The National Population Register, commonly known as the NPR, is a strange legal beast. Distinct from the National Register of Citizens or NRC that the Bharatiya Janata Party government has promised to institute, the NPR traces its origins to the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003, which were drafted under the Citizenship Act, 1955. It is to form the basis of the NRC.
Despite being created under the Citizenship Act, the NPR is designed in a manner that requires it to rely on the administrative machinery created under the Census Act, 1948. The Director of Citizen Registration as per Rule 2(d) under the Citizenship Rules, 2003, is the Director of Census, as appointed under the Census Act, 1948.
Given the costs of a nationwide door-to-door enumeration exercise, it is no surprise that the government is carrying out the Census and the NPR together. It is, however, doubtful whether this is legal. As per Section 15 of the Census Act, there is a prohibition on making public the data collected by any Census official. There is also an express prohibition against the use of any data collected under the Census Act, for any civil or criminal proceedings. To that extent, the data collected under the Census Act is privileged and is meant to be used only for statistical compilation for the purposes of governance. The text of the provision is reproduced below:
“15. Records of census not open to inspection of admissible in evidence. – No person shall have a right to inspect any book, register or record made by a census-officer in the discharge of his duty as such, or any schedule delivered under section 10 and notwithstanding anything to the contrary in the Indian Evidence Act, 1872 (1 of 1872), no entry in any such book, register, record or schedule shall be admissible as evidence in any civil proceeding whatsoever or in any criminal proceeding other than a prosecution under this Act or any other law for any act or omission which constitutes an offence under this Act.”
The likely rationale for this provision is the recognition by the drafters of the Census Act that citizens may be more forthcoming with information for the Census if there is a legal assurance that the data can not be used against them by the government. Alternatively, it is likely that the drafters knew that a big-data exercise like the Census was bound to be messy, sometimes generating inaccurate data that lacked the credibility to be used as evidence in legal proceedings. Or perhaps, the provision was in the nature of a data protection law ahead of its time.
Whatever its rationale, the legal prohibition contained in Section 15 of the Census Act applies to the Director of Census, whether he is collecting data for the Census or the NPR. The Census Act makes no exceptions. The implication of this provision for the NPR is that none of the data collected by the Director of Census, in his role as the Director of Citizenship Registration, can be used as the basis of any proceedings to prepare the National Register of Indian Citizens and issue identity cards to each citizen. This is because the process of NPR verification to create the NRC will be considered a civil proceeding.
The government could amend the Citizenship Rules, 2003, to delink the NRC and NPR from the Census by having officers other than those under the Census Act carry out the data collection, but that will have cost implications. It would mean making a new demand of grants to the Parliament, scrutiny by parliamentary committees and voting on appropriation bills.
Further, an amendment of this nature to the Rules will technically not save the data that has already been collected. Alternatively, the government could try amending Section 15 of the Census Act but that is perhaps more difficult because any amendment will have to be approved by both the Rajya Sabha and Lok Sabha. The government cannot take the money bill route.
However, given the quality of judicial review that we are seeing these days from the courts, it is entirely possible that Section 15 will be ignored by our judges and the government will be allowed to continue with data collection for both the Census and the NPR.
Prashant Reddy is an advocate.