The human rights implications of the Citizenship Amendment Act (CAA) and National Register of Citizens (NRC)

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Introduction

The Citizenship Amendment Act (CAA) and the National Register of Citizens (NRC) are two policies that have sparked controversies, and intense debates across India. They have been introduced to achieve specific objectives and address various concerns. Recently, the NRC and CAA have been the focus of attention because the state of Assam has initiated a process to identify names who fraudulently made it to the NRC in the state. The matter was mentioned before the Supreme Court bench which after hearing the arguments of the counsels reserved its verdict on December 12, 2023. Proponents argue that CAA and NRC are necessary for identifying legal or genuine citizens, national security, tackling illegal immigrants, protecting persecuted religious minorities, and strengthening the rule of law. Despite these reasons, the concerns raised by the critics regarding the potential human rights implications and discrimination are required to be acknowledged. Before delving into the human rights implications of the CAA and NRC, let us understand what is CAA and NRC. 

On December 30, 1955, the Citizenship Act, 1955 was enacted to “provide for the acquisition and determination of Indian citizenship,” which was further amended in December 2019, by the Citizenship Amendment Act (CAA), 2019. The CAA aims to provide expedited citizenship to persecuted religious minorities from Afghanistan, Pakistan, and Bangladesh. While the act grants citizenship to Hindus, Sikhs, Buddhists, Jains, Parsis, and Christians, it excludes Muslims resulting in concerns about equality and violates the principle of non-discrimination. On the other hand, the NRC is the official record that consists of names of legal Indian citizens and helps in detecting undocumented immigrants. Its implementation involves requiring individuals to provide specific documents to prove their citizenship. 

Who can register in the NRC?

• Those who appear in the 1951 list of the NRC, in any of the electoral rolls up to 24 March 1971, and their descendants. 
• Those who came from another region on or after 01 January 1966 but before 25 March 1971, were declared as Indian citizens by the Foreigner Tribunal after they registered themselves with FRRO (Foreigners Registration Regional Officer). 
• Persons having documents that were issued up to March 24, 1971 midnight. 

What happens to those who are excluded from NRC?

Those who are excluded from NRC will have the opportunity to prove their citizenship firstly in the quasi-judicial courts (Foreign Tribunals) and later in the higher courts. 

Constitutionality of CAA and NRC

The Constitutionality of CAA and NRC has been a subject of legal scrutiny in India. Supporters contend that they are within the framework of the Indian Constitution while critics argue that these measures violate constitutional principles. Critics of the CAA argue that it violates the principle of equality enshrined in Article 14 of the Constitution of India (Right to equality) as it discriminates on the basis of religion by excluding Muslims from its provisions. This religious discrimination goes against the principle of secularism mentioned in the Indian Constitution which guarantees equal treatment under the law. Moreover, opponents argue that the CAA infringes Article 15, which prohibits discrimination on the grounds of religion, race, caste, sex, or place of birth. 

Similarly, critics of the NRC argue that the burden of proving citizenship placed on individuals goes against the presumption of innocence guaranteed under Article 21 of the Constitution of India (Right to protection of life and personal liberty). The fear of being classified as ‘illegal immigrants’ and facing detention in detention centers creates a climate of uncertainty and anxiety. Moreover, the separation of families due to the NRC’s requirements and potential deportation orders can have profound emotional and psychological impacts on individuals and communities. There are also concerns that the implementation of the NRC may disproportionately impact marginalized communities, violating their right to equality.

Along with this, the CAA and NRC introduce intrusive documentation requirements that invade an individual’s privacy and dignity (Right to privacy). The excessive collection of personal data and the demand for specific documents can be invasive, potentially exposing individuals to surveillance and discrimination. Lastly, the Constitutionality of the CAA and NRC is a complex legal matter and has been the subject of ongoing legal challenges. The recent order concerning the NRC process in Assam has been a response to longstanding concerns about illegal immigration from Bangladesh. The arguments in the matter related to Section 6(A) of the Citizenship Act were heard by the top Court and the verdict for the same was reserved by a five-judge bench.

Indigenous people and Refugees: Human Rights

Human rights of Indigenous people are mentioned under the United Nations Declaration on Rights of Indigenous People (UNDRIP) including right to self-determination, right to culture and language, right to free, prior, and informed consent, right to traditional knowledge, and right to land, territories, and resources. Article 26 of the UNDRIP illustrates that 

• “Indigenous people have the right to the lands, territories, and resources which they have traditionally owned, occupied, or otherwise used or acquired.
• Indigenous people have the right to own, use, develop, and control the lands, territories, and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.
• States shall give legal recognition and protection to these lands, territories, and resources. Such recognition shall be conducted with due respect to the customs, traditions, and land tenure systems of the indigenous peoples concerned.”

In short, Indigenous people have full enjoyment of the rights or privileges given by the government whereas the refugees do not have full privilege to such rights. In context with the latest issue where the state of Assam initiated the NRC process to determine illegal immigrants, it can be determined that the indigenous people have more rights to the lands, territories, and resources than the refugees. 

Related Case Law

Shri Krishna Sharma vs. State of West Bengal and Others  (February 11, 1954): In case of a conflict between Indian statutes and international law, Indian courts are generally bound to uphold domestic law.