The question that needs an answer

Last week the Republic said something true about itself, and the nation recoiled. The Ministry of External Affairs clarified on Passport Seva Divas that a passport is a travel document and not a document of citizenship. The statement was legally unimpeachable. It also exposed a question India has never fully answered. Let us start with the law because the law is not in dispute.

The Passports Act of 1967 governs the issuance of passports and the Citizenship Act of 1955 governs the acquisition and loss of citizenship. While the former regulates a document, the latter determines a status. The courts have consistently considered a passport to be good prima facie evidence that its holder is Indian but never as conclusive proof. Last August, the Bombay High Court iterated that citizenship cannot be established solely through a passport, Aadhaar or voter card. Citizenship, it ruled, is determined under the Citizenship Act. On paper, the ministry merely restated settled doctrine. So why the alarm? The law was settled but the uncertainty was not. Supporters of the clarification dismissed the controversy as a reaction to “old law”.

Advertisement

Critics feared that the same principle, applied carelessly, could place ordinary citizens at risk. Both sides missed the deeper question. Most Indians were not debating doctrine but asking something more fundamental. If the document that carries the Republic’s authority across borders does not prove you belong to it, then what does? The real problem is not legal ambiguity but the absence of a clear answer. Every democracy has the right to maintain accurate electoral rolls and remove the dead, the duplicated and the genuinely ineligible. A State has the right to establish its nationality and to take action against fraud. The question is narrower and harder.

When the state does ask for proof of citizenship, what can a citizen actually produce? Consider the documents most Indians carry. Aadhaar expressly does not establish citizenship or domicile. Voter ID proves inclusion on an electoral roll, not nationality. PAN is a tax identifier and can be issued to foreign nationals. Ration cards establish eligibility for welfare benefits and driving licenses establish residence and skill. A citizen may possess multiple state -issued documents and still be unable to conclusively establish the status on which all other rights depend. What then counts?

In law, only a limited set of documents: a citizenship certificate, proof of descent from an Indian citizen, or in some cases a birth certificate. Now another challenge starts. Citizenship by birth has changed over time. Those born between 1950 and 1987 are citizens by birth. After 1987, at least one parent had to be an Indian citizen. After 2004, additional conditions were imposed. The consequence is profound. For many Indians, proving citizenship increasingly requires proving the citizenship of their parents, who may in turn have to prove their own. It is here that an exact law collides with an inexact reality. Under Section 9 of the Foreigners Act, 1946, once a credible doubt is raised, the burden falls on the individual to establish that she is not a foreigner.

The problem lies in the evidence. Millions were born when registration was patchy, records incomplete and names inconsistently recorded. The law often assumes an archive that never existed. We have already se en the consequences. Assam’s NRC exercise excluded 19 lakh people in 2019. Among them were individuals whose names appeared in historical records and who had participated in public life for decades. Families were divided over documentary discrepancies. A decorated soldier had to approach the courts to establish that he was Indian. Assam is less a verdict on intent than a warning about documentary systems under stress. The warning is relevant today as the ministry did not speak into empty air.

It was answering a question about whether a passport could keep a voter on the rolls during the Special Intensive Revision. The Revision requires the citizen to trace her name (or a parent’s) back to a roll that was made many years ago. It has a valid reason for cleaning and updating the register. The difficulty is the same as that which pervades this whole subject. It requires individuals to record a status that the state has not certified. In Bihar, about forty-seven lakh names were struck off in the first round, including names of the deceased and the migrated names, although there were also some names that were disputed. In May, the Supreme Court upheld the exercise.

It also made an observation worth holding on to. The Court observed that inclusion in an electoral roll creates a presumption, not an irrebuttable fact. The burden of reopening citizenship claims falls hardest on the weakest citizens. This is the unresolved contradiction. The state is able to verify someone sufficiently to issue a passport. It sends her abroad as it’s national. Foreign governments admit her on its word. However, the same verification is not, in law, a final determination of her belonging. This is not being malicious but a task that hasn’t been accomplished. A republic can protect itself from fraud but it should not make belonging forever contingent.

So, for the poorest the honest answer to the question ‘Are you a citizen?’, is ‘it depends upon what you can produce today’. Citizenship, according to Hannah Arendt, is the right to have rights. Strip a person of it and every other guarantee, to speech, to property, to liberty itself, becomes a courtesy that can be withdrawn. That’s why the gap is not a clerical issue but a constitutional one. Other democracies closed it long ago, not trusting documents, but constructing one. A universal and clean civil register. All births were recorded with no exceptions in records that outlive memory. India never finished that work, and no government, of any par ty, has ever completed it .

Statelessness, thus, doesn’t come as a command. Rather, it’s more frequently in a form that isn’t fillable. The cure is unshowy in the form of Universal birth registration and honest-durable archives. And, someday, one document that explicitly declares citizenship, so that nationality never again hangs on a missing page or a misspelt name. If a state can find a person to tax her, and enrol her, and record her data, she can be found by them to confirm that she is its own. None of this is a weakening of the law but completing it. Until then the ministry’s honesty stands. The passport is a travel document and there are tougher truths to be found underneath.

In the Republic of India, the concept of citizenship continues to lack its own document and a right that can’t be proven is, after all, a right that’s based on trust. So, ask yourself the question that was posed to us all. Are you a citizen of India? Then go to the more difficult one. Could you prove it to someone who had reason to doubt you, if you were asked to? For a great many Indians that is not an abstraction. Their situation in the Republic could become a question they will have to answer.

(The writers are, respectively, Assistant Professor, Aryabhatta College, University of Delhi, and an Advocate, Delhi High Court)