘illegal migrants’ may get settled one way or the other. But the issue of NRC will continue to haunt the citizens for a long time. Non-implementation of the NRC, for the time being, does not eliminate the fear of detention or deportation from the minds of a section of Indians.
Despite the pending hearing in the Supreme Court, the government is going ahead with the NPR – a project created under the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003. These rules were framed under sub-sections (1) and (3) of section 18 of the Citizenship Act, 1955. The NPR is defined under rule 2(l) of the said rules. As per the definition, NPR means the register containing details of persons usually residing in a village or rural area or town or ward or demarcated area within a ward in a town or urban area.
Sub rule (4) says that the NPR shall be prepared by collecting information relating to all persons who are usually residing within the jurisdiction of the local registrar, who is a revenue official of the state government at the village level. Sub rule (5) says that the local register of the NPR shall contain details of persons entered in the NPR. Inclusion of the details in the NRC will be done after due verification undertaken from the NPR.
Also Read: What Is Article 131, Under Which Kerala Has Challenged CAA?
Thus the NPR is a document which contains all the details of persons, not only citizens, who live in an area in a village. The data for the NRC will essentially consist of the data contained in the NPR. Thus, the NPR becomes very important in the context of the preparation of the NRC. The rules make it clear that the NPR and the NRC are interlinked. Although the CAA is not legally connected with the NRC, the political comments frequently made by the ruling party leaders clearly establish that linkage.
In the entire discussion on the NPR, NRC and CAA, one important point seems to have been missed out – what exactly is the legal status of the NPR?
Surprisingly, though the NPR appears for the first time in the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules framed in 2003, there is no mention of it in any of the provisions of the Citizenship Act – the parent law.
That is rather strange because these rules have been framed under clauses (1) and (3) of section 18 of the Citizenship Act. Clause (1) clearly says that rules may be made to carry out the purposes of the Act. But the Act makes no provision whatsoever for the NPR. This omission is important because rules can be made only in respect of a provision in the parent Act.
Rules are not independent provisions and they cannot provide for any substantive scheme or project unless it is already provided for in the law enacted by parliament. Such rules are ultra vires the law and can have no legal validity. The Supreme Court had, in M/s Tata Iron and steel company Ltd. Vs Workmen of M/s Tata Iron and Steel Company Ltd. observed, “The delegation of legislative power is permissible only when the legislative policy and principle are adequately laid down”
The fact is that the Citizenship Act 1955 does not provide for the National Population Register. Therefore the rules cannot provide for it. The legislature needs to lay down the policy and principle, only then can the rules provide for the details. This is the basic principle of subordinate legislation. Rules are subordinate legislation which should be subordinate to the law made by the legislature.
Also read: A Modest Proposal for Simplifying the NPR and NRC
If rules go outside the four walls of the parent law, they are struck down by the court on the ground that they are ultra vires the parent law. These rules are made by government departments which derive the authority to make them from the law made by the legislature. So if the parent law does not make any provision for a particular scheme, the government departments derive no authority to make any rules thereon.
The rules relating to the NPR seem to suffer from serious legal infirmities. These infirmities existed at all times ever since these rules were framed and they cannot be cured by having the rules laid before both houses of parliament. Only a suitable provision in the parent Act can cure these infirmities.
PD.T. Achary is a former secretary general of the Lok Sabha and a constitutional expert.
https://puclmaharashtra.wordpress.com/2020/02/16/npr-and-nrc-are-legally-unsustainable-mihir-desai-senior-advocate/
NPR and NRC are legally unsustainable: Mihir Desai, Senior Advocate
PUCL-Maharashtra Uncategorized February 16, 2020 5 Minutes
National Population Register (NPR) and National Register of Citizens (NRC) are in the midst of a huge controversy. While a lot has been written about the unconstitutionality of Citizens Amendment Act (CAA) not much discussion has happened about the unconstitutionality of NPR and NRC. Partly this is because NRC and NPR find their roots in the 2003 Rules and partly because it is easier to attack Constitutionality of CAA as being in violation of the secular nature of the State and in violation of equality clause. Unlike CAA, NPR and NRC do not facially violate secularism nor do they violate equality clause. A Muslim can always apply for citizenship under NRC but not so under CAA (especially if s/he is an illegal immigrant from Pakistan, Bangladesh or Afghanistan).
At the same time substantial legal arguments can be made for the Unconstitutionality of NPR and NRC. Let us look at some of them. But before doing so it is important to understand that NPR has no other purpose except as a precursor to NRC. Citizenship Registration Rules, 2003 for compulsory registration of Indian citizens. It requires the following steps:
(a) A door to door survey will be carried out of all residents of India and their details including answers to various questions will be set out in what is known as Population Register (popularly known as NPR)
(b) This population register will be verified and scrutinized by the local registrar who is an officer at lowest geographical unit such as gram panchayat or ward.
(c) During scrutiny those who this officer thinks is a “doubtful citizen” will be noted as doubtful citizen in the Population Register.
(d) Such doubtful citizen will be given opportunity to be heard by the taluka level office before deciding to include or exclude their name in the National Citizenship Register.
(e) A draft Local Register of Citizens will be published at Taluka or Subdistrict level and objection can be raised which will be decided at the Taluka level.
(f) If anyone is aggrieved that person can approach the District Registrar.
In Assam, the decision of Administrative Authority can be challenged before Foreigners Tribunal. As yet for rest of India there is no such provision.
In short, population register (NPR) is a step before NRC. It does not exist independent of NRC and its only purpose is to lead to NRC. While it is true that NPR was prepared in 2010 and updated in 2015, at that time it was prepared only for linkage with Aadhar. In 2009 the Aadhar Scheme was formulated when the idea (as reflected in the scheme itself) was to link it with NPR. So NPR started in 2010-11 and was updated in 2015. Aadhar Act came in 2016 which has no reference to NPR. So if NPR is to be updated now it is only for using it is a filter for NRC.
Now let us look at the grounds of its challenge.
1. Both NPR and NRC have their root in Citizenship (Registration of Citizens and Issue of Identity Cards) Rules, 2003. As the Rules themselves mention they are framed under Section 18(1) and (3) of the Citizenship Act, 1955.
(a) It is important to understand that Rules are not made by Parliament i.e. they are not a piece of legislation but a piece of what is known as delegated legislation. NRC Rules could have been made provided the Citizenship Act, 1955 allowed for such rules to be made. Besides they could have been made if there was some reference to citizenship register in the Act.
(b) The Citizenship Act was amended from 3rd December 2004 to provide for Maintenance of National Citizenship Register and compulsory registration of every citizen. This was done by inserting Section 14 A into citizenship Act. Similarly, Section 18 which is the rule making power was amended on the same day by insertion of subsection 2 (ia) by allowing rules to be framed for procedure to be followed for compulsory registration of citizens.
(c) In short, the power to issue rules for NRC came into effect for the first time on 3.12.2004 and after this date the Citizenship Registration Rules could be framed.
(d) But the Citizenship Registration Rules were issued on 10.12.2003 i.e. before the Act was amended. At that time there was no power to make rules for citizenship register. Thus, in legal parlance the rules were issued without any such power and were and continue to be ultra vires the Citizenship Act and thus bad in law. Therefore, the entire NPR and NRC are completely without legal authority and should be struck down as such.
All the subsequent arguments are on the footing that the Citizenship Registration Rules have been validly made.
2. The Manual for NPR issued by the Central Government provides a questionnaire which includes various questions including those concerning parents place and date of birth. Rule 4 of Registration Rules do not provide as to what questions can be asked. Rule 3, however provides for particulars which are to be mentioned in the Citizenship Register concerning each individual. There are twelve such particulars mentioned, none of which deal with parents date of birth or place of birth. Obviously therefore any such questions, the particulars of which are not to be entered into the Register cannot be asked under the Rules and therefore provision of such questions is in violation of rules.
3.The verification and scrutiny of one’s citizenship has to be done by a Taluka level officer under Rule 4 (4). Thus citizenship- which in case of registration or naturalization is to be decided by the Central Government is in case of birth left to be decided by the local level Taluka officer which amounts to what in law is called excessive delegation of power.
4. What is more, none of the officers who are to decide about citizenship are provided with any guidelines as to how to decide if a person was born in India. This is what in law is known as unguided and uncanalised discretion and not permitted. There is a delegation by Parliament to Rule-making authority, which in turn delegates to the officer but this further delegation or subdelegation gives completely arbitrary and unguided discretion which is not permissible under law.
5. In addition, the details asked for can also amount to violation of the right to privacy under the Putthuswamy Judgment. This is all the more so because there is nothing in the rules which prevents disclosure of all this information to third parties. In fact third parties can complain about someone’s citizenship and has a right to be heard which means right to access to personal information.
Thus looked at from any point of view the NPR cannot be justified. This is apart from the fact that a large number of people do not have any documentation whatsoever to prove their birth and therefore in its implementation the NPR and NRC can deprive millions of genuine citizens of their citizenship, which in turn would at the very least be in violation of their fundamental rights to life and human dignity under article 21 and various liberties under article 19 of the Constitution of India. More so because burden of proof is on the citizen for establishing her citizenship.
II.
https://thewire.in/law/national-population-register-nrc-citizenship-act
The National Population Register Has No Proper Legal Backing and May Be Ultra Vires
In the entire discussion on NPR, NRC and CAA, one important point seems to have been missed out – the legal status of the NPR. Nowhere does the Citizenship Act actually mandate the creation of the population register.
The National Population Register Has No Proper Legal Backing and May Be Ultra Vires
Illustration: Adapted from a first day cover issued by the Postal Department.
P.D.T. Achary
12/FEB/2020
Some of the state governments have declared that they will not implement the National Population Register (NPR). The Union government has allotted over Rs 3000 crore for this project to be carried out in the whole country. Project NPR is claimed to be aimed at supporting the Census operations which are likely to start shortly. But what exactly is its legal status?
Under Article 256 of the constitution, a law made by the parliament must be enforced throughout the country and the states are duty-bound to exercise their executive power to ensure compliance with that law. So the question about whether states can refuse to implement the NPR and the National Register of Citizens (NRC) – in the context of the Citizenship (Amendment) Act, 2019 (CAA) – depends on whether these registers are part of a law passed by parliament.
The question is crucial because constitutionally speaking, states cannot refuse to comply with a Central law. The Union government can even direct a state government to comply with such a law. In the event of refusal by a state government to comply with a Central direction, Article 356 empowers the president to hold that the government of such a state cannot be carried on in accordance with the constitution. This may lead to the imposition of President’s rule in the state.
Also read: As States Battle Centre on CAA, a Guide to the Issues Before the Supreme Court
However, that stage has clearly not been reached yet. First, instead of officially refusing to comply with the CAA, the state governments opposed to it have simply passed resolutions in their legislative assemblies requesting the Union government to repeal the Act. The state of Kerala was the first to pass such a resolution. Technically such resolutions may not have the sanction of the house rules. But a legislature has the power to even suspend a rule to enable it to discuss a matter or express an opinion if the rule stands in the way.
The constitutional validity of the CAA is going to be considered by the Supreme Court shortly. The court may rule either way and the issue of citizenship of persecuted ‘illegal migrants’ may get settled one way or the other. But the issue of NRC will continue to haunt the citizens for a long time. Non-implementation of the NRC, for the time being, does not eliminate the fear of detention or deportation from the minds of a section of Indians.
Despite the pending hearing in the Supreme Court, the government is going ahead with the NPR – a project created under the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003. These rules were framed under sub-sections (1) and (3) of section 18 of the Citizenship Act, 1955. The NPR is defined under rule 2(l) of the said rules. As per the definition, NPR means the register containing details of persons usually residing in a village or rural area or town or ward or demarcated area within a ward in a town or urban area.
Sub rule (4) says that the NPR shall be prepared by collecting information relating to all persons who are usually residing within the jurisdiction of the local registrar, who is a revenue official of the state government at the village level. Sub rule (5) says that the local register of the NPR shall contain details of persons entered in the NPR. Inclusion of the details in the NRC will be done after due verification undertaken from the NPR.
Also Read: What Is Article 131, Under Which Kerala Has Challenged CAA?
Thus the NPR is a document which contains all the details of persons, not only citizens, who live in an area in a village. The data for the NRC will essentially consist of the data contained in the NPR. Thus, the NPR becomes very important in the context of the preparation of the NRC. The rules make it clear that the NPR and the NRC are interlinked. Although the CAA is not legally connected with the NRC, the political comments frequently made by the ruling party leaders clearly establish that linkage.
In the entire discussion on the NPR, NRC and CAA, one important point seems to have been missed out – what exactly is the legal status of the NPR?
Surprisingly, though the NPR appears for the first time in the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules framed in 2003, there is no mention of it in any of the provisions of the Citizenship Act – the parent law.
That is rather strange because these rules have been framed under clauses (1) and (3) of section 18 of the Citizenship Act. Clause (1) clearly says that rules may be made to carry out the purposes of the Act. But the Act makes no provision whatsoever for the NPR. This omission is important because rules can be made only in respect of a provision in the parent Act.
Rules are not independent provisions and they cannot provide for any substantive scheme or project unless it is already provided for in the law enacted by parliament. Such rules are ultra vires the law and can have no legal validity. The Supreme Court had, in M/s Tata Iron and steel company Ltd. Vs Workmen of M/s Tata Iron and Steel Company Ltd. observed, “The delegation of legislative power is permissible only when the legislative policy and principle are adequately laid down”
The fact is that the Citizenship Act 1955 does not provide for the National Population Register. Therefore the rules cannot provide for it. The legislature needs to lay down the policy and principle, only then can the rules provide for the details. This is the basic principle of subordinate legislation. Rules are subordinate legislation which should be subordinate to the law made by the legislature.
Also read: A Modest Proposal for Simplifying the NPR and NRC
If rules go outside the four walls of the parent law, they are struck down by the court on the ground that they are ultra vires the parent law. These rules are made by government departments which derive the authority to make them from the law made by the legislature. So if the parent law does not make any provision for a particular scheme, the government departments derive no authority to make any rules thereon.
The rules relating to the NPR seem to suffer from serious legal infirmities. These infirmities existed at all times ever since these rules were framed and they cannot be cured by having the rules laid before both houses of parliament. Only a suitable provision in the parent Act can cure these infirmities.
PD.T. Achary is a former secretary general of the Lok Sabha and a constitutional expert.
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