NRC, CAA are everyone's burden: Faizan Mustafa

There has been much debate about how the National Register of Citizens (NRC) and the Citizenship Amendment Act (CAA) will impact people. Faizan Mustafa, leading constitutional law expert based in Hyderabad, shares his perspectives with DH in an exclusive interview.

Why has the government considered census as population register? Are they both not governed by different Acts?

Census is done under the 1948 Act and National Population Register (NPR) under the Citizenship Amendment Act 2003. Census process is inclusive. It does not seek documents. Ideally, census data should not be shared or made public. People have the right to privacy and Data Protection Law has not yet been enacted.

How does the NRC affect a common man? Do you think we have to stand in line like demonetisation days? That’s the fear among the public.

Unlike Assam NRC, National NRC will not be through the application but house-to-house enumeration. Yes, people will have to give their documents. In fact, asking people to prove that they are citizens is indeed problematic.

Also Read: CAA-NRC: Karnataka begins mapping ‘illegal’ immigrants

What happens to those who are left out of NRC? Which Act governs the actions taken on them?

There is no clarity about it. However, to be a non-citizen means you are a foreigner and a foreigner is to be sent to the detention camp till he or she is deported. Since most of these excluded people have not indeed migrated to India from any country, they will not be accepted by any country and therefore they cannot be deported. We cannot keep them in the detention centre forever and therefore they will be released but will not have all the fundamental rights.

They won’t be given refugee status either. The Foreigners’ Act of 1946 will govern them.

Do we have an official refugee law to deal with the immigrants who come here due to economic reasons and other types of persecutions?

We have not yet joined the UN Convention on Refugees but our policy until recently was to give them shelter. We did welcome refugees from Tibet, Sri Lanka and Chakmas.

Is there a criterion to decide how is one categorised as a victim of religious persecution? On what basis? What documents?

There are international norms on religious persecution. It is to be individually assessed and you need to prove personal persecution. Most people will find it difficult to prove both their nationality of three countries and their migration due to religious persecution.

We have used the word religious persecution in the Statement of Objects & Reasons of the Act. There are international protocols in place on religious persecution. Quite a detailed examination of the applicant would be required to prove religious persecution and people will find it difficult to meet these yardsticks.

How does one become exempted from the Passport Act and Foreigners Act? How will it affect the current immigrants who in all probability are not exempted from these as they have illegally entered India?

Notifications were issued in 2015 and 2016 under the Foreigners’ Act and exempted them [the six communities mentioned in the Citizenship Amendment Act] from the proceedings against them as illegal migrants. CAA will now pave way for them to get citizenship. But it will be a cumbersome process. The law says an illegal migrant cannot apply for citizenship but now CAA is removing this bar. Thus illegal migrants of certain religions will become eligible for citizenship.

Those excluded from NRC have to face Foreigners’ Tribunals. They can then appeal to High Courts and the Supreme Court but the litigation cost would be beyond the means of poor people. Meanwhile, the entire nation will keep searching for documents and stop working. Some experts estimate that we will spend approximately 2 lakh crores and our GDP may go down by another 1.5%.

Many Bangladeshi immigrants in Bengaluru are economic immigrants, doing odd jobs for which there is demand. Will they have to be sent back, going by the rules?

Even though in the statement of objectives of CAA we say that we are doing it for religious persecution, this doesn’t exist in the text of the provision. Two interpretations are possible.

One is that anyone can come. If this is the interpretation, then the whole reason that they are doing it for religious persecution would fall. How can you exclude those who are not religiously persecuted?

The other is that if it is only for religious persecution, then people who are coming here for economic reasons, even if they are Hindus, they will not benefit from this law.

And the third anomaly is, even if the reason is religious persecution, if you go to the exempted areas like Kohima [basically the areas governed by the Inner Line Permit in the North-East], you will not get citizenship.

The Supreme Court in Sonowal case in 2005-2006, struck down the Illegal Migrant Determination Act (IMDT) Act of 1983, which was specific to Assam, saying that the classification was based on geography. For the rest of the country, there was the Foreigners’ Act. Under the IMDT Act, the one who alleges that you are not a citizen must prove that you are not a citizen. Under the Foreigners’ Act, the burden of proving citizenship is on the person against whom the allegation is made.

I can understand that we have to protect the interests of people in the Northeast. But you can’t be denying citizenship to those who enter the country from there. You can say that you will be given citizenship but you will be relocated to elsewhere. People under persecution enter the nearest point of entry.

Does that mean this Bill will not help more people and will be rendered useless?

Everyone will not be in the queue like what happened after demonetisation, but they will come to your house and ask for papers. If there is some discrepancy in papers, like spelling mistakes and other errors, it will lead to exclusion. The list will go on and on.

The government has now clarified that NRC shall apply to both Hindus as well as Muslims and even Hindus will have to undergo the same process. Accordingly, let us presume that 3 crore Muslims won’t be able to produce necessary documents. It would equally mean that some 15 crores by a rough guess would also be in the same situation.

You can’t keep such a large number in detention centres. One detention centre for 3000 people is costing us Rs 46 crores for construction. How many detention centres will we need?

One foreigners’ tribunal costs the exchequer 36 lakhs a year. And we already have 200 tribunals in Assam. How many such tribunals can we keep? The whole country will need thousands of such tribunals. The process will adversely affect GDP.

The Hindus excluded have to prove that they came from Pakistan, Afghanistan or Bangladesh [because they become stateless and 2019 Act isn't applicable to them]. Tell me how somebody who was born in Hyderabad can prove that he was born in Peshawar and he came here because of religious persecution?

The law needs to be prospective. You can’t be asking people to prove their citizenship which has already been conferred because they were born in India. You can say the children born after, say, December 31, 2019, will need documents. People will understand and start registering births in their families as we have now created awareness about the importance of birth certificates.

What should the government have done differently to avoid the current situation?

The Supreme Court asked them to disseminate information about CAA. So they gave some public advertisements recently. The issue is that students in universities and intellectuals do know that CAA in itself is not a problem. CAA with NRC is a big problem. And the NRC process is already on with NPR. NPR is the first step in the direction of NRC. Through NPR, NRC has already been initiated. NPR is governed by the Citizenship Act 2003. And you are seeking too much data, you are taking biometric data and connecting it with Aadhaar. It may lead to surveillance by the state and impinge on people’s right to privacy—of everyone, not just Muslims.

Any data which is with the government can be abused by the government. There is no adequate security for the data. There are stories that reveal the selling of Aadhaar data for 500 rupees.