Population, citizen registers remain a chimera
Tribes in North East will be at a disadvantage when having to prove their citizenship or the births of their parents in India.
The deaths of at least 18 persons and 705 arrests by the Yogi Adityanath government in Uttar Pradesh alone apart from the 5,000 detenues in the same state over violent protests to the controversial Citizenship Amendment Act, 2019 makes us accept that this law has been passed without the consent of all Indian citizens. For any law to be a good law, it has to promote the greatest good of the greatest number while endorsing social acceptance to negate social rejection. Whether this law passes this test is a moot question.
There are two camps over this divisive Act — those who support and those who oppose it. Those who oppose the Act are epitomised by Kerala Chief Minister Pinarayi Vijayan who asserted in a national daily in an op-ed piece that this law flouts the right to equality and non-discrimination guaranteed by Article 14 of the Constitution and thereby its very preamble itself because the language camouflages a sinister attempt by the BJP to enforce Hindutva on the nation through the backdoor.
There is no doubt that law discriminates between refugees from Pakistan, Afghanistan and Bangladesh (PAB as an acronym) on the grounds of religion which infarcts the right to equality and non-discrimination guaranteed by Article 14. There is also no doubt that the three PAB states unabashedly discriminate between Muslim minority groups such as the Ahmadis who have to declare themselves as non-Muslims in Pakistan to be eligible to vote. These states discriminate between the majority Sunni population and minority sects of Islam such as the Shias, Ismailis, and Hazaras because of their divergent beliefs from mainstream Islam. Forget other religious minorities like the Christians, Hindus, Parsis and Jews who are forced to convert to Islam.
But the counter to Vijayan’s diatribe, is of rabid Hindutva protagonist Subramaniam Swamy, who has argued that this divisive law is needed because the three PAB states have brutally persecuted non-Muslim minorities since 1947, driving them into Indpia. Swamy conveniently forgets India can ill afford to support refugees of any religion when there is an economic recession in the country.
But even assuming that both Vijayan and Swamy got it wrong, it is beyond doubt that the language of Article 14 is mandatory and based on a bedrock of public policy valued throughout the civilised world. The Supreme Court has reiterated in a catena of judgements that non-discrimination between persons (who will include refugees) on the grounds of religion, race, gender, place of birth or language cannot be obliterated by the state even on the humanitarian ground of neighboring countries persecuting their minorities.
Whether the same Supreme Court will uphold or strike down this divisive law which has been challenged in a spate of petitions filed before it, will allow us to deduce whether the Supreme Court is supreme because it is neutral or it is supreme simply because a litigant can go no higher. In India, all political controversies metamorphose into judicial ones where the apex court reveals its true colours.
If implemented, the central government will have to compulsorily register every citizen of India and issue him a national identity card through a National Registration Authority which will have to compile and update a National Register of Citizens. This has been inserted in section 14A of the amended Citizenship (Amendment) Act, 2019. For this purpose, the Registrar-General of India under Section 3 (1) of the Registration of Births and Deaths Act, 1969, shall act as the national registration authority and function as the registrar general for citizens’ registration.
But this task cast upon the Registrar General of Births and Deaths is too gargantuan to implement because there are huge discrepancies in births and deaths which take place in villages and which are actually registered in large and backward states like UP and Bihar, with 62 per cent and 74 per cent of births actually registered in both these states while only 38 per cent and 43 per cent of deaths were actually registered. Throughout India, 85 per cent of births and 74 per cent of deaths were registered so that a huge section of citizens who were born and died were never recorded.
Some north eastern states like Nagaland, Manipur, and Arunachal Pradesh have less than 40 per cent of their deaths actually registered. Only 60 per cent of deaths are registered in Assam which has 100 per cent of its births registered, furnishing misleading statistics. There is definitely inadequate infrastructure across the states to implement the constitutionally mandated Registration of Births and Deaths Act of 1969. With such inferior infrastructure, illiterate tribals and other disadvantaged groups will be unable to prove their citizenship or the births of their parents within India. This is specially true of those tribals living in the border states of the north east where they will be left stateless which violates international law.
The most important task of the Registrar General of India under the ministry of home affairs is the registration of births and deaths because welfare schemes cannot be implemented without accurate data on population statistics. Every infant has a fundamental right to be registered which proves his legal existence and nationality. The reality is that infants are dependent on their parents for their very existence during the first two years of their lives so that their fundamental right remains on paper which is never exercised by illiterate parents.
A civil registry system would be the unified process of continuous, compulsory and universal recording of births, still births and deaths. Until we have a foolproof system of registering births, still births and deaths throughout India including tribal hamlets and border areas of the north east, the ambitious project of having a National Register for Citizens or even a National Population Register remains chimerical which will violate the right to equality and non-discrimination by the state guaranteed in the Constitution.
The writer holds a Ph.D in Media law and is a journalist-cumlawyer of the Bombay High Court.