Values of the Constitution under ambiguous laws

Paper: II

For Prelims: NPR, NRC.

For Mains: Government Policies and Interventions for Development in various sectors and Issues arising out of their Design and Implementation.

Context of News:

  • Ever since the becoming of the constitutional amendment law and NRC in the pipeline ,there is continuous agitation against these both law which also raises the question about the role of judiciary in delivering the mechanism of ensuring peaceful environment for citizenry.

About NPR (National Population Register):

  • The National Population Register (NPR) is a Register of usual residents of the country. A usual resident is defined for the purposes of NPR as a person who has resided in a local area for the past 6 months or more or a person who intends to reside in that area for the next 6 months or more.
  • The National Population Register (NPR) is a database of the identities of all Indian residents. The data for the creation of the NPR was collected during the General Census carried out between April and September 2010 in last census and is carried out on regular basis. The database is maintained by the Registrar General and Census Commissioner of India.

About NRC (National Register of Citizenship):

  • The National Register of Citizens (NRC) is the register containing names of Indian Citizens. The only time that a National Register of Citizens (NRC) was prepared was in 1951 when after the conduct of the Census of 1951, the NRC was prepared by recording particulars of all the persons enumerated during that Census.
  • Who is a citizen of India?

As per the Citizenship Act, 1955, every person born in India:

(a) On or after the 26th day of January 1950, but before the 1st day of July 1987;

(b) On or after the 1st day of July 1987, but before the commencement of the Citizenship (Amendment) Act, 2003 and either of whose parents is a citizen of India at the time of his birth;

(c) On or after the commencement of the Citizenship (Amendment) Act, 2003, where-

(i) Both of his parents are citizens of India; or

(ii) One of whose parents is a citizen of India and the other is not an illegal migrant at the time of his birth, shall be a citizen of India by birth.

Concerns Related to Citizenship Amendment Act:

  • On the Mercy of Particular Entity:
  • Under the Foreigners Tribunal (Amendment) Order, 2019, the power to refer a suspected foreigner to a tribunal has been delegated to DMs. Those excluded will be left at the mercy of the quasi-judicial Foreigners Tribunals, to be set up across the country, the constitutionality and functioning of which in Assam have raised many questions. Its members have no judicial experience and are appointed on a yearly basis. Their extension depends on how many persons they have declared as foreigners. Their proceedings are rather arbitrary.
  • Flawed Mechanism:
  • The nationwide NRC is an amplification of the very flawed and inhuman process adopted in creating a NRC in Assam. In Assam, persons were asked to apply with documentary evidence of their birth, land ownership, school degrees, as well as documents to establish their ancestry from 1950 onwards.
  • Many people, especially the poor, did not have such documents. Others had to spend enormous sums of money to collect such documents from offices of various registrars and issuing authorities. A lot of people lost their life savings in this process and many were still excluded because of minor discrepancies in the spellings of their names in different documents. The exercise spawned an enormous humanitarian crisis.
  • Cure worse than Disease:
  • The cost of preparing the NRC in Assam was approximately Rs 400 per person. A pan India exercise of that kind would cost over Rs 50,000 crore. The expense for people in procuring the documents required for inclusion in the NRC would be many times over. This at a time when the country is reeling under the highest unemployment in the last 40 years.
  • In sum, the process for declaring persons as non-citizens through the NPR and NRIC is arbitrary and inhuman. It will come at an enormous cost to the poorest in our country who will be left to wade through complex procedures, having to scramble for documents, and still be left out. They would then face the prospect of being in detention centres.

Way Forward:

  • Though agitation in the country has been sparked off by the passing of the communal and discriminatory CAA, a far more serious malaise lies behind the NRIC and the NPR. Many peaceful protestors and even those who were not protesting have been arrested and charged. Shops of people unconnected with any violence have been sealed on the grounds that these people have destroyed public property. All this is totally illegal.
  • In such circumstances, it is the duty of the judiciary to step in against this brutal suppression of peaceful protests. However, we are yet to see any effective and strong action by the judiciary. The constitutional validity of the CAA has also been challenged in the Supreme Court. We hope that these petitions will be heard soon and the Court will rise to defend constitutional values and strike down this blatantly unconstitutional law. While the continuation of the protests is important, it is even more important that they remain non-violent, despite attempts to provoke violence.

 


A conundrum of Public order or Justice

Paper: II

For Prelims: Right to Internet.

For Mains: Government Policies and Interventions for Development in various sectors and Issues arising out of their Design and Implementation.

Context of News:

  • Recently the Supreme Court gave its much-awaited judgment on the legality of the telecommunications and Internet shutdown orders in Jammu and Kashmir (J&K), in place for more than 160 days as of now in the valley.

Right to Internet:

  • The Kerala High Court last year, while delivering its judgement on not adhering to restrictions on the use of mobile phone. As per the rules of the girls’ hostel, inmates were restrained from using mobile phones from 6 p.m. to 10 p.m. every day held that the right to have access to the Internet is part of the fundamental right to education as well as the right to privacy under Article 21 of the Constitution.
  • The court observed, “When the Human Rights Council of the United Nations has found that the right of access to Internet is a fundamental freedom and a tool to ensure right to education, a rule or instruction which impairs the said right of the students cannot be permitted to stand in the eye of law.
  • Kerala High court while citing the observations of the Supreme Court in the S.Rengarajan and others v. P. Jagjivan Ram (1989) case said “ the fundamental freedom under Article 19(1)(a) can be reasonably restricted only for the purposes mentioned in Article 19(2) and the restriction must be justified on the anvil of necessity and not the quicksand of convenience or expediency.

About supreme court Judgement:

  • Supreme Court said that access to the Internet is a fundamental right under Article 19 of the Constitution, and asked the Jammu and Kashmir administration to review within a week all orders imposing curbs in the Union Territory.
  • A five-judge bench headed by Justice NV Ramana also asked the Jammu and Kashmir administration to restore Internet services in institutions providing essential services like hospitals and educational places.
  • The verdict came on a batch of pleas which challenged curbs imposed in Jammu and Kashmir after the Centre’s abrogation of provisions of Article 370 on August 5 last year. These batch of pleas were different from another set of petitions which challenge constitutional validity of abrogation of Article 370, being heard by a five-judge Constitution bench.
  • The three-judge bench also said Section 144 CrPC (prohibitory orders) cannot be used indefinitely to suppress freedom of speech and expression and difference of opinion.
  • The bench said access to Internet is a fundamental right under Article 19 of the Constitution, subject to some restrictions and said freedom of press is a valuable and sacred right. It said magistrates, while passing prohibitory orders, should apply their mind and follow doctrine of proportionality.

Why Internet Ban is violation of Basic Rights of Humanity?

  • Violation of Freedom of Speech and Expression:
  • People have the same rights online as well as offline, “in particular freedom of expression, which is applicable regardless of frontiers and through any media of one’s choice”.
  • States are accountable for violations enacted against people for making their views known online are “condemned unequivocally”.
  • Any measures to “intentionally prevent or disrupt access” to internet are “condemned unequivocally,” and all states should “refrain from and cease such measures”.
  • Against the Economic Growth:
  • Access to internet has major thrust on the increasing economic growth of the country. Access to the internet rejuvenates the entire value chain of the economy by increasing the incorporation of various contributing stakeholders. The internet is a tremendous, undisputed force for economic growth and social change.

Way Forward:

  • Internet shutdown and information and communication technologies do not have a role to play in international development. We do have a responsibility to ensure that, when so much is at stake like of internal security and ensuring public order, more of our interventions should be grounded in a solid evidence base by looking through the world’s economic margins point of view.
  • At, today’s world order when we are moving towards borderless world, banning internet should be in proportion looking at the necessity and the urgency it required at that moment.