By Tvisha Shroff
At the heart of India’s constitutional order lies a notion of who may benefit from that order – a notion of who is an Indian citizen. The laws and regulations around citizenship are no small matter; they define how the nation conceives of itself and consequently how we – the people of India – conceive of ourselves. Citizenship then, as Hannah Arendt so provocatively put it in reference to the deprivation of the citizenship of Jewish Germans, is no less than the “right to have rights”.Individual rights and liberties are deeply linked to a state-based legal order; they hinge on an individual’s membership of a state. Re-defining the terms of that membership is tantamount to restricting an individual’s access to all of their most basic fundamental rights and liberties. It is in this light that I would like to focus on the legal and moral consequences of the implementation of the National Register of Citizens (the ‘NRC’) in India.
The NRC raises concerns of enormous proportions when viewed in light of the controversial Citizenship Amendment Act (or ‘CAA’). By introducing religious/community-based criteria to the granting of Indian citizenship, the CAA has distorted the politico-legal conception of Indian citizenship as it had been conceived by the country’s forefathers and written into its Constitution. This has been the central issue of the recent protests against both the CAA and NRC, and it remains so with good reason. However, this piece takes a narrower focus to critique the very idea of establishing a National Register of Citizens. It argues that the most striking feature in the establishment of such a register is the manner in which the burden of proof is seemingly placed upon individuals to demonstrate the fact of their citizenship to the state. This principle can be traced in its legal origins to the Foreigners Act, 1946, which grants the Central Government a great deal of discretion in the determination of nationality, even in those cases where nationality may have been acquired by birth. This is deeply problematic for reasons ranging from the ability of people to provide evidence of their citizenship to the setting of fair standards to assess such evidence. Perhaps even more troubling is the fact that individuals will be required to prove their citizenship to retain meaningful access to their fundamental rights and liberties.
The issue of the NRC holding individuals responsible for proving their citizenship to the State raises two important questions. First, what does a failure to prove citizenship under such a process mean for those who lack documentation? Does the process de facto leave such persons stateless and are there limits placed upon states under international law in rendering persons stateless in such a manner? And second, given that citizenship is the only link between an individual and his or her rights as guaranteed by the State, what are the moral consequences of placing such a burden on individuals? Should a lack of documentation or an inability to procure documentation cast aspersions on an individual’s citizenship, upon which their access to justice in every sense of the word depends? As over 1,100 persons languish in detention camps across Assam with little or no access to the finances required to secure legal representation or pay bail, and with more camps being built across the country, it appears that the human cost of the NRC is already beginning to be felt in India.
Let us begin by addressing the first question. International law recognizes the sovereign right of nation-states to determine who its nationals are, subject to certain limits. Under international legal norms, a person’s right to the citizenship of a State depends on the existence of a ‘genuine and effective’ link between the individual and the State, established by way of birth, residence or descent. The presumption is always that an individual has a nationality unless there is reason to believe the contrary.The NRC process, by insisting that it is for citizens to prove their ‘genuine and effective’ link to the country, turns this presumption on its head. Additionally, state discretion to determine citizenship is restricted when the decision to deprive an individual of his nationality results in statelessness (either de jure or de facto) and when the rules that result in denaturalization are discriminatory. The established norms of international law thus set a high bar of scrutiny for the NRC and its proposed implementation, both against its effective discrimination against certain vulnerable groups, as well as the arbitrary manner in which it will render those without appropriate documentation de facto stateless. These concerns were highlighted in the recent outrage against an order of the Gauhati High Court which dismissed an appeal by a woman declared to be a foreigner by the Foreigners Tribunal despite producing eight different documents to establish her case. The reason for this was the ostensible failure to examine witnesses “proving” the contents of the documents produced, setting an evidentiary bar for proof of citizenship far removed from the lived realities of the average Indian for whom even the production of such documents can be extremely challenging, let alone the production of witnesses to corroborate them.
Behind the formal, legal concerns of the NRC lie the moral implications of subjecting ordinary people to a process at the end of which they might be declared to be aliens in Indian territory for want of evidence of their birth, residence or descent. The Indian Government has not revealed what the fate of those who lack the appropriate documentation to be ‘registered’ as citizens will entail – it can only be assumed that such persons will be rendered de facto stateless. Indeed the words of Hannah Arendt’s warnings ring true: “The fundamental deprivation of human rights is manifested first and above all in the deprivation of a place in the world…” We must then ask ourselves whether we might allow a section of our population who may have no link to any other nation whatsoever to be deprived of their most basic right – their place in the world – based on their inability to procure documentation and the administrative discretion of state officials implementing the NRC.
 David A Martin, ‘The Civic Republican Ideal for Citizenship, and for Our Common Life’ (1994) 35 Virginia Journal of International Law, 301
 See, David Owen, “On the Right to Have Nationality Rights: Statelessness, Citizenship and Human Rights” Netherlands International Law Review (2018) 65:299–317
 Section 2 of the Citizenship (Amendment) Act, 2019 No. 47 of 2019
 Articles 5 – 11 of The Constitution of India
 Sections 8 & 9 of the Foreigners Act, 1946
 This was Ardendt basic premise in her criticism of the international human rights regime in her essay, The Origins of Totalitarianism (1958), see Owen n. 3 for more.
 Inside Assam’s Detention Camps: How the Current Citizenship Crisis Disenfranchises Indians, Nazimuddin Siddique, Economic and Political Weekly, Vol. 55, Issue No. 7, 15 Feb, 2020
 Nationality and Statelessness – A Handbook for Parliamentarians, UNHCR and IPU, 2005
 Handbook at n. 7 above
 Handbook at n. 7 above
 Burden Of Proving Citizenship Is On The Person Making The Claim: Gauhati HC, Livelaw News Network, 25 Feb 2020 7:00 AM available at https://www.livelaw.in/news-updates/burden-of-proving-citizenship-is-on-the-person-making-the-claim-gauhati-hc-read-judgment-153103
 Gauhati High Court’s citizenship order is flawed because it ignores Indian reality, Madhav Khosla, The Print, 28 February, 2020 12:01 pm IST available at https://theprint.in/opinion/gauhati-high-courts-citizenship-order-is-flawed-because-it-ignores-indian-reality/372726/
 Hannah Arendt, The Origins of Totalitarianism (1958)
The views and opinions expressed in this article are those of the author and do not necessarily reflect those of the organization.