34. ARTICLE 35A – CONTROVERSIAL ORIGIN

What is it?

Article 35A is a provision incorporated in the Constitution giving the Jammu and Kashmir Legislature a carte blanche to decide who all are ‘permanent residents’ of the State and confer on them special rights and privileges in public sector jobs, acquisition of property in the State, scholarships and other public aid and welfare. The provision mandates that no act of the legislature coming under it can be challenged for violating the Constitution or any other law of the land.

How did it come about?

Article 35A was incorporated into the Constitution in 1954 by an order of the then President Rajendra Prasad on the advice of the Jawaharlal Nehru Cabinet. The controversial Constitution (Application to Jammu and Kashmir) Order of 1954 followed the 1952 Delhi Agreement entered into between Nehru and the then Prime Minister of Jammu and Kashmir Sheikh Abdullah, which extended Indian citizenship to the ‘State subjects’ of Jammu and Kashmir.

The Presidential Order was issued under Article 370 (1) (d) of the Constitution. This provision allows the President to make certain “exceptions and modifications” to the Constitution for the benefit of ‘State subjects’ of Jammu and Kashmir.

So Article 35A was added to the Constitution as a testimony of the special consideration the Indian government accorded to the ‘permanent residents’ of Jammu and Kashmir.

According to the Jammu-Kashmir constitution, a Permanent Resident is defined as a person who was a state subject on May 14, 1954, or who has been residing in the state for a period of 10 years, and has “lawfully acquired immovable property in the state”.

Only the Jammu-Kashmir assembly can change the definition of PR through a law ratified by a two-thirds majority.

Why does it matter?

The parliamentary route of lawmaking was bypassed when the President incorporated Article 35A into the Constitution. Article 368 (i) of the Constitution empowers only Parliament to amend the Constitution. So did the President act outside his jurisdiction? Is Article 35A void because the Nehru government did not place it before Parliament for discussion? A five-judge Bench of the Supreme Court in its March 1961 judgment in Puranlal Lakhanpal vs. The President of India discusses the President’s powers under Article 370 to ‘modify’ the Constitution. Though the court observes that the President may modify an existing provision in the Constitution under Article 370, the judgment is silent as to whether the President can, without the Parliament’s knowledge, introduce a new Article. This question remains open.

A writ petition filed by NGO We the Citizens challenges the validity of both Article 35A and Article 370. It argues that four representatives from Kashmir were part of the Constituent Assembly involved in the drafting of the Constitution and the State of Jammu and Kashmir was never accorded any special status in the Constitution. Article 370 was only a ‘temporary provision’ to help bring normality in Jammu and Kashmir and strengthen democracy in that State, it contends. The Constitution-makers did not intend Article 370 to be a tool to bring permanent amendments, like Article 35A, in the Constitution.

The petition said Article 35 A is against the “very spirit of oneness of India” as it creates a “class within a class of Indian citizens”. Restricting citizens from other States from getting employment or buying property within Jammu and Kashmir is a violation of fundamental rights under Articles 14, 19 and 21 of the Constitution.

A second petition filed by Jammu and Kashmir native Charu Wali Khanna has challenged Article 35A for protecting certain provisions of the Jammu and Kashmir Constitution, which restrict the basic right to property if a native woman marries a man not holding a permanent resident certificate. “Her children are denied a permanent resident certificate, thereby considering them illegitimate,” the petition said.

Why does it matter?

Attorney-General K.K. Venugopal has called for a debate in the Supreme Court on the sensitive subject.

Recently, a Supreme Court Bench, led by Justice Dipak Misra, tagged the Khanna petition with the We the Citizens case, which has been referred to a three-judge Bench. The court has indicated that the validity of Articles 35A and 370 may ultimately be decided by a Constitution Bench.

Counter View

The view from the Right is that by striking down Article 35A, it would allow people from outside Jammu-Kashmir to settle in the state and acquire land and property, and the right to vote, thus altering the demography of the Muslim-majority state.

The state’s two main political parties, PDP and NC, contend that there would be no J&K left if this provision is tampered with, and have vowed to fight the battle together.

Former Chief Minister Mehbooba Mufti had warned that if Article 35A is removed, there won’t be anyone left to carry the Tricolour in Kashmir; Omar Abdullah has called it the death knell for pro-India politics in the Valley.

ISSUES BEING DEBATED

Article 35A, first, the Constitutionality of insertion of Article 35A, and second the conception of equality among the Indian citizen.

33. Article 370 & Procedure for Amendment of Constituion

SPECIAL PROVISIONS

The Indian Constitution protects certain sections of the society which have faced injustice historically. In the similar vein, the Indian Constitution protects certain States to immune from the Constitution under Part XXI titled ―Temporary, Transitional and Special Provisions‖ from Articles 369 to 392. In this Part, the Indian Constitution provides temporary provisos to the State of Jammu & Kashmir (Art 370). The Indian Constitution also provides special provisions to State of Maharashtra and Gujarat (Art.371), Nagaland (Art. 371A)Nagaland (Art. 371A), Assam (Art. 371B), Manipur (Art. 371C), Andhra Pradesh (Art. 371D), Sikkim (Art. 371F), Mizoram (Art. 371G), Arunachal Pradesh (Art. 371H), Goa (Art. 371-I) and Karnataka (Art. 371 J). The object behind to provide ―special‖ and ―temporary‖ provision to the certain States was to protect these State‘s autonomy in some areas.

LIMITS ON POWERS OF PRESIDENT

The issue of consideration is, besides giving assent to the Bill passed by the Both Houses (Lok Sabha and Rajya Sabha), President of India has sole legislative power under article 123 to make ordinance when either house of the Parliament is not in session. These legislative powers of the President have only six-month effect; in other words, it is the authority to make laws without discussion in the Parliament in urgency for a shorter period. It is an exception in the making law not a general rule or a permanent measure. In the Constitutional scheme, the President of India has no legislative power to amends the Constitution by bypass the democratic process. President‘s legislative, executive and judicial power is subjective to aid and advice by the Council of Minister (Art 74), but all these powers do not allow to the President to go beyond the spirit of the Constitution.

POWERS OF PRESIDENT VIA ARTICLE 370

370. Temporary provisions with respect to the State of Jammu and Kashmir

Unparalleled Special Status to Jammu & Kashmir

Power of Parliament to make laws for the state is limited to – external affairs, defence, communications and ancilliary matters.

Such other matters in the said Lists (Union and Concurrent) as, with the concurrence of the Government of the State, the President may by order specify.

1 (d) such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify

Nowhere in the Article 370 mentions that President of India has the power to amend the Constitution or insert a new Article in the Constitution? The Article 370 only states that the President can make any exceptions and modifications with the concurrence of the Government of the State. Subclause 1 (d) of the Article 370 states that: ―Such power of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify.‖

POWERS TO AMEND THE CONSTITUTION

Article 368 is the only way to amend the Constitution, not the President. The marginal note of Article 368 States ―Power of the Parliament to amend the Constitution and procedure, therefore‖ which means it is the Parliament that has the power to amend the Constitution.

32. BRICS – PAST, PRESENT & FUTURE

32. BRICS – PAST, PRESENT & FUTURE

What is BRICS? Why do these countries hold summits? Do they have enough in common to make a difference in the global economics and politics? What have they achieved?

What are the BRICS?

In 2001, Jim O’Neill, then Chief Economist of Goldman Sachs, coined the acronym for Brazil, Russia, India and China as the largest emerging markets economies. He expected them to grow faster than the developed countries and to play an increasingly important role in the world.

And so they have. In the last 15 years, Brazil, Russia, and India have caught up with the smallest G7 economy (Italy) in terms of nominal GDP, while China has overtaken Japan and became the second largest economy in the world. Together, BRIC’s nominal GDP is similar to that of the EU or US and is likely to overtake both in the coming few years.

In 2009, BRIC countries held their first summit. In 2010, South Africa asked to join and was invited – thus transforming BRICs into BRICS.

Why does the world need the BRICS?

Jim O’Neill’s point has been that the world is changing. The leading role of the Group of Seven (G7) and, more broadly, of the Organisation for Economic Cooperation and Development (OECD) is no longer undisputed. Most multi-lateral institutions were designed in the era when the West dominated the world. The US and Europe are over-represented in the IMF and the World Bank. Together with Japan, they control most regional development banks as well.

This imbalance has been especially clear during the recent global financial crisis when the need for participation by non-G7 countries became evident. This resulted in reviving the Group of 20 (G20) and proposals to redistribute voting rights in international financial institutions. But change has been slow and Western countries continue to control the international financial institutions.

This is why BRICS summits are so important. These meetings provide a unique forum where non-OECD leaders can discuss global challenges and co-ordinate their actions within and outside global institutions. The small size of the club and the absence of OECD partners helps in shaping the discussions at the summit.

What have the BRICS nations achieved?

Even though BRICS are now playing a far more important role in the global economy, they have not yet managed to get their act together. Even on key issues like selecting a successor to Dominique Strauss-Kahn at the IMF, BRICS countries were not able to put forward a credible alternative to the conventional approach that IMF should be run by a Western European. Nor have they been able to speak with one voice about the most important global economic and financial challenges – co-ordination of monetary and fiscal policies, macroprudential regulation, development aid etc.

Do they have enough in common to get things done?

BRICS countries are very different — both in terms of their resources and in terms of their values and goals. The only thing they all have in common is, well, membership of BRICS. Brazil and India are democratic, China and Russia are not. Brazil and Russia export hydrocarbons, China and India are net importers. China and Russia are permanent members of the UN Security Council – the others are not. Structure of financial systems, levels of income, education, inequality, health challenges also differ substantially within BRICS. This is why it is very hard to speak with a unified voice and to co-ordinate action. The fact that BRICS have not really established anything tangible yet should not be a disappointment.

What could they do?

This problem of inaction will soon be overcome. BRICS now have a clear leader than can address the issue of internal differences in goals and resources. BRICS is quickly becoming a China-led club. Unlike 15 years ago, China’s nominal GDP is now larger than that of the other club members combined. The same its true with net international financial position, outward Foreign Direct Investment and development aid.

China’s leadership has finally turned the long-debated plan for a  “BRICS Bank” into a reality. The BRICS have founded the New Development Bank (NDB), which will become a major regional development bank – the first one without OECD-countries’ membership (unless of course Greece joins.)

The establishment of NDB (head-quartered in Shanghai) suggests international financial institutions should have been more flexible in adjusting their governance to accommodate the increased role of BRICS in the world. NDB is not likely – at least initially – to outperform existing development banks in terms of skills and project quality. However, it will be the first tangible multi-lateral project fully owned by the non-OECD countries – in a sense confirming that Jim O’Neill’s vision was correct.

However, the very fact that the only tangible BRICS project is NDB is also telling. NDB is taking off exactly because it fits into China’s grander New Silk Road or “One Belt, One Road” vision. NDB is in this sense proof that the BRICS club – like Shanghai Cooperation Organization – is now led by China. In summits, BRICS’ leaders will talk as equals but whenever BRICS is up to something real, it will be following China’s strategy.

XXX

The New Development Bank (NDB), formerly referred to as the BRICS Development Bank, is a multilateral development bank operated by the BRICS states. The bank's primary focus of lending will be infrastructure projects.

The BRICS Contingent Reserve Arrangement (CRA) is a framework for providing protection against global liquidity pressures. This includes currency issues where members' national currencies are being adversely affected by global financial pressures.

At the 2015 BRICS summit in Russia, ministers from BRICS nations, initiated consultations for a payment system that would be an alternative to the SWIFT system.

XXX

With an eye on a divided leadership in the West — as was evident in the recent G-7 summit — the BRICS leaders have committed with unprecedented emphasis to the principles of “democracy” and “multilateralism” in the Johannesburg declaration. Democracy is mentioned half-a-dozen times in the declaration, which, Indian government interlocutors feel, is noteworthy, since at least two member-countries in the grouping are socialist and non-democratic countries. In the Xiamen declaration, democracy was mentioned thrice, mostly in the context of a democratic global order.

Multilateralism was mentioned 23 times in the Johannesburg declaration, as against seven times in the Xiamen declaration last year. This assumes significance in the wake of the US, under President Donald Trump, acting unilaterally on several occasions — from the Israel-Palestine issue to Iran, and withdrawing from multilateral pacts like JCPOA and TPP. It has also withdrawn from UNESCO and 

UN Human Rights Council.

Indian interlocutors said that the seeping of democratic order, and the consequent democratisation of the BRICS order, has been an Indian imprint on the Johannesburg declaration, which is different from previous BRICS declarations. The emphasis on inclusivity has also increased in the Johannesburg declaration, as “inclusive” was mentioned 19 times, as compared to 9 times in the Xiamen declaration.

“These are the most important takeaways from the Indian point of view, that we have been able to put democracy and inclusiveness in the lexicon in a more pronounced manner,” one of the Indian interlocutors told The Indian Express. Sources said that the Chinese lexicon of a prosperous, shared future and win-win cooperation from previous SCO summits has now given way to a more Indian and South African lingo — of a representative world order approach.

The BRICS leadership has also given a message of solidarity and geopolitical maturity, officials privy to the negotiations told The Indian Express, as against the rancour and divisive tone in the G-7 summit.

Sources said that Prime Minister Narendra Modi discussed the above issues with Chinese President Xi Jinping and Russian President Vladimir Putin. Xi said that as major emerging market economies, as well as vindicators and contributors of the current international order, China and India should strengthen bilateral cooperation while exploring a new model for regional cooperation, upholding multilateralism, championing economic globalisation and striving for a more just and rational international order, Xinhua reported.

31 SIMULTANEOUS ELECTIONS IN INDIA - PROS & CONS

31 SIMULTANEOUS ELECTIONS

A.) Introduction: Meaning of Simultaneous Election

Simultaneous elections should imply that elections to all the three tiers of constitutional institutions (Lok Sabha, State Legislative Assembly and Local Bodies) take place in a synchronized and co-ordinated fashion. What this effectively means is that a voter casts his vote for electing members for all tiers of the Government on a single day.

B.) Reason for Supporting Simultaneous Election

The key adverse impacts that the existing electoral cycle leads to could be broadly categorized into the following:

1.       Impact on development programs and governance due to imposition of Model Code of Conduct by the Election Commission

2.       Frequent elections lead to massive expenditures by Government and other stakeholders

3.       Engagement of security forces for significantly prolonged periods

4.       Other Issues

a.       Frequent elections disrupt normal public life: Holding of political rallies disrupts road traffic and also leads to noise pollution.

b.      Frequent elections perpetuate caste, religion and communal issues across the country.

c.       Frequent elections adversely impact the focus of governance and policy making: Need to win the next impending election makes short-term political imperatives an immediate priority. As a result, sound long-term economic planning often takes a back seat.

C.) How it will violate basic principles of Constitution

Principle of Accountability:

1.       The legislature shall be accountable to elected representatives. Supporters of the measure often point to simultaneous elections until 1967. But it is often forgotten that those simultaneous elections were not constitutionally mandated; they occurred simultaneously only because historically, electoral competition with adult suffrage formally took off at the same time at the national and state level and for the first two decades, electoral mandates for national and state legislatures ordinarily remained stable (barring in Kerala). In other words, simultaneous elections were not a principle but a function of historical coincidence and initial political stability.

2.       The implication of simultaneous election would be that a government cannot be removed, however anti-people or under-performing it may be, or in spite of being hopelessly in a minority, if the Opposition is not united enough on an alternative to replace the existing ministry.

Role of President:

NITI Aayog mentions, if the mechanism of confidence vote fails and the Lok Sabha is to be prematurely dissolved, then, instead of fresh elections, if the period is short, the president can carry on the administration with advice from a council of ministers (which obviously does not have the support of the legislature). This would be the most blatant violation of the principle of responsible government and such a proposal is nothing short of rewriting the Constitution via a back door and bringing in of the provision of “president’s rule” at the national level. It would also accord to the president an unreasonably wide discretion of appointing such an interim, non-responsible government.

Constitutional Protection of 5 Year Tenure of an elected Legislature:

Three, if the legislature is to be inevitably dissolved with a larger portion of the five-year term still remaining, then it is suggested that fresh elections are held but the legislature shall not have the full five-year term; instead, it would have a truncated term that remained from the previous legislature’s term. This would jeopardise the constitutional protection that a legislature, once elected, gets a five-year term.

D.) Way Forward

Are there no other solutions avoid the key adverse impacts that the existing electoral cycle?

1.       If expenditure is an issue, that logic would finally take us to the argument that elections are expensive and hence problematic.

2.       If the interference of the model code of conduct is an issue, political parties need to impose self-regulation when in power and ensure that the boundaries between rightful and legitimate decision-making and wrongful advantage of positions of power to win votes are strictly and legally defined.

3.       If black (illegal) money is the problem, then it can hardly be addressed by this measure; changing both laws and practices involving electoral finance will be the best route to adopt. (660 Words)

XXX

Idea of One Nation, One Election has been repeated from various public platforms on a number of occasions. Four reasons are usually cited: massive expenditure; diversion of security and civil staff from primary duties; impact on governance due to the model code of conduct, and disruption to normal public life.

B.) Argument against it

Cost Factor: Elections cost 0.05% of India’s total expenditure: The Election Commission incurs a total cost of roughly Rs. 8,000 crore to conduct all State and federal elections in a span of five years, or roughly Rs. 1,500 crore every year. Nearly 600 million Indians vote in India’s elections, which means, it costs Rs. 27 per voter per year to keep India an electoral democracy. Is this a “massive” expense? To put this in context, all the States and the Centre combined incurred an expenditure of nearly Rs. 30 lakh crore in FY2014. Surely, 0.05% of India’s total annual expenditure is not a large price to pay for the pride of being the world’s largest and most vibrant electoral democracy. The notion that elections are prohibitively expensive is false and misleading.

Code of Conduct: The model code of conduct for elections was agreed to by political parties in 1979, and prohibits the ruling party from incurring capital expenditure for certain projects after elections are announced. If India is indeed embarking on a path of “cooperative federalism” as the Prime Minister also claims, then more such projects will be undertaken by each State and not by the Centre. So, why should elections in one State hinder governance in the rest of the States? And if all political parties still feel the need to reform the code, they are free to do so. The solution is to reform the code and not the electoral cycle.

Diversion of civil staff and disruption of public life were the two other reasons cited, but these sound more like reasons against holding elections in general. Surely, a disruption to public life twice in five years is not a binding constraint in the larger interests of interim accountability.

Voter Behaviour: There is clear empirical evidence that most Indian voters tend to choose the same party when elections are held simultaneously to both Centre and State, with the relationship diminishing as elections are held farther away.

Federal Political Autonomy: Further, simultaneous elections impinge on the political autonomy of States. Today, any elected State government can choose to dissolve its Assembly and call for fresh elections. If elections are to be held simultaneously, States will have to give up this power and wait for a national election schedule. There can be legitimate reasons for State governments to dissolve their Assemblies and call for fresh elections, as should be the case in Tamil Nadu. Under a simultaneous elections regime, the State will be beholden to the Union government for elections to its State, which goes against the very grain of political autonomy under our federal structure.

CITIZENSHIP LAWS – INDIA AND ASSAM

30 CITIZENSHIP LAWS – INDIA AND ASSAM

SIGNIFICANCE OF CITIZENSHIP

Citizenship defines the relationship of an individual with a political community, and signifies the individual’s full and equal membership of that community. A citizen is defined in opposition to an ‘alien’; the exclusion of aliens is central to the concept of modern citizenship. The Constitution gives some fundamental rights to non-citizens — the right to equality before the law (Article 14); protection of life and personal liberty (Article 21); freedom to manage religious affairs (Article 25), for example. However, some other fundamental rights, such as prohibition of discrimination on grounds of religion, race, caste, sex or place of birth (Article 15); equality of opportunity in matters of public employment (Article 16); and the six basic freedoms of speech and expression, peaceful assembly, forming associations or unions, movement, residence, and profession (subject to reasonable restrictions, Article 19), are available only to citizens. Also, only a citizen has the right to vote in elections to Lok Sabha and state Assemblies (Article 326), become a member of these Houses (Articles 84, 191d), and assume certain high offices such as those of President, Vice-President, Governor, and a judge of the higher judiciary.

PRINCIPLES OF CITIZENSHIP

Under the principle of jus soli (right of the soil), citizenship belongs to everyone born in the territory of a state. Jus sanguinis (right of blood), on the other hand, gives prominence to ties of blood in the grant of citizenship. 

CITIZENSHIP ARTICLES AND LAWS

Articles 5-11 of the Constitution describe the various categories of persons who are entitled to citizenship. These were enforced on November 26, 1949, ahead of the commencement of the Constitution on January 26, 1950. Article 11 empowers Parliament to regulate citizenship by law; the Citizenship Act was, therefore, passed in 1955. It has since been amended 1986, 2003, 2005, and 2015.

Article 5 provided for citizenship on the commencement of the Constitution: all those domiciled and born in India, either of whose parents was born in India, or anyone who had been ordinarily resident in India for at least five years preceding the commencement of the Constitution. Under Article 6, anyone who migrated to India before July 19, 1948, from territory that had become part Pakistan, automatically became a citizen if either of their parents or grandparents was born in India. But those who entered India after this date needed to register themselves. Those who had migrated to Pakistan after March 1, 1947, but had subsequently returned on resettlement permits, too, were included within the citizenship net (Article7). Under Article 8, a person of Indian origin residing outside India who, or any of whose parents or grandparents, was born in India can register as an Indian citizen with the relevant Indian diplomatic mission.

How did the situation in Assam impact the nature of citizenship?

To protect the social and cultural interests of the Assamese people, Parliament enacted The Immigrants (Expulsion from Assam) Act in 1950, under which the central government could order the removal of any person who had come into Assam from outside India, and whose “stay… in Assam is detrimental to the interests of the general public of India or of any section thereof or of any Scheduled Tribe in Assam”. However, the aftermath of the Partition of India, including the failure of the two-nation theory that was manifested in the birth of Bangladesh, and the nature of the topography and porous border in the east, saw continued largescale infiltration into Assam — which triggered an agitation in the state that ultimately led to the signing of the Assam Accord of August 15, 1985. The 1986 amendment to the Citizenship Act, 1955, inserted Section 6A under which all persons of Indian origin who had entered Assam before January 1, 1966 and been its ordinary residents were deemed to be Indian citizens; those who came after January 1, 1966, but before March 25, 1971, were to get citizenship upon registration at the expiry of 10 years after their detection as foreigner; and those who entered after March 25, 1971, upon identification under the Illegal Migrant (Determination by Tribunal) (IMDT) Act, 1983, were to be deported.

It was in 1966 that the atrocities in East Pakistan started, explains Hajela, triggering the exodus. On March 25, 1971, the Pakistan Army began operations in Dhaka, marking the start of the Bangladesh war. Presumably, people on the other side of the border would have no reason to flee once the liberation war actually started.

The 1986 amendment made the Citizenship Act less inclusive, by adding to the principle of jus soli the condition that in addition to one’s birth in India (for those born on or after July 1, 1987), at least one parent must be be an Indian citizen at the time of birth.

The 2003 took it closer towards jus sanguinis and away from jus soli — for those born after the commencement of the Act, not only was at least one parent required to be an Indian citizen, the other could not be an illegal migrant. In 2004, Parliament was told that as of 2001, there were 1.2 crore illegal immigrants in India, of whom 50 lakh were in Assam.

What are some of the cases linked to citizenship in Assam that have gone to the Supreme Court?

In 2005, a three-judge Bench led by Chief Justice of India R C Lahoti struck down the IMDT Act. It expressed concern over demographic change in Assam, and made references to “international Islamic fundamentalism” (Sarbananda Sonowal vs Union Of India & Anr, July 12, 2005; Sonowal, now Chief Minister of Assam, was then an Asom Gana Parishad MP). In 2007, the court quashed the Foreigners (Tribunals for Assam) Order, 2006, which put the onus of proving a person a foreigner on the complainant (Sonowal II, December 5, 2006). In Assam Sanmilita Mahasangha & Ors vs Union Of India & Ors, December 17, 2014, where the constitutionality of the 1986 amendment was challenged, the court referred the matter to a Constitution Bench.

What is the new proposed amendment to the Citizenship Act?

The Citizenship (Amendment) Bill, 2016, seeks to amend the 1955 Act to permit members of six communities — Hindu, Sikh, Buddhist, Jain, Parsi and Christian — from Pakistan, Bangladesh and Afghanistan eligible for citizenship if they had entered the country before December 14, 2014. Under the original Act, an applicant seeking citizenship by naturalisation must have resided in India during the last 12 months, and for 11 of the previous 14 years. The proposed Bill relaxes the 11-year requirement to six years for applicants belonging to these six religious communities and three countries.

Many organisations in Assam are up in arms against the proposed Bill, which they fear may trigger demographic change in Assam as illegal Bangladeshi Hindu migrants are granted citizenship. 

ASSAM NATIONAL REGISTER OF CITIZENS

29 ASSAM NATIONAL REGISTER OF CITIZENS

On Monday, Assam released the final draft of the National Register of Citizens (NRC), seven months after it released the first draft on 1 January 2018, which included 1.9 crore names out of a total applicant pool of 3.29 crore. Monday’s list however, left our 40.07 lakh people wherein 2.89 crore people were found eligible out of 3.29 crore applicants.

What is the NRC?

During the census of 1951, a national citizen register was created that contained the details of every person by village. The data included name, age, father’s/husband’s name, houses or holdings belonging to them, means of livelihood and so on. These registers covered every person enumerated during census of 1951.

For a person’s name to be included in the updated NRC list of 2018, he/ she will have to furnish:

■ Existence of name in the legacy data: The legacy data is the collective list of the NRC data of 1951 and the electoral rolls up to midnight of 24 March 1971. This is the cutoff date in the Assam Accord of 1985, agreed upon by the Centre, the state and the All Assam Students’ Union, at the end of a six-year movement against migration from Bangladesh.

■ Proving linkage with the person whose name appears in the legacy data.

How is Assam different? Why a separate National Register of Citizens?

This is because of a history of migration. During British rule, Assam was merged with Bengal Presidency for administrative purpose. From 1826 to 1947, the British continuously brought migrant workers to Assam for cheap labour in tea plantations. Two major waves of migration came after British rule — first after Partition, from East Pakistan (now Bangladesh), and then in the aftermath of the liberation of Bangladesh in 1971. This eventually led to an agitation during 1979-85, led by the All Assam Students’ Union. It culminated in the 1985 Assam Accord signed with the Rajiv Gandhi government, under which illegal migrants were to be identified and deported. Clause 6A was inserted in the Citizenship Act with special provisions for Assam.

Why is the NRC being updated now?

Updating the NRC has been a decades-old demand, with various modalities and cut-off dates suggested over the years and many rounds of talks held.

Things began moving after a May 5, 2005, tripartite meeting among the Centre, Assam government and All Assam Students' Union. Chaired by then Prime Minister Manmohan Singh, the meeting decided to update the NRC.

The Supreme Court got involved in 2009 after an NGO, Assam Public Works, filed a writ petition for the deletion of illegal migrants' names from voter lists in Assam.

Pilot projects for updating the NRC started in two blocks (in Kamrup and Barpeta districts) in June 2010 but were stopped the following month because of law-and-order problems. In July 2011, the state government set up a cabinet subcommittee to simplify the procedure.

In May 2013, the apex court directed the Centre to finalise the modalities by July 16, 2013. In 2014, the court directed the government to resume updating the NRC and has since been monitoring the process.

Distribution and receipt of filled-in NRC application forms began in 2015. Acceptance of applications ended on August 31, 2015. The verification process started on September 1, 2015.

How is verification carried out?

The updating process started in May 2015 and ended on 31 August 2015. A total of 3.29 crore people applied through 68.31 lakh applications. The process of verification involved house-to-house field verification, determination of authenticity of documents, family tree investigations in order to rule out bogus claims of parenthood and linkages and separate hearings for married women.

Who all have been left out?

Out of the 40.07 lakh applicants who have been left out of the final draft NRC released, on Monday, 2.48 lakh applicants have been kept on hold including the D-Voters (doubtful voters who have been disenfranchised on account of failure to prove citizenship), descendants of D-voters and persons whose cases are pending before the foreigners tribunal. The state however, has not revealed the reason for keeping others on hold.

What next?

The process of filing claims and objections will start on 30 August, during which people whose names have been left out of the NRC Assam, can once again appeal to have their case reconsidered. Those left out are not yet being labelled as “foreigners” or being sent to detention centres. However, only those applicants who had submitted their applications in 2015 will be considered.

UPSC REVISION: DATA PROTECTION FRAMEWORK FOR INDIA

28 DATA PROTECTION FRAMEWORK

PRS BN Srikrishna White Paper on Data Protection Framework for India

Access to data is knowledge and knowledge is power. There are many players — both legitimate and unscrupulous — who want to lay their hands on this enormous power. Indians are set to become the world’s top data consumers. They deserve legislation that ensures comprehensive protection.

The Committee of Experts on a Data Protection Framework for India (Chair: Justice B. N. Srikrishna) released a white paper on November 27, 2017. The Committee was constituted in August 2017 to examine issues related to data protection, recommend methods to address them, and draft a data protection law. The objective was to ensure growth of the digital economy while keeping personal data of citizens secure and protected. The Committee sought comments on certain questions raised by it till December 31, 2017. It will draft a law for data protection in India based on the feedback it receives.

Principles: The Committee suggested that a framework to protect data in the country should be based on seven principles: (i) law should be flexible to take into account changing technologies, (ii) law must apply to both government and private sector entities, (iii) consent should be genuine, informed, and meaningful, (iv) processing of data should be minimal and only for the purpose for which it is sought, (v) entities controlling the data should be accountable for any data processing, (vi) enforcement of the data protection framework should be by a high powered statutory authority, and (vii) penalties should be adequate to discourage any wrongful acts.

The Personal Data Protection Bill, 2018

Positives

1.        It seeks to codify the relationship between individuals and firms/state institutions as one between “data principals” (whose information is collected) and “data fiduciaries” (those processing the data) so that privacy is safeguarded by design. This is akin to a contractual relationship that places obligations on the entities entrusted with data and who are obligated to seek the consent of the “principal” for the use of personal information. 

2.       committee has given users comprehensive rights of correction, updation, and data portability

3.       In many ways, the draft legislation mirrors the General Data Protection Regulation, the framework on data protection implemented in the European Union this May, in providing for “data principals” the rights to confirmation, correction of data, portability and “to be forgotten”, subject to procedure.

4.        It envisages the creation of a regulatory Data Protection Authority of India to protect the interests of “principals” and to monitor the implementation of the provisions of the enabling data protection legislation.

5.       On the positive side, the Bill has proposed stringent penalties in case of any violation or misuse of personal data by public or private entities.

6.       The thrust on creating an institutional structure for data protection is also a good move towards creating a framework for all stakeholders to be more responsible and build trust while dealing with personal data.

7.       The Bill also includes a generally inclusive and progressive list of sensitive personal data.

Negatives

1.       no clarity on ownership of data:  Telecom Regulatory Authority of India’s recommendations on data protection did a better job on this front by categorically stating that the user owns her data

2.       The other big worry is the exemptions allowed for processing of data by the the State. While the proposed legislation states that such exemptions can be given only when it’s necessary, it is vague and leaves it open to interpretation and potential misuse. 

3.       What makes this more ambiguous is that State agencies can process personal data of users, albeit subject to conditions, without any judicial oversight. The exemptions granted to state institutions from acquiring informed consent from principals or processing personal data in many cases appear to be too blanket, such as those pertaining to the “security of the state”. These are hold-all phrases, and checks are vital.

4.       To be fair, the committee has flagged concerns related to the need to gather user data for surveillance by intelligence agencies and has argued in favour of bringing a law to ensure oversight. But the proposed Bill has left out this crucial aspect of data protection. The report recommends a law to provide for “parliamentary oversight and judicial approval of non-consensual access to personal data”. Without such an enabling law, the exemptions provided in the bill will fall short of securing accountability from the state for activities such as dragnet surveillance.

5.       The draft Bill in fact gives sweeping powers to the Centre by allowing it to issue binding directions to the proposed Data Protection Authority.

6.       The proposal to restrict cross-border data flows and making it mandatory to store one serving copy of all personal data within India, could be counterproductive for Indian businesses. This could become a trade barrier and impact the thriving Indian business processing industry.