The Hindu Editorial Analysis | 23th July’19 | PDF Download

• On May 17, in a very short hearing, a three-judge Bench of the Supreme Court (the Chief Justie of India Ranjan Gogoi and Justices Deepak Gupta and Sanjiv Khanna) decided a batch of 15 petitions under the title Abdul Kuddus v Union of India. Innocuously framed as resolving a “perceived conflict” between two paragraphs of the Schedule to the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003, the judgment — little reported in the media — nonetheless had significant consequences for the ongoing events in Assam surrounding the preparation of the National Register of Citizens (“the NRC”).

Two parallel processes

• What was the issue in Abdul Kuddus? In short, it involved the status of an “opinion” rendered by a Foreigners Tribunal, as to the citizenship (or the lack thereof) of any individual. The issue arose because, in the State of Assam, there are two ongoing processes concerning the question of citizenship.
• The first includes proceedings before the Foreigners Tribunals, which have been established under an executive order of the Central government.
• The second is the NRC, a process overseen and driven by the Supreme Court. While nominally independent, both processes nonetheless bleed into each other, and have thus caused significant chaos and confusion for individuals who have found themselves on the wrong side of one or both.
• The petitioners in Abdul Kuddus argued that an opinion rendered by the Foreigners Tribunal had no greater sanctity than an executive order. Under the existing set of rules, this meant that an adverse finding against an individual would not automatically result in their name being struck off the NRC. Furthermore, the Tribunal’s opinion could be subsequently reviewed, if fresh materials came to light. This was particularly important because, as had been observed repeatedly, citizenship proceedings were riddled with administrative (and other kinds of) errors, which often came to light much later, and often by chance. And finally, the petitioners argued that if the opinion of the Foreigners Tribunal was used to justify keeping an individual out of the NRC, then that decision could be challenged and would have to be decided independently of the decision arrived at by the Tribunal.
• In short, the petitioners’ case was that the two processes — that of the Foreigners Tribunal and of the NRC — should be kept entirely independent of each other, and without according primacy to one over the other.
• Flawed tribunals
• The Supreme Court rejected the petitioners’ arguments, and held that the “opinion” of the Foreigners Tribunal was to be treated as a “quasi-judicial order”, and was therefore final and binding on all parties including upon the preparation of the NRC. There are, however, serious problems with this holding, which will severely impact the rights of millions of individuals.
• To start with, neither in their form nor in their functioning do Foreigners’ Tribunals even remotely resemble what we normally understand as “courts”.
• First, Foreigners Tribunals were established by a simple executive order. Second, qualifications to serve on the Tribunals have been progressively loosened and the vague requirement of “judicial experience” has now been expanded to include bureaucrats. And perhaps, most importantly, under the Order in question (as it was amended in 2012), Tribunals are given sweeping powers to refuse examination of witnesses if in their opinion it is for “vexatious” purposes, bound to accept evidence produced by the police, and, most glaringly, not required to provide reasons for their findings, “… as it is not a judgment; a concise statement of the facts and the conclusion will suffice” (although the Court, as an offhand remark, also added “reasons” to “facts” and “conclusions”). Subject to provisions of this manner, Tribunals are left free to “regulate [their] own procedure for disposal of cases.”
• Unsurprisingly, over the last few months, glaring flaws in the working of the Foreigners Tribunals have come to light. Questions in Parliament showed that as many as 64,000 people have been declared non-citizens in ex-parte proceedings, i.e., without being heard.
• Testimonies reveal these people are often not even served notices telling them that they have been summoned to appear. Alarmingly, an investigative media report featured testimony by a former Tribunal member who stated that his compatriots competed to be what was jokingly referred to as “the highest wicket-taker”, i.e. the one who could declare the highest number of individuals “foreigners”.
• When adjudicating upon a person’s citizenship — a determination that can have the drastic and severe result of rendering a human being stateless — only the highest standards of adjudication can ever be morally or ethically justifiable. But in further strengthening an institution — the Foreigners Tribunal — that by design and by practice manifestly exhibits the exact opposite of this principle, the Supreme Court failed to fulfil its duty as the last protector of human rights under the Constitution.
• Unwelcome departure
• The Court attempted to justify this by observing that “fixing time limits and recording of an order rather than a judgment is to ensure that these cases are disposed of expeditiously and in a time bound manner”. This, however, is the reasoning of a company CEO, not that of the highest Court of the land, adjudicating upon a matter that involves the rights of millions of people. When the stakes are so high, when the consequences entail rendering people stateless, then to allow such departures from the most basic principles of the rule of law is morally grotesque.
• The Court’s observations in the Kuddus case, and indeed, the manner in which it has conducted the NRC process over the last few months, can be traced back to two judgments delivered in the mid-2000s, known as Sarbananda Sonowal I and II. In those judgments, relying upon unvetted and unreviewed literature, without any detailed consideration of factual evidence, and in rhetoric more reminiscent of populist demagogues than constitutional courts, the Court declared immigration to be tantamount to “external aggression” upon the country; more specifically, it made the astonishing finding that constitutionally, the burden of proving citizenship would always lie upon the person who was accused of being a non-citizen. A parliamentary legislation that sought to place the burden upon the state was struck down as being unconstitutional.
• What the rhetoric and the holdings of the Sonowal judgments have created is a climate in which the dominant principle is the presumption of non-citizenship. Apart from the absurdity of imposing such a rule in a country that already has a vast number of marginalised and disenfranchised people, it is this fundamental dehumanisation and devaluation of individuals that has enabled the manner in which the Foreigners Tribunals operate, the many tragedies that come to light every week in the context of the NRC, and judgments such as Abdul Kuddus. It is clear that if Article 21 of the Constitution, the right to life, is to mean anything at all, this entire jurisprudence must be reconsidered, root and branch.
• With recent reports of several Administrative follies in NRC process, the possible situation for many people being as stateless, do you see this possibility ? if yes then what kind of crisis can unfold in near future and give points of resolution.
• And if no then how to see the situation in the light of citizenship being a very sensitive issue. (300 words)
• A chapter in the recent Economic Survey on the “transformational” impact of Aadhaar on the Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA) merits scrutiny. It presents a skewed and unbalanced view of the programme’s technical interventions instead of taking a comprehensive view of the implementation. The Survey draws heavily from the Indian School of Business’s working paper titled “A Friend Indeed: Does The Use of Digital Identity Make Welfare Programs Truly Counter-Cyclical?”
• A rebuttal of this working paper, published in November 2018, highlighted glaring flaws on three counts — factual, methodological and conceptual. Yet the paper has been uncritically accepted and widely cited in the Survey. This raises questions about the credibility of the Chief Economic Adviser’s (an affiliate of the ISB) office. Here are six reasons why the Economic Survey’s presentation of the MGNREGA is misleading.
• Aadhaar has to be understood as merely being a pipeline for funds transfer in the MGNREGA. A lack of adequate financial allocation, pending liabilities and low wages have dogged the programme over the past eight years. About 20% of the Budget allocation in each of the last five years is of pending wage liabilities from previous years. It was worst in 2016-17, when pending liabilities were 35% (₹13,220 crore) out of a total allocation of ₹38,500 crore.
• MGNREGA wages in many States are about 40% lower than the Ministry of Labour’s national minimum wage. Instead of sufficiently funding MGNREGA, a legal right, in times of severe drought, there is disproportionate attention by the government towards creating a complex architecture based on technical solutions.
• Technological inputs
• Second, the Economic Survey misrepresents the continuous technological interventions in the MGNREGA since its inception. Electronic funds transfer started as far back as in 2011 through the Electronic Fund Management System (eFMS), and became symbolic of the Direct Benefit Transfers (DBT). This served as the basis for the National Electronic Fund Management System (N-eFMS), introduced, in 2016.
• The Survey uses the term “ALP” for Aadhaar-linked payments and conflates it with the DBT by repeatedly referring to the time before 2015 as “pre-DBT” to make its claims. The conflation of terms prevents one from making an honest assessment on the effect that different interventions have had.
• Third, the Survey makes strong assertions that timely payment of wages have positively impacted worker participation. To support this, the Survey makes dubious causal claims on reduction in payment delays due to the introduction of Aadhaar. However, their understanding of payment delays is faulty.
• Wage payments to MGNREGA workers happen in two stages. The first is the time taken by the blocks to generate the electronic Funds Transfer Orders (FTO) and send it digitally to the Central government. The second is the time taken by the Central government to process these FTOs and transfer wages to workers’ accounts. While it is true that delays in the first stage have reduced, those in the second stage continue to be unacceptably high. Only about 30% of the payments are credited on time; the Central government takes more than than 50 days (which is the second stage) to transfer wages to workers.
• The Survey only considers the delays in the first stage. Aadhaar has no role in reducing the delays in the first stage but comes into play only in the second stage. Therefore the claim in the Survey that the “ALP has positively impacted the flow of payments under the scheme” is a manipulation of facts.
• Fourth, the Survey attributes an increase in demand for and supply of work in drought-affected areas to Aadhaar ignoring other crucial factors. For instance, it ignores the Supreme Court’s orders on drought (Swaraj Abhiyan vs. Union of India (2015), which coincided with the duration of the working paper’s analysis. Taking cognizance of the Court’s orders and continuing monitoring, the Ministry of Rural Development issued strict directives (between 2014 and 2017) to ensure allocation of works and on-time payment of wages.
• These judicial-administrative directives, which came into effect after Aadhaar was introduced, played an important role in the increase in the MGNREGA work uptake in drought areas. Not accounting for the Court’s orders as a contributing factor in their “causal” analysis makes their findings unreliable. In fact, in Rajasthan, under the new State government, the ‘work demand’ campaign initiated in December 2018 has resulted in a 67% increase in employment generated and a record number of households having completed 100 days of work under the MGNREGA. There is a three-fold increase in employment generation in Karnataka in 2019 compared to 2018. This demonstrates how political and administrative priorities can have a strong positive impact on the programme.
• Fifth, while the Survey rightfully acknowledges the nature of positive targeting of the MGNREGA — with women, Dalits and Adivasis benefitting the most — it wrongfully attributes it wholly to the introduction of Aadhaar. The argument denies the unambiguous impact of the universal access of the MGNREGA without having to meet any eligibility criteria. It is disappointing that in independent India, an official document on the state of the economy compares a constitutionally backed legal guarantee to the largesse of feudal kings. This should have been expected as the Survey misses the point that the programme was introduced as a legal right and not as an act of charity. Indeed, to this end, the Minister for Rural Development recently made an odd comment: “I am not in favour of continuing with MNREGA because it is for the poor and the government wants to eradicate poverty.”
• Sixth, the Survey’s claims about the ALP identifying “ghost beneficiaries” is exaggerated as an RTI query showed that they accounted for only about 1.4% of total households in 2016-17.

Violation of rights

• The technology historian, Melvin Kranzberg, wrote, “Technology is neither good nor bad; nor is it neutral.” It is telling that the Survey completely ignores numerous instances where technology has resulted in violation of workers’ rights under the MGNREGA — some examples are not registering work demand, not paying unemployment allowance and compensation for payment delays among others.
• In fact, another ISB study, not cited in the Economic Survey shows that 38% of the Aadhaar-based transactions in Jharkhand were diverted to a different account. Overlooking these fundamental issues, cherry-picking studies and using flawed analyses to justify technocracy is an example of ethical paralysis. While the Economic Survey harps about an ill-designed technological pipeline, the fact is that a landmark labour programme is being put on a ventilator.
• The National Human Rights Commission (NHRC) of India is a Statutory public body constituted on 12 October 1993 under the Protection of Human Rights Ordinance of 28 September 1993. It was given a statutory basis by the Protection of Human Rights Act, 1993 (TPHRA).
• The NHRC is the National Human Rights Commission of India, responsible for the protection and promotion of human rights, defined by the Act as “Rights Relating To Life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants”.
• The Protection of Human Rights Act mandates the NHRC to perform the following functions:
• proactively or reactively inquire into violations of government of India human rights or negligence in the prevention of such violation by a public servant
• by leave of the court, to intervene in court proceeding relating to human rights
• make recommendations about granting relief to the victims and their families.
• review the safeguards provided by or under the Constitution or any law for the time being in force for the protection of human rights and recommend measures for their effective implementation
• review the factors, including acts of terrorism that inhibit the enjoyment of human rights and recommend appropriate remedial measures
• to study treaties and other international instruments on human rights and make recommendations for their effective implementation
• undertake and promote research in the field of human rights
• engage in human rights education among various sections of society and promote awareness of the safeguards available for the protection of these rights through publications, the media, seminars and other available means
• encourage the efforts of NGOs and institutions congress to working in the field of human rights.
• such other function as it may consider it necessary for the protection of human rights.
• requisitioning any public record or copy thereof from any court or office.
• The NHRC consists of:
• A Chairperson, should be retired [Chief Justice of India or a judge of the Supreme Court] (through GoI mulling appointment of retired SC Judges as chairperson)
• One member who is, or has been, a Judge of the Supreme Court of India
• One member who is, or has been, the Chief Justice of a High Court
• Three members to be appointed from among persons having knowledge of, or practical experience in, matters relating to human rights, one of which is to be a woman.
• In addition, the Chairpersons of four National Commissions (Scheduled Castes, Scheduled Tribes, Women and Minorities) serve as ex officio members.
• The sitting Judge of the Supreme Court or sitting Chief Justice of any High Court can be appointed only after the consultation with the Chief Justice of Supreme Court.

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