Adv. Syed Ghiasuddin
The Constitution of India and Citizenship:
The Constitution of India has delegated the power to make laws on acquisition and termination of citizenship and all other matters relating to citizenship to the parliament of India under Article 11 of the Constitution. It was based on Article 11 of the Constitution, that the Government of India enacted The Citizenship Act 1955 to determine, grant and terminate the citizenship of the post-1950 generation.
The Citizenship Act of 1955 granted powers to the Central Government under Section 18 to make rules pertaining to determination and acquisition of citizenship through registration and naturalization, and also for the annulment of the same. The question of granting citizenship via the process of registration and naturalization arises only for those who are not citizens by either birth or descent. In view of the above Section, the Govt of India enacted the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003.
National Population Registration as Pre-test under Census Act 1948:
The process of updating of National Register of citizens is discussed under Rule 4 of sub-rule 3 of citizenship rules 2003 it says, ‘ for the preparation and inclusion of local register of citizens, the particulars collected from every family and individual in the National Population Register shall be verified by the local registrar of citizen’. It is thus crystal clear that the entries of the National Registrar of Citizen will be borrowed from the local register of Population. But the rules are silent about how the National Population Register at National and at local level local population register shall be prepared? It is here that the Census act 1948 comes into the picture.
Nature Section 17A of Census Act 1948:
The central government is granted power under 17-A to conduct ‘pre-test, pilot studies, census of houses which precede the population count and post enumeration check and evaluation studies or statistical surveys or any other operation as may be deemed necessary for the purpose of the census’.
Firstly, on the construction of this provision, it can be deduced that any pre-test or survey will not be a part of the census, instead, it will be a supplementary exercise for the purpose of the census, even though it may be conducted along with census, Secondly, this provision doesn’t impose an obligation on the central government to conduct the pre-test to the census. Finally, the provision fails to define what will constitute the pre-test, hence the law here being ambiguous, it is for the executive to determine the necessity and the procedure of the pre-test.
As mentioned above, the rules of 2003 are also silent with regard to the procedure for the preparation of the population register. It simply states that entries from the population register will be taken down for the preparation of a National population register. The power granted to the Central Government under Section 17-A of Census Act 1948 to conduct any pre-test for purpose of the census is in fact the National Population Register. It is not necessary for the pre-test to be labeled as the National Population register, but from the section, it may be inferred that any pre-test conducted may be considered as an exercise for the preparation of the National Population Register. The following sequence of Gazettes explains, How the National Population Register and Pre-test to census under Section 17A of the Census are connected. The first Gazette is about the National Population and then comes to Second Gazette under Census Act 1948 issued under Section 8 and Section 17A. The issuance of the second Gazette under the Census Act 1948 along with 17A makes the way for the National Population Register.
The sequence of Gazette for Census and NPR:
First Gazette: In pursuance of the power under rule 3 Sub-rule 4 of the Citizenship Rules 2003 the Govt of India ordered the preparation and update the population register dated 25-06-2015. This notification is issued under Rule 3 of the Rules of 2003 that discusses the procedure for the preparation of a National Citizenship Register. This procedure starts with the preparation and updating of the existing population register. Now since this notification is issued under Rule 3, it may be referred to mean not only the Preparation of National local Register but also for the Preparation National Citizenship Register. Rule 4 provides the procedure for National population Registers, it explicitly mentions under Sub-rule 3 that the entries of local Population Register will be the verified and scrutinized by Local Registrar and may be assisted by one or more person as specified by Registrar General of Citizen Registration and the list that will be created under the officials of Registrar General of Citizen Registration will be Local Register of Citizen.
Since the above-mentioned notification was issued under Rule 3 of Citizenship Act 2003 and these rules are silent about the procedure for the preparation National Population Register; to fill up the inherent deficiency in these rules, The Gazette of India No. 2007 dt. 25-6-2019 notification was issued in exercise of the powers under section 17A of the Census Act 1948. In this notification, the Central Government ordered for the conduct of a pre-test for the 2021 census of India. This pre-test was to be conducted from 12th August to 30th September 2019.
The Gazette of India No. 110 dt. 7-1-2020 notifies the commencement of the Census under Section 3 but it also mentions that ‘in the exercise of the powers conferred by Section 17A of Census Act 1948’. Any data and information collected under this notification will not only be used for the Census but also for the pre-test et al. for the purpose of the census. Reading into this, it may not be inaccurate to say that the census of 2020 and pre-test for it is being conducted simultaneously. The pre-test and actual census being one and the same, the objective of pre-test et al. loses its viability! Furthermore, these entries can also be considered for the making of the National Population Register as they are being collected in the name of a pre-test to the census.
It is worth mentioning that the State of Telangana has issued the same notification by re-publication of the Gazette of India Notification No. 110 to the State Gazette of Telangana. The data collected under this notification may be used for the preparation of a State Population Register.
The Evidentiary Valve of the Data collected under Census Act 1948 and under Pre-test to census
Section 15 of Census Act 1948 says that ‘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 constitute an offense under this Act’. As such, it can be deduced that Section 15 bars the evidentiary value of the data collected under the Census Act.
Going by the latest notification issued under Section 3 along with section 17A, once such collected data finds its place in the local population register then it is governed by Citizenship Rules 2003 and thus has evidentiary value to the extent that it can be used to determine the right of citizenship and in the absence of it the citizenship may stand annulled.
Citizenship is an institution that legitimizes the masses and the right of citizenship is the key to all rights. In the process of determining the vital question of citizenship, the State has to be definite in its policy. Undoubtedly the Constitution of India has granted discretionary powers to the parliament in the affairs of citizenship but in the principle of Constitutional law and Administrative law, discretionary power can’t be used in an arbitrary manner. In the above-discussed process of transfer of entries from Pre-test to Census to National Population register and finally to the National Register of Citizens, the Person specified by Registrar General of Citizen Registration has been granted discretionary power to determine a Doubtful vote under Rule 4 Sub-Rule 4.It is thus obvious that for this discretionary powers to not be used in an arbitrary manner, the judiciary should provide checks by issuing guidelines for this process of determination of Doubtful voter.
Citizens by birth and by descent are at the risk of their citizenship being annulled upon the failure to qualify a test that is primarily laid under the Census Act 1948 and by no mean it for the determination of Citizenship. The existing procedure of National Population register and more so National Citizenship Register is a grave violation of the principle of delegated legislation and the principle ‘what cannot be done directly, cannot be done indirectly’. The interpretation of Article 11 of the Constitution by no means grants unrestricted powers to Parliament to annul the citizenship in this arbitrary manner. Any Laws enacted or Rules and notifications issued in pursuance of Article 11 shall not turn the discretionary power to arbitrary power. There is a need for Judicial Activism to keep a check on the affairs of the Executive since the real essence of Democracy is a system of checks and balances.
Adv. Syed Ghiasuddin is currently pursuing LLM in Constitutional Law at Osmania University.