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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.”
In the Triple Talaq case, Justice Rohinton Nariman had ruled that arbitrariness was a ground for
striking down a law.

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.

The Assam NRC was the product of history and the natural endpoint of the 1985 Assam
Accord.

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.

The Assam NRC exercise was overseen by the Supreme Court, under the stewardship of then
Chief Justice of India Ranjan Gogoi

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.

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