As India debates Corona and Congress crises, we might lose sight of a constitutional crisis in the making. With Telangana and Delhi joining the battle-line this week, the stage is set for one of the most critical constitutional contests in the history of the country. The site of contestation, the issue of conducting the National Population Register or NPR, might look small. But the stakes are very high. At stake is nothing less than federalism, secularism, and democracy.
Already, 11 states and two UTs have expressed reservations about the NPR in its present form. Never before have nearly half the states of the Union opposed a nation-wide initiative of the Union government. It is no longer a simple BJP vs anti-BJP alignment, with Bihar, Andhra Pradesh and Tamil Nadu governments joining the sceptics. The Narendra Modi government is clearly on the back-foot, as was evident during Home Minister Amit Shah’s response on the NPR in the Rajya Sabha. Yet, the outcome of the battle is far from clear. As of now, the Modi government has a clear strategy. But the state governments opposing the move do not seem to have a single strategy, or perhaps any strategy at all.
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Why NPR matters
This contest is critical since the NPR is the first step towards creating the new architecture of citizenship central to the BJP’s political game plan in Assam and West Bengal first, and then in the rest of India.
Let us not forget the larger “chronology”: First, NPR will collect information about all ‘ordinary residents’ in India. Then, the process of updating the National Register of Indian Citizens (NRIC) will begin by identifying the names of “doubtful” citizens on the NPR. Notwithstanding Amit Shah’s verbal assurance on the floor of Rajya Sabha, Rules 4(3) and 4(4) of Registration of Citizens and Issue of National Identity Cards Rules, 2003, allow for identification of doubtful citizens and their verification. No wonder the anti-CAA movement has rejected this verbal assurance and demanded an amendment in these rules. So, laws and rules are in place for the NRC; all it needs is a notification by the central government.
Once the verification of NRC is completed, the Citizenship Amendment Act (CAA) would kick into play. Non-Muslims who may have been left out of the NRIC will get a chance to re-enter the citizens’ list by claiming that they came from Bangladesh, Pakistan or Afghanistan. No such luck for Muslims. The BJP is hoping that the process should be well on its way by the time Assam and West Bengal go to polls in 2021. In any case, by 2024, the BJP hopes to wrap up the NRC. And with that, the Lok Sabha election. Hence, preventing the rollout of NPR would be the first, critical, step towards halting this divisive political agenda.
Also read: Modi govt to go ahead with NPR using new questions, says they were present in 2010 too
Dodge versus defiance
This political battle will be fought first on the legal-constitutional ground. The Modi regime has already made the first move by stapling NPR with the decennial Census. The strategy is clear. Since a state government cannot say no to the Census, it would also be forced to carry out the NPR. Until then, the Modi government will keep quiet about the NRC. Once the NPR is completed, it will notify that the updated NPR is the household survey required for creating the NRIC. A state government that refuses to carry out NPR will be charged with disrupting the Census and threatened with dismissal under Article 356 of the Constitution.
So far, the state governments have come up with two responses: dodge or defiance. Both of these are unlikely to work. Governments like Bihar, Andhra Pradesh and Delhi have not objected to the NPR but have dodged the issue by asking for its 2010 version rather than the current one. They have objected to the six additional questions inserted in the new NPR: date and place of birth of mother and father, and the number of Aadhaar (voluntary), driving license, PAN, and passport number. The Bihar government’s endorsement of the 2010 formula, with support from the BJP, indicates that the Modi government may be looking at this as the “compromise”.
The trouble with dodging, and the reason why the BJP may accept it, is that it does not block the path for the NRIC. The government can still update the NPR using the proforma used in 2010 and then use the data for identification of “doubtful” citizens. If the state governments want to save their citizens from a discriminatory and divisive exercise, they will have to add another condition to the “2010 formula”: the central government must assure, through amendments in the 2003 Rules, that the NPR data shall not be used for NRC in any form, including identification of doubtful citizens or verification. Given its political design, the Modi government is unlikely to agree to this.
The second path, that of open defiance, has been taken so far by Kerala and West Bengal, which have ordered their employees not to proceed with the NPR. This position has constitutional merit. The government would be acting to save the purity of the Census data from contamination and loss of confidentiality if it is mixed with the NPR. It would be upholding the Supreme Court judgment in the Puttaswamy case that bars any linking of Aadhaar database with any other database like the NPR.
A state government could argue that it is duty-bound not to enforce Rules framed in 2003 that govern the NPR, since these rules were framed even before the Citizenship Act was amended in 2004. Surely, a state government’s refusal to carry out the NPR on these grounds cannot be countenanced as a failure to carry out governance in accordance with the Constitution and be used as the basis to dismiss the government under Article 356.
The problem, however, is: who would listen to these arguments, in case the central government uses this pretext to dismiss state governments? The Supreme Court’s (in)action after the dilution of Article 370 does not inspire confidence.
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Delink, defer, diffuse
There is a third way that the state governments can take. Instead of ineffective de-dodging through the “2010 formula” or the risky defiance, the state governments could follow the delink-defer-diffuse route. A state government need not refuse to carry out the NPR update, but it can insist on the following precautions to ensure that the sanctity of the Census and its own legal obligations are not violated.
First, a state government is well within its powers to delink the NPR from the Census. The government can issue an order, or amend an existing order, notifying the dates for the conduct of Census House-listing and Housing data collection, without any reference to the NPR. Rajasthan government has already done that.
Second, it can defer the NPR. After the completion of the Census House-listing exercise, the state government can take the second step by notifying fresh dates for data collection for the NPR, after the entire Census exercise is completed in March 2021.
Third, when it comes to conducting the NPR, the state government must refuse to lend the services of teachers, as Section 27 of the Right to Education Act bars them from being engaged in any non-teaching duty except Census, elections and disaster relief. The state government would also be required to ensure that releasing non-teaching employees for the NPR does not impede normal functioning of the government or put its employees to unnecessary risk. Finally, in case there is a large-scale, non-violent boycott of the NPR, the state government must choose not to criminalise such a democratic protest.
This third route does not involve any confrontation between the central and the state government. That should rule out the dismissal of state governments. It should also rule out the political design to use the updated NPR for the purpose of the NRIC. The battle to defend the republic could thus begin with a small, though technical, victory.
The author is the national president of Swaraj India. Views are personal.