Why the nationwide NRC is Unconstitutional

The path to the creation of a nationwide National Register of Citizens (NRIC) appears clear with the Union Cabinet having approved funding for the updation of the National Population Register (NPR) on December 21, 2019. While the stated aim of the NPR is the creation of a comprehensive identity database of every usual resident in the country, its connection with the NRC is clear by virtue of Section 14A of the Citizenship Act, 1955 and the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003. These provisions state that the nationwide NRC is to be compiled after due verification of a person’s particulars from the NPR.

Amid the furore surrounding the passing of the Citizenship (Amendment) Act, 2019, the rollout of the NPR and the proposed introduction of the NRC, it is important to outline the constitutional case against an exercise as disruptive and destructive as the NRC. Primarily, there are two arguments that can be made against the NRC exercise: first, that it is manifestly arbitrary and violative of Article 14; and second, that the NRC poses a direct threat to the right to life guaranteed by Article 21 of the Constitution.

Manifest arbitrariness

The judgment of the Supreme Court in Maneka Gandhi v. Union of India made it clear that State actions can be tested on the threshold of Article 14 of the Constitution. The criteria to determine whether a particular act of the Executive is arbitrary was laid down in EP Royappa v. State of Tamil Nadu, where the Court outlined the doctrine of arbitrariness after expounding the fundamental contradiction between equality and arbitrariness.

Since the judgment in Royappa, the Court has recorded numerous instances where it has struck down legislation and nullified the effects of arbitrary State action, moulding its use of the doctrine of arbitrariness depending on the facts and circumstances of the case before it.

While the doctrine of arbitrariness has a rich history, recent cases have witnessed an important evolution of the test, with Justice Nariman’s use of the test of “manifest arbitrariness” marking an important step in the development of Article 14 jurisprudence. The test was first utilised to strike down the practice of triple talaq in Shayara Bano v. Union of India, where the Court held that manifest arbitrariness was a tool used by Article 14 to interdict constitutional infirmities wherever they may arise. After carrying out an exhaustive review of precedent dealing with the use of the doctrine of arbitrariness, Justice Nariman outlined the contours of the doctrine, holding that “…what is manifestly arbitrary is obviously unreasonable and being contrary to the rule of law, would violate Article 14.”

Quoting from Natural Resources Allocation, In re, Special Reference No. 1 of 2012, the Court in Shayara Bano held that an action has to be “fair, reasonable, non-discriminatory, transparent, non-capricious, unbiased, without favouritism or nepotism, in pursuit of promotion of healthy competition and equitable treatment” if it is to pass the test of manifest arbitrariness. According to the Bench, an act must

“conform to the norms which are rational, informed with reasons and guided by public interest, etc…This is the mandate of Article 14 of the Constitution of India.”

Further advances were made to the test of manifest arbitrariness in Navtej Singh Johar v. Union of India and Joseph Shine v. Union of India, where the Court held that legislations could be struck down on the ground that they were manifestly arbitrary. The decisions expanded the scope of the doctrine and confirmed their application to the actions of the executive as well as the legislature, with Article 14 framed as the panacea for all constitutional infirmities.

With the legal position on the doctrine now settled, it is submitted that the NRC violates Article 14 of the Constitution on the ground that the exercise is manifestly arbitrary. This is due to the fact that no reasons have been forthcoming from the government on the need for such an exercise, especially in the absence of historical context mandating its preparation as was the case in Assam.

Assam NRC versus Nationwide NRC

The National Register of Citizens (NRC) prepared in Assam was the product of history and the unique issue of illegal immigration facing the state. The Register was the result of the Assam Accords of 1985 which mandated the identification and deportation of foreigners who entered the state after March 24, 1971 – a demand that was the cornerstone of the Assam Movement that dominated the politics of the border state throughout the 1980s.

Therefore, the Assam NRC was the product of history and the natural endpoint of the 1985 Assam Accord; however, no historical reasons exist that mandate the compilation of the nationwide NRC.The BJP pushed for the completion of the Assam NRC only to realise that it was Hindus who failed to produce adequate documentation to be included in the final list.

The NRC appears to be an attempt to undo this by creating a new list to bring those left out back into the fold. Further, the government appears to make the argument that it is compelled by law to create the NRC. However, Section 14A of the Citizenship Act, 1955 clearly indicates that the government has a choice when it comes to issuing identity cards to citizens. No reasons have been given as to why another enumeration exercise is required when Aadhaar is already in place.

Additionally, there are serious problems with the creation of the recently approved NPR as there is no clarity on the status of those deemed to be “doubtful citizens”. This is a grave omission given that the result of exclusion from the NPR is the loss of citizenship. It exemplifies the capricious nature of the NRC and is the clearest sign yet that the exercise is wholly arbitrary and devoid of reason or logic.

Given the complete absence of historical context and the lack of any justification for the exercise, the conclusion that the NRC is manifestly arbitrary appears inevitable, as it fails the test of “fair, reasonable, non-discriminatory, transparent, non-capricious, unbiased, without favouritism or nepotism, in pursuit of promotion of healthy competition and equitable treatment” as laid down by the Court in Shayara Bano.

Therefore, the combined NPR-NRIC exercise is a clear instance of State action that is manifestly arbitrary, and consequently is violative of Article 14 of the Indian Constitution.

A grave threat to the right to life

Of the many penumbral rights read into the right to life by the Supreme Court, perhaps none is more important than the right to live with human dignity. As the Court famously declared in Francis Coralie Mullin v. Administrator, Union Territory of Delhi, “the right to life enshrined in Article 21 cannot be restricted to mere animal existence…it means something more than just bare physical survival.”

The right to live with dignity includes within its ambit the bare necessities of life such as adequate nutrition, clothing and shelter, as well as the freedom to move about and interact with fellow human beings. An act that impairs dignity is a deprivation of the right to life enshrined in Article 21, and it is evident that any form of torture or inhuman treatment would stand in violation of this constitutional guarantee. As held by the Court in Francis, the right to protection against torture or cruel treatment is implicit in Article 21.

The scope of the right to live with dignity was extended in Olga Tellis v. Bombay Municipal Corporation to include within its ambit the right to livelihood, with the Court recognising that “the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation.”

It is important to delineate the scope of the right to life and personal liberty as it is this fundamental guarantee that is threatened by the spectre of the NRC. That a person’s life – and existence – depended on him being able to prove his citizenship was made abundantly clear by the NRC, with those excluded from the final list currently languishing in overcrowded detention centres and facing the prospect of separation and statelessness.

The Assam NRC was proof that a large-scale enumeration exercise depending entirely on the effective functioning of the bureaucracy was a recipe for disaster, with numerous inconsistencies being found in both the draft and final lists of the NRC. That a clerical error could strip an individual of his citizenship is surely not what the Court envisioned when it expounded the content of the right to live with dignity in Francis – though dignity appeared almost an afterthought in the scramble for inclusion in the Assam NRC.

Further, the story of the Assam NRC is one of judicial callousness and cruelty, with both the Foreigners Tribunals and the Supreme Court responsible for imposing hardships on those seeking inclusion in the NRC. In a report on the processes involved in the compilation of the NRC, Amnesty International highlighted how Foreigners Tribunals were “complicit in perpetuating exclusion and abuse” when hearing cases, and how the Tribunals’ method of functioning were riddled with grave biases, prejudices and arbitrary decision-making processes.

Making matters worse was the fact that the Supreme Court was supervising the compilation exercise and empowered the state government to set up more Foreigners Tribunals – ensuring that only a few cases would ever reach the Apex Court.

The preparation of the nationwide NRC will inevitably follow a separate process. However, the Assam NRC exercise provides the prime example of how how bureaucratic inefficiency and judicial indifference can combine to whittle down the content of the right to life enshrined in Article 21. The singular achievement of the NRC was demonstrating that fundamental rights were entirely contingent on possessing citizenship – and there is little to indicate that the government will fare any better in the implementation of the NRIC.

Manasvin Andra is a 3rd year student from NALSAR