Right to Reside and NRC

Right to Reside is a fundamental right guaranteed under Article 19(1) (e) of the Indian Constitution. The objective of the article is to remove internal barriers and freedom to stay in any territory in India. The National Register of Citizens (NRC) on the other hand, is an initiative which aims to remove the aliens from India. With an implementation of NRC, we now have different criteria for determining who are the citizens of Assam and the rest of the country.  Can States defy the law made by the Union? Can the Union impose it on the States despite their resistance? Unlike the United States of America, which is a Federation of States, India is a Union of States, though, this particular point does not stop the Federal Government from implementing something which the State denies.

National Register of Citizens

The NRC is a register of all citizens. It is technically a register which acts as a line of demarcation between citizens and illegal migrants and helps to document all the legal citizens of India. It was registered in the state of Assam in the year 2013-14. When the Government was posed with questions of why Assam first it came out with a logical answer that, Assam being situated closely to the border of the country, faced many problems of illegal migration, and had the names registered as per the census of 1951. Since the process of registering under the NRC was unsatisfactory, the Supreme Court directly monitored the process. The final update was published on 31st August 2019. The Bharatiya Janata Party (BJP) felt that many illegal migrants’ names were included while legal residents’ names were not.
On 19th November 2019, it was promised by the Home Minister Amit Shah that NRC will be implemented all over the Country. As per the Citizenship Act of 2003, the Central Government could order for the preparation of the National Population Register and the names to be registered in the NRC will be looked into and decided according to the citizenship status.

NRC and its Constitutional Violation

With the birth of CAA in 2019,  it is clear that it enables the minority of citizens from the neighbouring Islamic countries to become citizens of India easily and it has nothing to do with the NRC. Article 19 is applicable only to the citizens of the country.  Union Home Minister Amit Shah in a programme with ‘Agenda Aaj Tak’ expressed that “Whoever is not eligible to be included in the NRC will not be sent out of the country. No Indian will be sent out of the country. I want to tell the minorities that special facilities will be made for them and also other people (for the NRC). But I also want to ask should we keep our borders open for illegal immigrants?” The framers of Indian Constitution were far-sighted enough to frame the Constitution in a manner that would not pave the way for the illegal migrants and foreigners to claim citizenship. Hence, it is very clear from the above statement that NRC is not violative of Right to Reside. 

Citizenship Amendment Act 2019

The Parliament enacted the Citizenship Amendment Act on December 11th 2019. There were many Pro-CAA and Anti-CAA groups formed in and outside the Parliament. Addressing the constitutionality of CAA will be vital at this time. 

Article 14

Article 14 of the Indian Constitution says that “the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” Equality is an important term in the Indian Democracy. It guarantees equality before law and equal protection of law. The backward society was protected through the quota system. As per the Indian Constitution, the equals are treated equally and the un-equals are maintained.

Classification as per Article 14 has to be done in a way where, – (i) the classification must be based on intelligible differentia (ii) the differentia must have a rational nexus between the law vis a vis the classification, and the object sought from the law. If the law passes this test, it is not violative of Right to Equality under Article 14.

In the case of the State of W.B. v. Anwar Ali Sarkar the Court laid down the following criteria to judge if the classification was reasonable- (i) The classification must be based on intelligible differentia (ii) the differentia must have a rational nexus between the law vis a vis the classification, and the object sought from the law. If the law passes this test, the law is said to be not violative of Right to Equality under Article 14.

To prove reasonable classification, it is necessary to prove that, the religion included in the CAA are in classification and others (Islam) outside the classification. It becomes a point of consideration to find out whether the religions classified in our country face any form of oppression in the other countries. (Islamic countries- Afghanistan, Pakistan, Bangladesh).

Why only Pakistan, Afghanistan, and Bangladesh?

As per Article 13(2), “The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void” and as per Article 13(3), “unless the context otherwise requires law includes any Ordinance, order, bye law, rule, regulation, notification, custom or usages having in the territory of India the force of law; laws in force includes laws passed or made by Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.”

The Supreme Court, in 2008, laid down the following provisions in the case of DDA v. Joint Action Committee, Allottee of SFS Flats
(a) if it is unconstitutional; (b) if it is dehors the provisions of the Act and the regulations; (c) if the delegate has acted beyond its power of delegation; (d) if the executive policy is contrary to the statutory or a larger policy on which policy decisions could be challenged.

It is well known and accepted that policy precedes the law. Policy is the basic structure for a law. Therefore, the Supreme Court may consider the law to be unconstitutional but not the policy framed. Thus the Government has the right to choose any country unless the law expresses that the particular policy is violative of any of the rights guaranteed under the Constitution.

It is very clear that in the Constitution of the Islamic Countries, the Muslims and Non- Muslims are treated in a fundamentally different manner and they are also persecuted in certain states for believing, belonging and following other religions. The main objective of this law is to protect the interest of minorities’ in a secular democracy.
Thus, the requirement of article 14 of the Indian Constitution is satisfied.

Article 21

Protection of Life and Personal Liberty: No person shall be deprived of his life or personal liberty except according to procedure established by law.” The right guaranteed under this article is (i) Right to Life and (ii) Right to personal liberty.

Decoding the Word “Deprive” in the Article, deprive is a previously granted right which is being resisted. Prior to the enactment of the CAA, there has been a restriction on people from the three Islamic Countries from entering India. The inclusion of Hindus, Buddhists, Jains has not deprived Muslims of their rights. Hence, it is not violative of Article 21 of the Indian Constitution.

Article 15

“Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth:  The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, and place of birth or any of them”. The article clearly states “Citizens.” Hence it is not violative of Article 15 of the Indian Constitution.

Conclusion

India is a secular country and it tries to include all religion and religious practices. Secularism was included in the preamble of India through the 42nd Amendment in the landmark decision of Kesavananda Bharati v. State of Kerala and was made a part of basic structure in the case of S. R. Bommai v. Union of India. There are several petitions filed against the CAA and NRC questioning its Constitutional validity. It is clear from analysing this article that the law is not judged by proper judicial interpretations. Many States have denied the implementation of CAA without knowing or looking into the consequence. If the States fail to implement them properly this might lead to a failure of the Constitutional machinery. The question on whether the CAA and NRC violates the Indian Constitution is thus proved negative.

References

  1. State of W.B. V. Anwar Ali Sarkar  [1952] SCR 284
  2. DDA v. Joint Action Committee, Allottee of SFS Flats AIR 2008 SC 1343
  3. Kesavananda Bharati V.State of Kerala (1973) 4 SCC 225
  4. S R Bommai v. Union of India (1994) 3 SCC 1
  5. www.indiatoday.in
  6. Article on Contours of the federal showdown over the CAA and NRC by Shubhankar Dam
  7. www.timesofindia.indiatimes.com
  8. www.thewire.in
  9. www.firstpost.com
  10.  www.indiatoday.in

Questions

  1. What is NRC?
  2. Explain the constitutional validity of the CAA 2019.
  3. Do NRC and CAA violate any Constitutional Right?
  4. Name the cases that recognized Secularism.

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