Interview with Ravi Hemadri

Ravi Hemadri is Founder and Head of Development and Justice Initiative (‘DAJI’), a public charitable trust working on issues of justice, human rights, and dignity for marginalized communities, with a particular focus on urban migrant workers, refugees, internally displaced people, stateless persons, and Indigenous peoples. He has over two decades of experience in research and advocacy on the rights of Adivasis, Dalits, women, migrants, and refugees. He was also one of the advisors on the Securing Citizenship report.

The following questions were formulated with the help of Devashri Mishra and Aashish Yadav. This interview was conducted over an audio call and has been edited for length and clarity. 

Arunima Nair: What is the situation of the Rohingya refugees in India, and the socio-economic deprivations that they are faced with? How have they been affected due to the Covid-19 pandemic?

Ravi Hemadri: My organization DAJI has worked with the Rohingya since 2012, and has conducted mapping exercises with the UN High Commissioner for Refugees (‘UNHCR’) including on child protection issues etc. We’ve also conducted research with other agencies such as the Danish Refugee Council and the Asia-Pacific Refugee Rights Network. As part of this network and the Statelessness Network Asia Pacific (‘SNAP’), we’re also aware of situation of the Rohingya in Myanmar, Malaysia, Bangladesh etc.

In India, the Rohingya are the worst off among all other refugee groups. They are under UNHCR protection and care, unlike the Sri Lankans and Tibetans who are given refugee cards directly by the Home Ministry. Typically all other categories of refugees—like the Afghans and all the Myanmar refugees—fall under the ambit of the UNHCR. These categories of refugees have a precarious legal status, because UNHCR cards have uncertain legal validity. These cards are accepted by the law enforcement agencies as a customary practice. The UNHCR card gives some protection against detention since it’s a UN issued card. However, in the context of the 2017 campaign launched against the Rohingya in Jammu and other places, a junior Minister in the MHA stated on the record that UNHCR cards are not valid. That puts the Rohingya and other refugees under the mandate of UNHCR in a very precarious situation. Initially, when the whole Aadhaar scheme was launched, it was for all residents including foreigners (i.e. any foreigner who had continuously stayed in India for 180 days) which was a good start – several refugees did get Aadhaar cards, but then the Police took away the Aadhaar cards that many refugees had in 2017. The Government also has the Long Term Visa (‘LTV’) facility – anyone who has stayed in the country for a long time can get an LTV, and several Rohingya had also got LTVs in Hyderabad, Delhi, Jaipur etc., but a huge issue was created in Parliament along with the 2017 campaign against them in Jammu etc., and then the Government stopped issuing LTVs to Rohingyas.

AN: Is this lack of legal validity of UNHCR cards common across South Asia – presumably stemming from the fact that no country in South Asia has signed any refugee or statelessness conventions?

RH: The Rohingya are also the least skilled of all refugee groups who’ve come into India. The Afghans, for example, are comparatively better-educated and better skilled, with many engineers, doctors etc. among them. The Rohingya as the least educated and least skilled need the most support, but they have the least support from the Government. The UNHCR operates in India under a wider mandate between the Government of India and the United Nations Development Program (‘UNDP’). The only formal collaboration the UNHCR has with the Government is with respect to the repatriation of Sri Lankan refugees to Sri Lanka. UNHCR India facilitates the repatriation of refugees to Sri Lanka.

The term refugee is undefined in Indian law – they are treated as any foreigner, they’re also subject to detention when they enter India ‘illegally’ in West Bengal, Assam, Manipur etc. At least 300 Rohingya are in detention, including 70 children in these border states.

AN: Are the children separated from their families?

RH: As far as I know, till the age of 6, they’re allowed to be with their mothers, after that the boys are separated and sent to children’s homes and the girls are allowed to remain with their mothers up till 10 years. So a lot of children are separated—when they migrate across the border, many times those who are able to cross into India and those who are detained are fragmented families. Once they reach Delhi and get the refugee card, they are relatively safe from detention, but if caught in these border states, particularly without valid UNHCR cards, they are detained.

Since Rohingya are traditionally farmers, cultivators fisherman etc. in Myanmar, they don’t have any urban skills, and so most of them go to professions requiring the least skill, which is picking up recyclable waste in cities – 70% of Rohingyas in India are involved in rag picking. Because of that their income levels are very low. In Jammu, several used to work in cinema theatres, hotels, pharmacies etc. – but since the misinformation campaign started, these establishments started asking for Aadhaar cards etc., so they lost this kind of semi-formal employment. So definitely, the precarious legal status of all refugees, coupled with xenophobia particularly in the case of the Rohingya, have a deep impact on their socio-economic condition.

In COVID-19, they have been severely impacted in a similar way to other migrant workers – in the sense that they lost their jobs due to the strict imposition of lockdown, with no way of finding alternate employment, and in general as has happened with all workers, the employers have taken this opportunity to cut down salaries. In the Tablighi Jamaat incident in April, some Rohingya refugees from Mewat were part of the congregation. Some four of them were arrested and put in isolation for a month.

The Rohingya community in Myanmar has dispersed all across Asia and South-East Asia. You are right when you say that in South Asia and South-East Asia, except for Afghanistan, none have signed the refugee conventions.

India’s policy has always been ad-hoc: it has changed based on the diplomatic relations between the country of origin and India. When the whole student uprising started in Myanmar against the military in 1988, India gave the International Award to Aung San Suu Kyi. 1988 was when the Burmese activists started coming to India and taking refuge, there were camps set up to receive them in Mizoram etc. That slowly faded as relations between India and Myanmar grew, both economic and military. Even with the Rohingya, initially they gained visibility since 2012, when they put up a demonstration, because prior to that they were only being given asylum seeker cards and not refugee cards. Questions were raised in Parliament over why, since India has had refugees from Myanmar since 1988, Buddhists and Christians and so on were all given refugee cards, but Muslim refugees were not. After that they started recognizing getting refugee cards. There was absolutely no problem even in Jammu, but suddenly in 2017 political issues were raised at the local level. In 2017 the then Chief Minister of J&K gave a written reply in Parliament that there is no radicalization threat from the Rohingya settled in Jammu and Kashmir. Since 2017, we’ve only seen more xenophobia against the Rohingya.

AN: The Securing Citizenship report recommends that the Indian state must recognise stateless persons formally and issue identity certificates. These certificates will guarantee them legal personhood and the full gamut of rights until they are granted citizenship. The Ministry of External Affairs is empowered to grant identity certificates under the Passports Act, 1967 and the Passport Rules, 1980. Do you believe that this recommendation, as an interim measure, can combat discriminatory treatment in part?

RH: In the context of cases like Sheikh Abdul Aziz case (W.P. (Crl.) 1426/2013, Delhi High Court), where the person first said he in Bangladeshi, and Bangladesh refused, then he said Saudi Arabia, and Saudi also refused, in cases like this where he was very clearly a foreigner, this measure may work. Similarly with refugees, who are clearly foreigners from another country.

I don’t think the time is ripe for any solution of this kind in Assam specifically. When the NRC was finalized in August last year and there was a lot of international outcry there is a statement by the Government on the PIB website stating that there will be options available to persons excluded from the NRC and they will have to appeal their exclusion before the Foreigners Tribunals (‘FTs’). So that remains the official position, and this process has still not started even over a year since the NRC was published, despite appointing members to over 200 new FTs which have been established. Now they’re talking about re-verification in certain districts. It doesn’t seem that the Government is seeking any solutions at this stage. Our concern should be with the FTs, whether they’re appropriate platforms for the excluded to seek justice and inclusion in the NRC. I find it problematic to imply that the MEA will grant stateless certificates to such persons; the people will not accept it. Many Bengali Hindus I know are not happy with the CAA. Look at the irony – a person has been in Assam for decades, even if they came in 1971 they have been here for 50 years, yet to secure citizenship through the CAA, the Bengali Hindus, Buddhists etc. who have been excluded from the NRC will first have to admit that they entered India illegally! So it’s very ironic and insulting for someone who has been in the country for 60 years, even those whose lineages have been in Assam for 200 years, to call themselves ‘illegal migrants’ first. And we know how the smallest spelling mistakes or discrepancies have excluded people from the NRC.

No refugee is asking for Indian citizenship, except for the Sikhs and Hindus who have arrived from Afghanistan. Unfortunately the CAA is a political project – because the naturalization avenue has always been available, yet lots of Sikh and Hindu refugee families from Afghanistan, who came to India in the 1980s and they still haven’t got Indian citizenship! Recent news featured stories of Hindu refugees who came from Pakistan to Rajasthan, a lot of them have gone back! 11 refugees committed mass suicide. The problem in giving citizenship to these refugees from Afghanistan/Pakistan is more of a procedural problem as the law had always existed. The CAA doesn’t solve issues of refugees, even if we go by these three countries and these six particular communities that the Government has identified, they are not getting citizenship. It is extremely difficult and lengthy process that involves a lot of scrutiny. There’s a lot of corruption – every application of Pakistani and Afghanistani Hindus and Sikhs goes to all kinds of agencies – the Intelligence Bureau (‘IB’), Research & Analysis Wing (‘RAW’) etc. – each of which has to approve. There has been one case from a Bheel family who came 2-3 years ago whose application was rejected, they appealed to the Rajasthan High Court, which passed an order stating that their application should be considered, but by the time the order was passed they’d reached the Wagah border, and a woman of the family had died!

In the case of Assam, we are talking about resident populations, who have inter-generational relationship to Assam. It’s completely unjust, unfair, and completely violative of all international commitments to deem them illegal migrants. I see the problem more as an underlying ethnic tension between two communities, which manifests in the form of anti-foreigner movement. The Government has to admit that what is happening is wrong, only then can we move on to solutions.

AN: The report further recommends a path to citizenship for all stateless individuals in India keeping in mind India’s duty to prevent and reduce statelessness and to operationalise the right to nationality of such individuals. Do you think this recommendation can prove effective and model a path forward?

RH: One of the latest developments re: the Rohingya is that Myanmar has offered to take back people BORN in Myanmar. But then what will happen to children born in India, Bangladesh, Malaysia, Indonesia etc.? It becomes a very protracted situation. Myanmar has consistently refused to take back the Rohingya, even from Bangladesh. It is something that is going to be around for many years to come. There will have to be an international effort to come up with a solution to this. Otherwise, as we have seen, the Rohingya have become a floating population, risking lives, traveling on mechanized boats. The men keep moving across borders all the time; women and children are trafficked. This undocumented movement is then a threat to regional security. Therefore, populations like the Rohingya will have to be documented, they will have to be given some status in whichever country they are in, and they will have to be resettled internationally. This requires an international solution to the Rohingya issue. The Rohingya are stateless persons; since they are stateless, it is the responsibility of the India or whichever other country they are in to take them, give them residence, give them documents etc.

AN: You have worked with individuals who have been excluded from the National Register of Citizens (‘NRC’) in Assam, in an effort to legally empower them. Can you tell us about the ground realities of the current proposal of re-verification of the NRC? What role should civil society play to assist those facing uncertainty regarding their citizenship status in Assam?

RH: What happened in 2019, almost 2 million were excluded, and 120,000 declared foreigners by FTs so the situation was already bad. This re-verification exercise is going from bad to worse. Many Assamese parties, CSOs, and student bodies want numbers of exclusions to increase; as per media reports in Assam, the percentage of exclusions in Bangladesh-bordering districts is low. What will happen is that those who have been excluded from NRC and declared foreigners will be excluded from other rights and services.

We have recently done research of COVID exclusions in Assam, which will come out at the end of this month. We have noticed that already there is some exclusion from PDS, ration cards have been cancelled of some of those who have been declared foreigners, we have evidence from one district of a letter asking cards to be cancelled. A lot of people in Guwahati city people who were looking like they were from the border districts were not given the food rations. Another is land registration law, where there seems to be some new developments . What we thus fear is that there will be more and more marginalization and exclusion from rights and services. Such persons may lose freedom to travel freely in the country: we have seen how vigilante groups in states bordering Assam put up barricades on borders asking for NRC inclusion papers. So formally or informally they will be excluded and denied a lot of rights and services and freedoms.

 So civil society has two roles to play: first in highlighting citizenship by legally empowering communities to support them in fighting their cases before FTs, and the second is supporting them in securing access to services, and participation in local government. What may happen is that 2-5 years down the line the Assam Government may say that you require NRC inclusion to fight Panchayat elections. Unless a stop is put to this madness, the madness will go on advancing. If at all this crisis gets resolved, it’ll take many years; if it doesn’t get resolved, it will be very unfortunate and will become another Rohingya-like situation – the population will go footloose, there could be mass violence, and it will be a threat to regional stability and peace. It’s easy to target persons who aren’t considered citizens: even attacks on Rohingyas are because the attackers know they can get away with it with no repercussions.

AN: The Securing Citizenship report calls such persons precarious citizens since they are facing the threat of arbitrary deprivation of their Indian nationality. The Securing Citizenship report recommends that India must affirm the citizenship of precarious citizens in Assam who have been rendered vulnerable from the operation of the NRC and the Foreigners Tribunals (‘FTs’). Drawing on your previous work, do you think this recommendation is viable? What could be the possible challenges in its implementation?

RH: Absolutely, they should be treated as Indian citizens. One of the problems with FTs and the entire process is that the benefit of the doubt is not given to the applicant. So the smallest discrepancies in names, dates, locations etc. are treated as enough grounds to exclude someone or declare them as foreigners. One of the things about Assam is that it’s an ecologically sensitive region: lots of flooding, lots of shifting river basins and islands coming up and disappearing, so people shift a lot. So people have shifted a lot, according to one report 140 villages have disappeared in Assam in last 20 years. I have with me FT orders where for reason of shifting locations, people have been considered to be migrants from Bangladesh and declared foreigners. The exclusion is a political project – the members are required to declare a certain number as foreigners, they’ve been given a quota.

On the one hand, if someone says they’re stateless, people will argue that you can’t say that as they all have the option of going to the High Court. The question is how many can even go to the HC? Secondly, if there is still an option open for appeal, why detain people? Not only should they be considered citizens, they should not be detained. Even if FTs have to exist, there has to be a complete overhaul of the system, there are too many procedural problems, there is too much political interference in terms of appointment of members etc. There has been controversy over this: there is a case of some members who went to the Gauhati High Court over their non-continuation as FT members, there he has clearly alleged that his appointment was discontinued because of low level of declaring people foreigners (Sri Kartik Chandra Roy & Ors. v State of Assam W.P. (C) No. 4868/2017).

AN: The Securing Citizenship report recommends that the National Human Rights Commission (NHRC) and State Human Rights Commissions (SHRCs) must be further empowered to function akin to an Ombudsman to tackle discrimination faced by vulnerable groups such as stateless persons. Do you agree with this recommendation?

RH: SHRC is in disarray in Assam, it is not functional at all as far as I know. The last time I went there the office was closed for no reason. One of the issues however is that FT decisions are often upheld by the High Court, the High Court is in a way validating the arbitrariness. HRCs should look at procedures and appointment of members, which is a responsibility that the HC has.

AN: But with HRCs as they currently exist, there is little they can do to have their recommendations enforced, right? The most they can do is serve show cause notices to the government or release a set of recommendations, which the government can very easily choose not to comply with.

RH: Yes, that’s correct. The High Courts have the responsibility to look at procedures because of this lack of enforcement on the part of the HRCs. There’s just too much arbitrariness in the process.  

AN: In your opinion, how can awareness and research around statelessness be foregrounded in human rights discourse by civil society and academia? Accordingly, how can we effectively use the Report in such advocacy efforts in India?

RH: There are certainly increasingly internationally many people being excluded from citizenship. Lots of Governments are using this to exclude minorities from citizenship. People also need to understand the link between rights and citizenship – we’ve seen in this country how communities have been deprived of rights, resources. Their land has been taken away, their water and air have been polluted. Resources are being taken away, we have a history of the state denying resources to people. I see citizenship deprivation as a continuation of the same policy of depriving people of natural resources. Other rights groups like farmers, women, Dalits etc. need to understand that this is one way through which the Government is trying to control the population.

AN: How would you respond to the counters that the issue in Assam, and the necessity of the NRC exercise, flaws and all, are in order to protect indigenous Assamese lands and cultures from historical encroachment and movement of non-indigenous persons, and that Assam has borne the brunt in terms of shrinking resources due to the waves of illegal migration by virtue of being a border state?

RH: This is certainly an issue to be considered: the protection of indigenous populations. However, Assam is no Tripura: the Assamese elite are not the same as Tripura’s indigenous people. In Tripura in the course of 70 years, the tribals were 70% in 1950 or so, now they’re 30%, the proportions between indigenous and non-indigenous populations has completely reversed. This is what happened in Tripura, which is highly problematic. This isn’t the case in Assam. In Government jobs, trade, industry etc., while trade has more Marwaris, in Government jobs you’ll hardly find any Bengalis. Even this spectre of large-scale illegal economic migration is suspect. Bangladesh’s economic situation is much better than in Assam, and the fishing and leather industries are thriving, so why should there be economic migration in Assam? There are some refugee flows of Buddhists happening, but not large-scale migration. While I agree that land should be protected as in Meghalaya and Himachal Pradesh, the bogey of illegal migration and targeting minorities as ‘illegal foreigners’ is not the solution. Depriving people of citizenship will be counterproductive to India’s objectives of peace, development and justice.

Interview with Oliullah Laskar

Mr Oliullah Laskar is an advocate who practices before the Gauhati High Court. He is part of the Barak Human Rights Protection Committee (BHRPC), a human rights organisation based in the Barak Valley in Assam. We speak to Mr Laskar about the difference between citizenship and immigration laws, the working of the Foreigner Tribunals, the problems with the NRC, and the tribulations of a lawyer who has fought cases before the FTs.

The interview has been edited for length and clarity.

Oliullah Laskar: Before I begin answering your questions, I would like to give you some context to the Foreigners Act, 1946 and its use as a legislation to determine citizenship. The Foreigners Act (Act) is not equipped to deal with the situation in Assam or across India, if the NRC is implemented across the country. Because the mischief that was sought to be addressed by the Foreigners Act is different from the situation at hand.

The earliest version of the extant Act was passed as an ordinance in 1942. It was amended to become the law that is presently in force —the Foreigners Act 1946.

The Statement of Object and Reasons of the Act calls it a war emergency legislation. During the World Wars, governments tended to be more stringent about their boundaries and had placed restrictions on the entry of foreigners and immigrants. So the context of the promulgation of the legislation was the World War. We have to examine the context and immediate use of the Act in order to understand its present ineffectiveness.

The Foreigners Act, 1946 was not meant to be a legislation to determine citizenship. There is a difference between citizenship and immigration laws. An immigrant is presumed to be a foreigner and on the basis of that presumption she is denied most rights that are otherwise available to a citizen. However, in a citizenship determination exercise, we are determining the rights of people who are presumed to be citizens and already being treated as such.. Therefore, there is a distinction between immigration laws and laws relating to determination of citizenship.

You will find this distinction being recognised in international law jurisprudence. Even agencies of the UN have affirmed that the burden of proof should lie on the State in citizenship determination procedures. But in procedures related to immigration, in most western countries, the burden of proof is on the alleged immigrant. This was discussed in the Sarbananda Sonowal case. But the Supreme Court failed to distinguish between the process related to identification of immigrants and that of citizenship determination exercises. The SC did not make a distinction between otherwise distinct phenomena and therefore it was ruled that the burden of proof in a citizenship determination exercise, like the NRC, should be on the person alleged to be the foreigner.

The categories of persons to whom the Act is applicable is directly related to the question of burden of proof. If we assume that any person can be tried under the Act, then we will find ourselves in an absurd situation — anyone can be accused of being a foreigner.

If anyone can be sent to the Foreigner Tribunals (FT) there will be no meaning of the voter list, casting your vote, forming the government.  If people who have elected the government are being sent to the FTs, what is the legitimacy of the government? At present, we are in this difficult situation because of our failure to distinguish between immigration laws and laws for determining citizenship.

Natasha Maheshwari: In 2019, the Office of the United Nations High Commissioner for Human Rights noted that in “nationality determination processes, the burden of proof should lie with the State and not with the individual”. Section 9 of the Foreigners Act, 1946 places the burden of proving citizenship on an individual. Do you think that the IMDT Act, which placed the burden of proof on the State, was more equipped to deal with the question of citizenship?

OL: Citizenship is a very important question. It is not only the question of a person’s rights but of his life as a member of civilised society. The life of his progeny also depends on his citizenship. So it is a very, very serious matter. In fact it is more significant than capital trials.

If we follow a standard of due process or abide by the rule of law rules then the procedure will be stringent. The procedure adopted should be as stringent as that of a criminal trial.

In cases where a person who already enjoys her rights as a citizen under a legal presumption, like having her name in a voter list, is alleged to be a foreigner, the burden of proof should lie on the person who questioned her citizenship status. But in cases where an alleged immigrant is asked to prove her citizenship, the burden of proof should lie on the immigrant herself.

Like the Foreigners Act, the IMDT Act also used a quasi-judicial procedure to determine citizenship. Citizenship should be determined through a trial conducted by a regular court of law, the burden of proof being on the shoulder of those who allege foreignness of the person who is otherwise legally presumed to be a citizen. The proof that is given should be beyond reasonable doubt. Quasi-judicial tribunals like FTs or IMDTs can deal with cases of people who have a legal presumption of being a foreigner like people overstaying the validity of their travel documents which are now being dealt with in criminal proceedings conducted by judicial magistrates. The tribunals, therefore, appear redundant.

NM:  In your opinion, what are some of the problems with the NRC?

OL: There are criticisms from both sides  i.e. advocates for the NRC and those who are against it. The advocates of the NRC say that many people who should not be in the NRC have been included in the list.

Though the NRC intended to detect illegal immigrants, the process was not limited to them. Every citizen of India living in Assam had to file an application giving proof of their citizenship. The burden of proof was on them.

How is the government examining the capacity to vote of the very people who elected them? This is the main problem with the NRC. The other problem is that Clause 3(3) of the Act states that certain persons can register as original inhabitants (OI) if the registering authority is satisfied that they are OIs. But there is no definition of the term OI or procedure for determining who they are. In practice, this clause is applied on the basis of linguistic and ethnic identity.

Another problem is the virtual exclusion of certain types of oral and documentary evidence from the NRC process. As per Section 3 of the Citizenship Act, 1955, people who are born in India before 1987 are citizens by birth.

However, in the NRC application form, there was no provision to claim citizenship by birth by producing a birth certificate. Several countries have restricted the right to claim citizenship, but the basic democratic principle is that a person born in a country has a right to claim citizenship.

However, there is another distinction —  if it is applied to immigrants whose country of origin is known and admitted then it is a different question. If a couple has immigrated from another country with their child and are now living in India with valid travel documents then maybe the country of origin can grant citizenship to their child. But if neither India nor the country of origin recognises the citizenship of the child, then the child will be rendered stateless.

With respect to the right of a person to stay in a country, the European Court of Human Rights, in the case of Hoti v. Croatia,  has ruled that a person who has lived in a country for a very long time cannot be thrown out. 

While India hasn’t ratified the two international conventions on statelessness, Article 21 can be read in a manner such that a person cannot be rendered stateless, because without citizenship one will not have any dignity. Statelessness is the absence of rights. Hannah Arendt has called it civil death. Therefore, Article 21 will prevent a person from being made stateless.

NM: The objective of the National Register of Citizens in Assam was to identify illegal migrants, a long-standing demand of the Assam movement, which found expression in Clause 5 of the Assam Accord and Section 6A of the Citizenship Act, 1955.  Do you think that the NRC has been successful in fulfilling this objective?

OL: I don’t know whether the NRC has failed in its objective but the rhetoric of illegal immigrants is questionable. There are no authoritative findings which prove that there are a large number of immigrants in Assam. The Supreme Court has relied on Governor S.K. Sinha’s report. However, what is the authority of a Governor to make such a report? He is a Governor not the Government.

He did it in his personal capacity and not as the head of the State of Assam. As a Governor does he have this authority? What was the methodology by which he arrived at these numbers?

The works based on census reports does not reveal a significant amount of illegal immigration from our neighbouring countries. There may be illegal immigration but not as much as has been made out to be by the S.K. Sinha report.

An independent enquiry on the question of illegal immigrants should be made and if the committee concludes that there are a large number of illegal migrants they should be deported to their country. But which country do you deport them to? If it is Bangladesh then you cannot do so unless the Bangladeshi government accepts them as their citizens.

In its judgment in Assam Sanmilita Mahasangha, the Supreme Court directed the Indian government to speak with their Bangladeshi counterpart to discuss deportation. However, this was not implemented. The acceptance of the Bangladesh government may depend on the process that India uses to detect illegal immigrants. If the process is agreed upon by both countries then if someone is found to be a Bangladeshi immigrant, the government will take them back.

There are many instances of people extending their travel visas and continuing their stay. Article 36 of the Vienna Convention on Consular Access requires the government to inform consular authorities about an arrest. If the Bangladesh authorities find that a person who has been arrested for overstaying their visa is a Bangladeshi citizen then they will take them back. The Kulbhushan Jadhav case, which was fought before the ICJ, dealt with the issue of giving consular access to a foreign national. And if consular access is not given, civil society organisations intervene and contact the government of the country from which the person originates.

In the paragraphs above, I am referring to cases in which immigrants are involved. But the NRC is not directly related to such immigrants; the NRC is a process to deprive people who have been living in Assam for generations together of their rights as a citizen.

Even the Prime Minister of India has assured Bangladesh that the NRC is an internal matter. This means there is no question of deportation — the NRC is simply an exercise to make people stateless.

Amnesty International India’s report titled Designed to Exclude shows that the FT members are pressured to declare people as foreigners. There is a process of assessment of the performance of the FT members.  Declaring more people as foreigners is considered an assessment of excellence. Comparatively, the members who declare less people as foreigners are considered to have performed poorly.

Most of the FT members are on contract and they are under tremendous pressure to declare as many people as foreigners as possible. Apart from this, the Gauhati High Court (HC) has generated a sort of jurisprudence on the foreigner tribunals. There are mainly two rules made by the HC (there is no legislative basis for them):

1. In proceedings before the FT oral evidence has no significance.

2. If a document bears an unauthorised impression of a national emblem then it is not admissible.

For establishing linkage, often, women produce a certificate issued by the elected local government (Panchayat president). Panchayat presidents function under Assam’s Panchayat Act. Under the Prevention of Misuse of National Emblem Act 2005, and the Rules made in 2007 there is a schedule enumerating the authorities who can use the national emblem. Panchayat presidents are not allowed to use the national emblem. But they continue to do so.

So when the certificate is produced by the Panchayat president saying that he knows of this person and that they are the son/daughter of so and so whose name appears in the 1971 voter list, this certificate of proof of relationship is not admitted. This is because it uses the national emblem. However, no Panchayat president is ever prosecuted for wrongful usage.

In India the only thing which is considered to determine admissibility of evidence is relevance. If it is relevant it is admissible (the latest judgment on the matter is the verdict of the 3 judge bench in the Rafale review case). If a document is obtained through  criminal or illegal means it is still admissible if it is relevant. But the HC ignores this rule when it comes to trials under the Foreigners Act, 1946

So the first rule excludes oral evidence and the second rule excludes the documents that are available to many people.

These rules make it easier for the FTs to declare people as foreigners.

In most cases people fail to establish relationships with their parents. Section 50 of the Evidence Act, which lays down the evidence that can be used to prove a relationship, is also ignored.

In some cases oral evidence is recorded but not discussed in the decision by the FT or HC. According to the HC oral evidence has no significance before the FT. By excluding oral evidence, the HC has also disregarded the Supreme Court’s decision in the case of  Lal Babu Hussein v. Electoral Registration Officer. While the judgment does not directly deal with the admissibility of oral evidence, it assumes the admissibility of all types of evidence before the court in citizenship matters. 

NM: Recently, at a lecture at the National University of Juridical Sciences (NUJS), you said that the NRC process is exclusionary and discriminatory towards women in general and women from marginalised communities in particular. Can you elaborate?

OL: In 2016, I was sitting in a courtroom in the Gauhati HC. The bench was dealing with challenges filed against FT orders. The Presiding Judge, who is now the CJI of Sikkim HC, Justice A.K. Goswami asked why most of the challenges to FT orders were filed by women.

It is simple — more women are declared as foreigners by the FT which is why more women come to the High Court. It was a general observation made by the Court so the lawyer arguing did not answer Justice Goswami. But the question remains.

Most people who are declared as foreigners belong to the poorest section of the society. These people are uneducated and don’t have a board exam certificate or a birth certificate which can be used to prove relationship with their parents which in turn proves their citizenship. Additionally, the registration of marriage, particularly in the Muslim community, was not compulsory. It was made compulsory by an SC judgment pronounced much later.  However, even after it was made compulsory, a marriage that is not registered is still valid. As a result, many women do not have marriage certificates. Lastly, though the law gives women the right to inherit property, in practice this does not happen in most cases. As a result, often, women are unable to produce documentary proof to establish a relationship, particularly with their fathers.

In the case of men, some of them study up to matriculation and have board certificates. Those who do not have board certificates have land documents on which they mutate their name in the place of parents. They can use this document to show their relationship with their father. Men also put their father’s name on the voter list.

Women are frequently married before the age of 18 (even after the Child Marriage Act was enacted in 2006). So a young woman who marries before attaining majority  cannot enrol herself in the voter’s list of her paternal home; thereby proving that she is daughter of her father. So she enrols her name after she attains majority. Since she is already married, she uses her husband’s name in the voter list and not her father’s. So, the voter list does not help her to prove her relationship with her father.

There are several other reasons why women are excluded from the NRC, most of them deeply rooted in patriarchy. I have also heard of cases where a woman, who has left her husband’s house because of a domestic dispute, gets a notice at her matrimonial home. Because of the domestic dispute, the husband does not communicate the receipt of the notice. As a result, an ex parte order is passed against her. 

The reasons I have mentioned are not exhaustive. If fieldwork is conducted there are many other reasons that will come up. For example, if a family receives a notice from an FT in the name of a woman then too much importance will not be given to it. This is because a woman is not thought of as a very important member of the family. Even if the family appoints a lawyer, they will look for a cheap lawyer and won’t make too much of an effort to collect the documents that are required.

NM: Persons excluded from the NRC were supposed to receive rejection orders by March. Thereafter, the appeals process would begin. Now, because of COVID-19 and the catastrophic floods, the rejection process has been paused. How do you expect the appeals process to proceed? And how has the pandemic affected the lives of the people whose citizenship is in limbo?

OL: I am not sure. I saw a statement attributed to the new state coordinator of the NRC or an official from his office saying that they were in the process of preparing the rejection orders. However, due to technical problems in the database of the information preservation system, the data needed to be re-entered. This process of re-entry of data will take a few months.

But this pandemic has devastated the lives of people;  people have lost their jobs and there is scarcity of means to attain a livelihood. So even if the appeals process starts after the pandemic ends, it will be very difficult for these people because they will still be struggling to sustain themselves.

NM: As someone associated with the Barak Human Rights Protection Committee, what do you think is the role of broader civil society in resolving the question of citizenship and migration in Assam?

OL: A few years back I tried to speak with people who were working with human rights groups to make a position on this issue. If by civil society, you mean the human rights community, I think these people should come together and take a clear position on these issues.

The other part of the civil society, that is, bar associations, employees associations, the leadership of whom are members of the dominant communities, are not bothered about what is happening to the people excluded from the NRC.

 Even the people who profess to work from a human rights perspective are divided on the issue on ethnic lines. But some groups — for example, some women’s right organisations have taken a stand on one or two issues. However, even they haven’t taken a collective position and dealt with the NRC issue as a whole.  If an initiative is taken to get these human rights organisations to work together it will be much better. 

NM: Several FT lawyers have spoken of harassment and stigmatisation that they face due to the nature of their work. To add to that, a 2017 performance appraisal report of the members of the Foreigner Tribunals evinced that members who had declared a greater number of foreigners were more likely to be retained of their services in contrast to those who had declared fewer foreigners.

As an FT lawyer who has contended with threats and is arguing before a tribunal that is potentially prejudiced, what has been your experience? What motivates you to continue taking up citizenship law matters?

OL: I don’t appear before the FT very often because my practice is primarily before the HC. So personally, I haven’t faced one which is remotely uncomfortable. But I have heard about this from other lawyers. The newspapers had also reported a case of a scuffle within the courtroom.

But there were two cases that I recently dealt with — an interlocutory application was filed in both the cases but the application was not taken on record. So the lawyer in the case contacted me. I advised him to approach the local bar association. A delegation of the bar association spoke to the tribunal member but the application was still not taken on record.  Our request was only for the member to take it on record, if he felt that it was not sustainable the tribunal could reject it by passing an order. Then, I filed a writ petition before the HC, which directed the tribunal to accept the application

This shows that some of the tribunals are hostile towards the lawyers and they don’t even follow the minimum rule of procedures.

Natasha Maheshwari is a 5th year student at Maharashtra National Law University Mumbai. She is a core team member at Parichay.

“I’m too hungry to think of the Pandemic”: An Interview with Iftikar Hussain Siddique from Assam

Iftikar Hussain Siddique is a paralegal in Assam doing his part in ameliorating the conditions of those whose names are excluded from the NRC. This interview seeks to unearth the on-ground realities of Assam as it withstands floods, a pandemic and an identity crisis begotten by the NRC process. Mr. Siddique recounts his encounters and stories highlighting the condition of Assam at the juncture of this confluence of issues. 

This interview has been edited for clarity and length. 

Aarushi Mittal: Thank you for agreeing to speak to us. Can you tell us a little bit about your work, and how you came to be working as a paralegal?

Iftikar Hussain Siddique: My work includes helping those who are excluded from the NRC List. My aim is to help those from our community who fall within the weaker section of the society. In my initial years, I tried to ensure a healthy and hygienic environment for children. It was around this time that I started helping D-voters in getting their case through along with advocates. Essentially, I assist people in filling up the forms that need to be submitted. Since a sizable proportion of the population is uneducated, they need some sort of help in filling these forms and understanding what they entail. 

Since these are uneducated people, they don’t know where their thumb impression needs to be put or if one needs to be put at all. They tend to ask around for help from shop owners. They don’t know anything which is written in the form. This is where my role begins. Further, I also help them in checking if their name is on the list. My friends and I assist them in formulating their claims to citizenship. We were guided by lawyer Aman Wadud in this regard. This is how we tried to help people on the grassroot level. We prepare them for hearings by explaining what all needed to be said and what documents had to be submitted. 

Sometimes the biometric machines do not function, so we collected data on which places need a functioning biometric machine to ensure that procedure was not stopped. It is important to submit certain documents, while others are often ruled to be redundant. For instance, many people had submitted their Panchayat documents which were not accepted by the courts as valid proof of citizenship. So, we tried to help them collate a different set of documents which could be submitted. 

AM: It has been one year since the final list of the NRC was released. Rejection slips stating the reasons for exclusion were supposed to have been issued to excluded persons, allowing them to file appeals. However, no rejection slip has been issued so far. What has been the impact of this delay on people?

IHS: A very funny yet very astounding impact of this has been with respect to marriages. People now ask whether the name of the prospective bride or groom is on the NRC and whether there has been any adjudication to that effect. There is no other standard. People who have returned from detention camps, their children are in most detriment. This is a major trouble. Halima Khatoon’s daughter is being rejected simply because her mother was declared a foreigner. This is reasoned by claiming there are chances of a legal appeal, and that they would have to pay for these cases by selling lands. 

On our part, we tried to help 2000+ families by providing them ration. It is absolutely imperative at this point in time when floods have wiped out fields and the pandemic has taken away work that such provisions be undertaken. People don’t have ration cards or any other means to procure a day’s meal. Many people in the detention camps do not have ration cards. While the government provided Rs.1000 to families, that is barely adequate. Jabeda Khatoon, who had submitted almost 15 documents and was still declared foreigner, had her entire house destroyed as a result of a cyclone. Aman sir tried to help out by contributing some money to fix her house. She was extremely sick and yet she couldn’t go to a hospital because of her status as a foreigner. We tried to get in touch with a few organizations to help her. With a family with no source of income, the cyclone, pandemic, and NRC impacted her greatly. 

In this one river island, there was almost 5 feet of water. The people would survive on barely any meals.  There had been waterlogging for almost 2 months. We were able to help on the first day of Eid. This was a situation which existed across the spectrum. There was once a huge population among 52 households built of concrete, the floods barely spared a few. These people definitely get impacted. The delay creates trouble in that sense. 

AM: Assam has faced the twin blows of COVID-19 and floods.You personally have been involved in a lot of relief work in lower Assam. In your observations, how has this situation impacted persons left out of the NRC? Has there been any government aid? 

IHS: The first lockdown was of 21 days. Those who left their houses were beaten up. Further, there was no sale of food grains. Social distancing is a luxury, one which no one can afford. People can’t leave homes, and even if they do, they don’t have a market for their grains since people aren’t leaving homes. Before COVID, hunger was enough of a concern. The pandemic was not a concern for poor people, hunger was. People would say that they were too hungry to think of COVID. 

Another issue is the weakened health conditions of those in the detention camps. This is exacerbated with the onset of the pandemic.  One by the name of Rajkumar was a daily wager and was travelling to work, he was not aware of the imposition of the lockdown. The police ended up beating him up badly for flouting the lockdown rules. Daily wagers are severely impacted. 

The government is only concerned with testing for people who are COVID-19 positive. The political parties come door to door to spread their agenda. They advertise schemes. The Health Minister himself does not wear a mask. The BJP representatives are flouting the norms of social distancing left and right. In furtherance of the elections which were slated to happen, too many meetings are held and there is no social distancing or use of masks. 

Guwahati has some restrictions, but these are being flouted by political parties. People don’t trust the hospitals. They just buy medicines and stay home. I believe that Modi and Trump both would simply use the pandemic as an excuse for inefficient functioning. So, they are causing COVID to worsen to bolster their excuses. People have tried to reduce their expenditure on subsidiary items like clothing or going out. The poor Muslim people have been targeted specifically and deemed to be the cause of the spread. They are making a disease communal. While the doctors are cooperative, the media has portrayed a communal image. 

The masks are not provided, the government should be distributing masks. The hospitals are not good, doctors are not treating patients properly. Those who are positive are caught and after two days they are released. No containment zone is being made. The people who are positive are not being treated adequately. Hygiene again is a luxury – when a person cannot afford food, how are they to buy sanitizers. The government spends so much money on ancillary things like prizes to state toppers – this is not the time to make such promises. You need these funds to fight COVID. The NGOs must be employed in this regard too. People don’t have soaps to take a bath, hand washing is not possible. The pandemic is for the rich to worry about. 

AM: We know that persons declared foreigners by the Foreigners Tribunals are being detained in detention camps. What are the conditions within these camps? There is a stand-alone detention camp coming up in Goalpara–what is the status of that camp? How have local communities near the construction site reacted to the presence of the detention centre?

IHS: Jails had quite a few cases since they have people coming from outside. If one person is positive then all would be positive: jails were sealed and people testing positive were removed. The Supreme Court ordered that those who had been in the camps for over 2 years be released. As a result of the same, less than 50% people were released. 

However, now those who leave the camps, they will have to go to the police stations. This has caused a spike in the number of COVID-19 cases in Police stations. Those with COVID-19 still have to travel once a week. One person, who had to walk to a police station for almost 2 hours, had COVID. I asked him to inform the officers as him going to the station would not be safe for the police station in any way. The police asked him to come next week. There is no proper system in place. These people should not be asked to traverse to these stations at a time like this for a few months. Public transport is not functioning, police stations are far off and women cannot cycle to these stations. People need to walk for hours on end and be exposed to the risk of contracting a deadly disease. There is a need for intervention to that effect. 

As for Foreigners Tribunals, they are not currently functioning. The Buksa District Tribunal, however, has sent multiple notices. People do not have money, and these notices are released. Now they need to pay lawyers for this. People cannot fight these cases. They say that they’d rather have poison than exist like this. I cannot sleep listening to these stories. I do not know how I would tackle these situations. One person goes through multiple trials and tribulations with reference to their identity as an Indian. I’ve stopped asking people because it disheartens me so much. 

The detention camp in Goalpara had stopped construction initially and now it has begun again recently. Those who are excluded are really suffering. People keep asking me questions on how to ensure citizenship. They wake me up at 5 AM asking me how to go about this. I tell them that once the process begins again, I will help. The process of scanning documents has recently begun, they have started curating speaking orders. However, official documents still remain inaccessible.  

It’s great for government teachers, the lockdown, they can work at home. The poor people however are in too much pain. This one person had no money whatsoever and we gave him some money. We tried to give some food to people — however so many people came that we had to call the police to calm the crowd. People require food. If you give food to one person, multiple people come for it. Parents ask for food for their children. This one time, I gave one packet of biscuit to this one child and he ran off. It made me cry. His mother kept weeping outside my house. She was a widow. She couldn’t reconcile with the reality that had befallen her. 

AM: Have the FTs been functioning during the pandemic? If yes, do you think adequate measures are being taken to make sure that people are able to receive a fair trial?. Are cases dismissed hurriedly given that there was a pandemic or is the pandemic being used as an excuse to deny due process?

IHS: The advocates have lost a lot of money as a result of this lockdown. They used to earn a lot of money in these proceedings. What will happen is that they will now increase their charges for the case. This would further deprive people of the justice that they deserve. People will receive lesser money for their assets due to the lockdown. There might be people who are witness to some cases. If they are casualties to the pandemic, someone loses their chance at citizenship. People might not be able to come. People are not able to procure documents. It takes about 15 days to get documents, this is effectively delayed. People need to apply for certified copies. If these offices do not have officers however, they cannot procure such certified documents. The District Collector’s offices cannot be approached by outside people. How are they to fight cases?

The 6th citizen concept has become the talk of the town recently as a result of Clause 6 of the Assam Accord. People will be deprived of political rights, rights to buy land, or get jobs. In 1950, many places were really backward, they were not consulted in the first consensus. They remain unnamed. This would be highly unfair. It is a really bad situation. The 200 members appointed for the FT aren’t doing anything, they are just being paid taxpayers’ money. The staff that has been appointed to operate computers and all are not being paid salaries since March. They need to cover costs on their own. The system is not at all effective or people friendly. The reverification is also being discussed. People are being harassed. It’s a politically motivated system of harassment. Nobody knows how the government plans to tackle this. It eludes everyone, it’s only politics.

Aarushi Mittal is a 3rd year law student at West Bengal National University of Juridical Sciences. She is a research volunteer with Parichay.

Interview with Swati Bidhan Baruah

Swati Bidhan Baruah is a vocal advocate for the plight of the transgender community in Assam. Not only was Ms. Baruah Gauhati University’s first transgender law student, but she also went on to become Assam’s first transgender judge. Ms. Baruah has fought and won several cases for the recognition of trans rights. Her organization, the All Assam Transgender Association, has been consistently working towards the realisation of the rights of the transgender community.

This interview has been edited for length and clarity.

Natasha Maheshwari: Ms. Baruah, you filed a plea before the Supreme Court against the exclusion of 2000 persons belonging to the transgender community from the National Register of Citizens (‘NRC’). What motivated you to file the case? What was the Supreme Court’s response? Were they sympathetic to the problems of the community?

Swati Bidhan Baruah: Many transgender persons are abandoned or disowned by their families. When they leave their homes in search of a community, they stay with us. Neither do they have any connection with their parental homes nor any documentation that can help them establish linkage with their parents or guardians.  In such a situation, will they be termed as foreigners? Are they not citizens of India? 

Additionally, the first step of the NRC process i.e. the NRC form, allowed persons to choose from three gender categories — male, female, and other. By including the ‘other’ category, trans persons were given the right to identify themselves. However, when the first draft of the NRC was published, many trans persons found themselves to be excluded from the list. That is when I spoke to Mr Prateek Hajela, the then NRC Coordinator. Mr Hajela assured me that the government will implement the necessary evolving principles required to ensure the inclusion of members of the transgender community. This would be done through a claims and objections procedure. 

But the claims and objections procedure forced trans persons to identify as either ‘male’ and ‘female’, i.e. the ‘other’ category was not included. Now, let’s assume that I chose to identify my gender as ‘other’ while filling the NRC form and later, did not find myself included in the first draft of the NRC. While filing a claim or an objection, the ‘other’ category was not mentioned, thereby forcing me to identify as either male or female. So on one hand, the NRC process purports to allow trans persons to participate in it while simultaneously disallowing us from identifying ourselves. This process is violative of the 2014 NALSA judgment which gave trans persons the right to self identify in addition to leading to discrepancies in data thereby leading to problems in proving citizenship. 

When I spoke to Prateek Hajela about this he did not provide us with a satisfactory response. This is why we found it imperative to file an intervention application before the Supreme Court. 

[The NRC] is also violative of the rights of orphaned children. How are they supposed to identify themselves as citizens? In order to be included in the NRC, you have to show the authorities your family tree and establish linkage parents. That becomes impossible.

In the court, the ex-CJI told us that we have missed the bus, the Court could not restart the procedure [to ensure our inclusion].  My submission is that if we have missed the bus, aren’t trains and flights available? Why do they not want to accommodate us? However, the Supreme Court did not dismiss our petition. They kept it standing and issued notice to the State Government. The matter is still pending. 

NM: What is the experience of the transgender community in Assam during the NRC? Were the NRC Seva Kendras (‘NSKs’) receptive to the trans community’s complaints? Did they help members of the community to look for their legacy data?  What has been the community’s experience in producing legacy and linkage documents necessary for inclusion in the NRC been?

SBB: The officers at the NRC Seva Kendras were extremely insensitive. Most members of the trans community do not have any documents to prove their citizenship; the government has not taken any initiative to recognise them. As a result they find themselves excluded from the NRC process. 

The officers did not allow us to enter the Seva Kendra. Often, quarrels took between trans persons and officials. But this has not been highlighted by the media. I believe that the media plays a very important role in sensitising members of the society and officers of the government. It is very important that the NALSA judgment is implemented so that our rights are realised and recognised. 

The NRC process requires you to enclose documents to show your father’s presence in the country before the year 1971. Thereafter, you have to produce your birth or school certificates to establish a relationship with your father. This entire process is violative [of trans rights] and doesn’t have any evolving principles. 

Most trans people do not have documentation that will enable them to prove citizenship. Let me give you an example: let us assume, before transitioning, you were a boy, your name was Rahul. Now, you have transitioned to a girl and your name is Reshma. How do you prove that Rahul is Reshma? The state government is responsible for ensuring that trans persons possess documentation to show that Rahul and Reshma are one and the same person. A few trans persons left home at an older age and still recognise their parents or know of their whereabouts. When they visited their parental homes, their parents refused to give them the required documents. So, in such cases, how do you expect them to produce documents that will enable them to prove citizenship and be enlisted in the NRC?

In 2018, the Ministry of Home Affairs published a report publishing its plans for a nationwide NRC. If the Government of India is planning to extend the NRC process to the entire country it will be a gross violation of the rights of the trans community and orphaned children. 

NM: What were the efforts made by civil society organisations to ensure the inclusion of transgender persons in the NRC? Was the government receptive to these efforts?

SBB: No efforts were made, they did not do anything to help us. Seeing the discrepancies in the NRC process, my organisation, the All Assam Transgender Association, filed an intervention application before the Supreme Court pleading for a trans friendly NRC. 

NM: How can the government make sure that transgender persons are included within the NRC, i.e., what would a trans-inclusive NRC look like?

SBB: I believe that the government should keep the trans community in mind before initiating any process (and I am not referring to the NRC alone). They should recognise us as a part of society, we should not be alienated and marginalised. Keeping in mind the Supreme Court’s judgment in the NALSA case, the government should evolve a process that is trans friendly. Necessary principles need to be framed specifically for the trans community. If a trans person does not have documents then self-identification should suffice and be accepted as a valid document. If NRC Seva Kendras can exist for men and women, why can’t transgender persons have one?

NM: In 2018, the United Nations raised concerns of the purposeful exclusion of minority groups from the NRC by the local authorities. Do you agree with this concern?

SBB: Yes, I do. The NRC should not violate anyone’s interest. And I am not referring to trans persons only. For example, take yourself, you are born and educated in India. You are religious to the motherland. If someone comes and initiates a process that might declare you as a foreigner, how will that make you feel? It is very problematic!

Instead of implementing an NRC, I believe that the government should define the border.  This will prevent trespassing. There should also be an Inner Line Permit in the state along with a law to protect the interest of domiciles. So, there are other ways to protect the rights of the indigenous communities. The NRC is an extremely regressive alternative.

NM: Foreigners’ Tribunals (‘FTs’) are vested with extraordinary power due to the highly restricted criterion for judicial review. They are also allowed to evolve their own rules of procedure. As Assam’s first transgender judge, what is your opinion on the competence of the Foreigners’ Tribunals, which are quasi-judicial bodies, and its members to decide a person’s citizenship?

SBB: They may be vested with extraordinary powers but their orders are often challenged before the High Court and Supreme Court. They are also quashed, if need be. So there is nothing to worry about. A discrepancy, if any, seems to have arisen in ensuring the appointment of FT member judges. After the NRC process was completed. the government was supposed to set up more Tribunals to ensure justice to the persons excluded from the NRC. However, despite the selection of 200 member judges, their appointment has not been disbursed. And yes, there is executive interference and bureaucratic resistance in the functioning of the FTs.Of course, it is a matter of concern. But, in respect of matters concerning transgender persons, if we find any discrepancies in the FT orders, we will challenge them in addition to questioning the credibility of the FT member. 

NM: What, in your opinion, has been the role of the Gauhati High Court in upholding due process in cases before Foreigners’ Tribunals?

SBB: Several Muslims were excluded from the NRC solely because of their name. Suppose a man’s surname is Ali, but his father’s surname was Hussain and his mother’s surname was Begum. Now this man has given birth to 4 children. So one child uses Ali as his surname, another writes Hussain, and the third writes Begum. Their surnames do not match with each other and as a result they were declared as foreigners. The Gauhati High Court intervened in cases like these and rectified the judgment of the FTs. Of course, the court is the ultimate remedy. We must have some faith in the judiciary. There are good judges with a strong conscience who have expanded the area of jurisprudence and rectified the mistakes of the FTs. 

Natasha Maheshwari is a fifth-year law student at Maharashtra National Law University Mumbai.

Interview with Aman Wadud

Aman Wadud is a practicing lawyer in Assam, where he provides ground-level legal services and support to those who are at risk of being stripped of their citizenship status, owing to the National Register of Citizens (‘NRC’) process. He appears before the Guwahati High Court and the Foreigners Tribunals in Assam, and has also argued before the Supreme Court of India. His voice has been crucial in highlighting the ethnic and religious prejudices in the adjudication of citizenship in Assam. Apart from his litigation practice, Aman was heavily involved in the NRC process which involved travelling across Assam to spread awareness about the Court-monitored NRC. He has recently received the Fulbright-Nehru Master’s Fellowship for 2021-22, and hopes to continue to build on his work through this opportunity. In this interview, we discuss his work, citizenship adjudication in Assam, and the recent petition regarding the release of detainees in light of COVID-19.

This interview has been edited for clarity and length.

Devashri Mishra: I hope to discuss themes and questions which derive from your previous interviews, public appearances, talks delivered in colleges, your engagement with Parichay, and your work. But before any of that, congratulations on receiving the Fulbright-Nehru Master’s Fellowship for 2021-22! Can you tell us about what inspired you to apply for the Fellowship and how you believe it aligns with your work? 

Aman Wadud: Thank you so much for inviting me to do this. 

Earlier this year I was in the United States, where I was invited to speak at the Harvard India Conference at the Harvard Kennedy School. I was also invited to Harvard Law School, Columbia Law School, Yale Law School, Massachusetts Institute of Technology. I met a lot of professors, scholars, lawyers, and I ended my trip with testifying before the United States Commission on International Religious Freedom Hearing on Citizenship Laws and Religious Freedom, where I was a witness. Through this trip, I realized that an advanced degree in the United States will help my cause, widen my perspective and enrich my knowledge on International Human Rights Law, and comparative constitutional law. I want to understand how citizenship is defined in different constitutional settings and the application of citizenship laws. The jus soli concept came into being in the United States through the 14th Amendment in 1868, almost 150 years ago. The law has not changed till now, and anyone born in the US is a citizen by birth. Although when our republic was founded, citizenship was granted on the basis of the principle of jus soli citizenship, this slowly got diluted into the principle of jus sanguinis. This was still further diluted in the  Citizenship (Amendment) Act, 2003 and now, both parents are required to be Indian citizens. Since my work is centred around citizenship law, and I work before the Foreigners Tribunals (FTs), and High Court, I think that an LL.M. with a focus on human rights and comparative constitutional law will benefit my cause. Apart from my litigation, I’m also involved in advocacy work on statelessness. Around 135,000 people have already been declared to be foreigners in Assam and have been rendered stateless, along with their family members. Considering that most of my cases are pro bono, this prestigious Fellowship will allow me to study as it covers all basic expenses and will additionally provide me a small stipend. The network that I will build through this Fellowship will help me with my work as well. 

DM: Absolutely, and I think we’re all eager to see how your work carries forward after your stint in the US! We were extremely happy to hear this news here at Parichay, and we’re certain you’ve been getting similarly warm reactions from everywhere. There have been a few articles and social media reactions which indicate that you’re one of the first North-East Indians to receive this Fellowship – is this true? 

AW: Actually, I’m only the second North East Indian to receive this Fellowship in international legal studies, the first was Babloo Loitongbam from Manipur who received this Fellowship in 2004, sixteen years ago! In this category of legal studies, I’m the first from Assam. In terms of the response I’ve received, I’m overwhelmed. Look, to apply for this Fellowship, you need 3 years of experience, and I’ve had 10 years of experience and I’m deeply involved with the cause of fighting citizenship cases. I must have the blessings of a lot of people that I get so much love for my work. Over the years, because of the citizenship cause becoming a movement, I have received many calls and emails, inviting me to speak at several events. That’s probably why people relate with me, and maybe even because I use my Twitter handle quite effectively in furthering my cause. We have to keep in mind that no one was speaking for the cause of citizenship, and it only became fancy to do so only when the NRC list was released, and again when the CAA protests broke out on a national level. Before that, no one spoke about it. I have been working on this since 2014, and continuously speaking about it, possibly that is why people are emotionally related to me. In Assam, I think people know me because cases of the disadvantaged are referred to me from almost every sub-division of the state, and I’ve fought all these cases. These cases have taken me to many places in Assam, and I also travel for meetings and legal awareness, and for training lawyers here. That way, I know a lot of people and a lot of people know me! I’ve been working sincerely, and working really hard, and so by the grace of God, that may be why many are able to relate with me. I’m overwhelmed by the love and wishes I’ve received over the last few days!

DM: What you said about the rise in the debate around citizenship post the NRC coming about, and more so when the CAA was passed, is a very visible development, even in academic circles in law schools. The conversation around citizenship caught on significantly at the national level only recently, and it seems to be on an exponential rise. How do you think this development is seen by those living this reality everyday?

AW: In law schools, people have started taking interest in this. I’ve spoken to professors who admit that they used to skip the citizenship provisions while teaching constitutional law, and would skip to other chapters. Most of them did this because it seemed unimportant at the time. But now, it has become a practical, and important aspect of constitutional law, even in teaching, and it is no longer something we can take for granted. Perhaps they thought it could never be questioned but finally, we know that there can be a process where everyone may have to prove their citizenship. And that is probably why the interest has increased. I wish people had taken cognizance of what is happening in Assam, which has been happening for a long time. If you go to Economic and Political Weekly you will find articles on Assam, otherwise hardly there was any writing, however, several scholars such as Anupama Roy, who are authorities in the field, have written a lot on the subject. But it has remained a relatively minor field in academics, and before the NRC or CAA debates, a citizenship issue was not considered fancy enough to discuss. 

It is regrettable that people did not give adequate attention to the citizenship crisis in Assam, possibly many lives could have been saved if they had. As you know, detention centers in Assam started in 2009, around 10 years ago, where people were being detained indefinitely. Finally, in 2018, Mr. Harsh Mander filed a petition before the Supreme Court, which reduced the period of detention to three years and it brought an end to indefinite detention. Thirty people have died in the last three years. If enough interest had been given to these issues by professors, academics, and students, possibly it would have made a huge difference to this number. But, I’m happy people are finally paying attention.

DM: To go back a little to your mention of your trip to the US earlier this year – particularly your witness testimony during the Hearings at the US Commission on International Religious Freedom. You spoke about how marginalised groups are adversely affected by the citizenship determination process, especially because many of them do not have documents. Can you tell us a little more about why marginalised groups struggle to provide documentary evidence of their citizenship?

AW: The nature of proving citizenship is such that it is entirely dependent on documentation. Because there is a prolonged problem of citizenship in Assam, the Bengali Muslim community, especially, has always been very careful about documentation. 

Firstly, the primary document is the Voter List, but since most people accused of being ‘illegal migrants’ are illiterate, there are often anomalies in the names in the Voter List. There are inconsistencies in titles especially for Muslims, the father could have the title Ali, while the son’s title is Ahmad, but this is not a concern for Muslims. But for Hindus, the title remains constant, except for women whose title changes upon marriage. So the Voter List has anomalies with age and name. 

Secondly, there is a huge problem of erosion in Assam. Every year, around 800 hectares of mainland is eroded by the Brahmaputra and Barak rivers. People become homeless and shift from one place to another, and they have to record their name to the village they move to. So, there is a different Voter List for their original home, and a different one in the village they have shifted to. For example, if the person’s name is Amjad Ali, the Tribunal may say that the Amjad Ali names on both Voter Lists are different and some other Amjad Ali has been picked up, especially if there is a difference in name and age which happens often owing to typographical or clerical errors. This causes a lot of problems for people who migrate, as the Tribunal is given more reason to doubt the veracity of the evidence. 

It is not only erosion, but because these are poor people, they do migrate for their livelihood, although this group constitutes a lesser number of people and those affected by river erosion are much more.

Thirdly, women are another vulnerable group in this context. Women get married early in Assam since the minimum age is 18 years now (earlier it was 21 years). They vote only after marriage because of being married at around the age of 18 itself, and they do so in their matrimonial home and not in their parental home. This is true for almost every woman who is accused of being an ‘illegal migrant’ in my experience, I have hardly come across any woman whose name is recorded with her parents on the Voter List. Thus, a woman’s name is usually recorded with the husband in the Voter List. This is how women lose the most important document to prove their citizenship, as the voter list is a public document which is not required to be proved by the issuing authority. So, a brother who comes to depose as a defense witness, can prove his citizenship as defense witness because of being able to prove a relationship with their father, but the sister is not able to do so, whose citizenship  is being questioned as she does not have documents to prove it. This is the most important problem here in documentation for proving citizenship. Apart from Voter List, a woman can rely on Gaon Panchayat certificates, school certificates, nikah namahs – which are all private documents. There are also jamabandi certificates which can be relied upon but those are rare since these are poor people, who do not generally part with their land, and especially not to give to their daughters or sisters. This is a big problem in every society, that women do not receive land. If they do, land documents are reliable documents , but need to be proved by the issuing authority. The bottom line is that if their names are not on the Voter List with parents, it is difficult to prove citizenship before the Tribunals. If a seasoned lawyer is approached with a woman’s case, they will immediately say it’s a bad case, or refuse to take the case. This is bad, and of course they should not do this, but they also think that this will be a difficult case so they refuse because of the absence of documentary evidence. They could rely on the deposition of relatives, under Section 50 of the Evidence Act, but in practice , this does not happen because oral evidence is hardly relied upon by the Tribunal. Even if the father himself comes to testify, the Tribunal says that oral evidence is not enough to prove citizenship. Now, with NRC, children’s documentation is also weak as a result, and I fear that they may become yet another vulnerable group in citizenship cases.

DM: So when those accused of being ‘illegal migrants’ are ‘declared foreigners’, they are taken to detention centres, which you mentioned earlier. You recently approached the Supreme Court (‘SC’) in a plea to release persons ‘declared foreigners’, under the Foreigners’ Act, 1946, from the detention centres in light of the COVID-19 pandemic. What are your thoughts on the role of the SC in releasing people stuck in detention centres throughout the COVID-19 lockdown? Was the Supreme Court’s decision and the administrative response as you and your team expected when you filed before the Court?

AW: The SC in regard to detention and citizenship matters, is not as sympathetic as it should be. We filed our petition because the Court had already taken up a suo moto case with regard to decongesting the prisons in the wake of the COVID-19 pandemic. We felt that since detention centres are located in prisons, detainees should be released on the same basis as prisoners being released to decongest prisons. So we filed this petition praying that all detainees should be released unconditionally, without the earlier conditions imposed by the Court, i.e, completion of three years in detention, and requirement to submit two sureties of INR 1 Lakh each upon release, and appearance before police station every week. Since these are very harsh conditions, we argued that being a ‘declared foreigner’ should not attract such penal consequences. Persons are purportedly detained for the purpose of deportation only, but since March 13, 2013, which is when the formal deportation procedure began, only four ‘declared foreigners’ have been deported as per the Assamese Government’s affidavit before the Supreme Court. So if they cannot be deported, why detain them? Thus we prayed that these conditions be done away with, and that everyone be released in wake of the Coronavirus Pandemic.

The Hon’ble Supreme Court was pleased to reduce the detention period from three to two years, and reduce the financial bond to be furnished to INR 5000. This is a welcome Order, and 350 people have already been released. People like Minara Begum, who was detained in 2010, could not be released earlier because of the onerous requirements of the financial bond to be furnished by sureties in the 2019 Order which reduced the detention period to three years. When the requirements were reduced this year, a lot of people came forward with INR 5000 and detainees could be released. When Minara Begum was detained in 2010, her daughter was only 15 days old, she grew up in the detention centre with her. Their release and numerous others’ release was secured because of the Hon’ble Supreme Court’s order in our petition. But, I very humbly disagree with the Order in the sense that I think it is unreasonable to even detain people for two years if there is no scope for deportation which is the stated purpose of detention. Persons released after three or two years, with the surety, still have to appear before the police station. Everyone can be asked to meet this condition of appearing before the police station. Surety can be taken to meet this requirement, and instead, the surety requiring these huge financial bonds can be dispensed with, and I am certain many will come forward to give surety as well. As I said, in the last three years, 30 people have died in the detention centres which anyway have pathetic conditions. Detainees are forced to live there without having committed any crime, which takes a huge toll and they are under huge mental trauma. I agree that it is a favourable decision and I bow down to the decision of the Hon’ble Supreme Court, but I had hoped the entire system of detention would be dispensed with. I would have been happy if each and everyone had been released. 

DM: In a recent interview, you spoke about the pressure on bureaucratic and judicial officials to manufacture foreigners where none exist. This raises a larger question of how the determination of citizenship should ideally take place. What are some of the best practices/legal principles that we should incorporate into our system, and are there jurisdictions which we can look to for guidance?

AW: Firstly, I wonder if there is even a citizenship determination process in other countries which is comparable to the way it is determined in India. I’ve researched a lot, but there is no process that can match the way it is done here. 

Secondly, the basic problem is that while all tribunals in India are set up under a legislation, Foreigners Tribunals are set up under an Executive Order. The foundation itself is wrong. In the 1964 Order too, there is a requirement for members to have judicial experience which has slowly been relaxed, and altogether dispensed with. Initially, lawyers with 10 years of experience were appointed, then in 2019 lawyers with 7 years of experience were appointed. I’ve come across several recent appointees who only enrolled as lawyers 7 year ago and many of them have not even been practicing lawyers. Many appointed to the Tribunal do not have adequate experience to deal with the most important right in the Constitution – citizenship rights. 

Citizenship is the most important constitutional right, and as it is often called, and it indeed is, the ‘right to have rights’. If you take away citizenship, you don’t have any rights. Although the Constitution of India states that Article 14 and 21 are applicable to everyone, in practicality this is not true. For eg — ‘declared foreigners’,  do not have any rights despite this constitutional guarantee. They are stripped of all possible rights to live a normal life. If you look at the composition of the Tribunals, it is easy to understand the problem, many members do not even know how to write an opinion, they are not familiar with fair trial procedures, principles of natural justice or the basic principles of the Evidence Act. Although the Hon’ble Gauhati High Court selects them, they are the appointees of the Home Department of the Government of Assam. In 2017, there were remarks in the performance appraisal reviews of these members, which said their performance was unsatisfactory only because they could not declare more people as foreigners. If members declare more people as Indian, then their performance is considered unsatisfactory. All Tribunal members are on a contractual basis of two years, and those selected in 2019 are on a contract of 1 year. Thus, maintaining a job through renewal by the Government requires that the rate of declared foreigners be high, because the Government is engaged in vendetta politics and they are hell bent to prove more people as foreigners. The report by Arunabh Saikia on Scroll where Tribunal members refer to citizenship as ‘wickets’ and how many ‘wickets’ each has taken — that’s how casually they look at it, and that’s how many members decide cases as well. 

Recently, in the Dhubri district of Assam, they replaced all the Muslim government pleaders with non-Muslim government pleaders. There should at least be some pretense of following due process, or of being fair, but the Government is brazen. There should be some representation, especially in Dhubri district where Muslims are the single-largest majority but they have all been replaced. It is clear that the government wants this process to work in a way that does not meet the standard of a fair trial. I can say this with full responsibility and conviction, that this process does not meet the fair trial standard. The investigative process makes a mockery of the guarantees in the Constitution because a fair investigation is part of the right to a fair trial. When I speak of the investigative process, I become speechless because there is no investigation to speak of, and anyone can be picked up randomly and be accused of being an ‘illegal migrant’. For example, my client Mohammad Sanaullah, who is an ex-army veteran who served the country for 30 years, who was in Manipur in a counter-insurgency operation, Hifazat, when the forged ‘confessional statement’ of  him of being an ‘illegal migrant’ was signed. Hifazat means security, and when he was securing his country, he was accused of being an illegal migrant by the Assam Border Police. I shudder at the thought. This is why I really wish that the academics, scholars, and law schools, who have taken so much interest in the citizenship issue now, had done so earlier. Injustice anywhere is a threat to justice everywhere, and because people did not speak up when injustice was happening in Assam, it is haunting us all over the country. Every person who believes in the rule of law, and the theory of justice, must speak out against the gross injustice happening in Assam. This is not what the founders of India envisaged, and our Constitution says that all are equal before the law, and that the rule of law is supreme. These kangaroo courts should not exist because they do not follow due process. As a responsible citizen, I feel very sorry that no one did enough to raise their voices. 

DM: It is of note though that while the rest of the country, and the world, did not pay attention to the issue in Assam keenly, you and other lawyers have continued this fight at the FTs there. As a young lawyer, what has been your experience working in the FTs? Within the community of lawyers, how has your experience with the Bar Association, and others litigating before the FTs panned out? Did you have a mentor to guide you in this process?

AW: With regard to upholding the Indian Constitution, and inspiring me to become a human rights lawyer, I had two mentors. Firstly, Mr. Prashant Bhushan with whom I interned in the SC in my fifth year, in January 2010. In 2014, I met Mr. Harsh Mander as well. Both of them mentored me in that sense. But my inspiration to litigate in the field of citizenship specifically is owed to the fact that I’ve been accused of being a Bangladeshi myself, by my batchmate in secondary school. While studying law, I initially wanted to appear for UPSC, but I realized I would lose my voice. I wanted to speak out about what was happening. I realized I needed to tell the stories of how people of Indian soil are accused of being illegal migrants in their own motherland. They are abused and massacred in the name of being illegal migrants. Although we elect MPs and MLAs, they don’t speak about these issues. Our leaders and representatives should speak, because they have social and physical security, unlike me. I’m faced with threats to my life and my career but I continue to speak because I cannot compromise on what I believe. That’s why I gave up my dream of writing the UPSC exam, because I want to speak the truth and tell my stories. The day I stop speaking the truth, I will not be able to live with dignity. And it’s not just about my dignity, but the right of the persecuted and marginalized and voiceless people  to live with dignity, that is what keeps me going. It is a right that predates the Constitution. It is an inherent right, the Constitution and the Hon’ble Supreme Court through various judgements only confirmed the right to live with dignity. Any person born in any country, whether Stateless or legal or illegal, possesses rights to live with dignity (The word ‘illegal migrant’ itself is wrong, but it is the language of the Citizenship Act, which is why I’m using this term.)

Several lawyers have fought these cases, but it was just a case for most of them, and not a cause. In 2014, I started fighting these cases and I realized that most of the people who approached me were rickshaw pullers or thela walas who could not pay my fees. I realized that I belong to a privileged background, so I was not after money but the core of it was that I empathize with them. Empathy, not sympathy, because I saw myself in their position, because I know I could be one of them. When I was in secondary school, a friend called me ‘Bangladeshi’ so if instead of him, it had been the Border Police, they would have referred my case to Tribunal and I would be standing in the FT defending my citizenship. I saw myself in their place and I started doing this pro bono. In 2016, someone from my nani’s (maternal grandmother) place who knew that I practiced in the Supreme Court approached me. Moinal Molla had been detained for two and a half years by then, because of an ex parte order declaring him to be a foreigner. Both of his parents were declared Indians by the same FT. His writ petition and review petition were dismissed by the High Court and they had no money to go to the Supreme Court. 

We had a small group of friends then, and I told them that this was a good opportunity to help someone and simultaneously get the word out about detention centres in Assam, and the arbitrary process of FTs by which one can be declared foreigner ex parte. In 2014, the issue was an elephant in the room in Assam which no one wanted to talk about, and outside Assam, no one knew. It was, and still is, a taboo to appear for the defense in these cases at the FTs or HC, they think they will get branded in a certain way, sadly. One of my friends told me that she will give her zakat money, and another friend also came forward. Eventually, we landed up in the SC, and we briefed Mr. Raju Ramachandran about the case. The case got remanded to the FT in Barpeta, Assam, where I appeared 11 times and fought his case fully pro bono. He was declared an Indian and released after 2 years, 11 months and 29 days of detention. This story got out when notice was issued for the SLP by the SC, and eventually when he was released, it made big news! There have been subsequent cases of Mihir Biswas, Kismat Ali, Ashraf Ali, Mohd. Azmal Haque, and Sanaullah, which I fought and tried to publicise to bring the focus the issue deserves. At least people are talking about it, even jurists like Faizan Mustafa are writing about the FTs being kangaroo courts, and rightly so. Constitutional experts and jurists are speaking about this now, and I wish it had happened sooner. The blame also does lie on the civil society in Assam, which could not tell the world what is happening, and we had to start it. 

DM: There is often this narrative around the NRC, that there is political consensus on the need for this exercise, but its implementation has alienated people. Is it true that this consensus exists and if yes, could it have been done in a way that could have been fair and independent? 

AW: There was no such consensus about NRC from all groups of people – why should everyone’s citizenship be scrutinized? But then the SC ordered that the 1951 NRC should be updated in Assam, and since it was the Hon’ble Supreme Court’s order, we took it very positively. We thought that if at all there should be scrutiny, a Court-monitored process would be better than merely an Executive process. We wanted closure – how long will one group of people accuse another group of being illegal migrants? We thought that this issue must end; every election is fought only on this issue. In 2016, BJP fought and won the election only on this migrant issue. Hence, the Bengali Hindus and the Muslims took part in the process very actively. Plenty of lawyers, civil rights activists, and organisations travelled all across Assam to create legal awareness about how to fill up the form. I was also one of the privileged people who got to travel all over Assam, particularly the minority dominated areas, and I told the people I met, in each and every meeting, that this is a Court-monitored process so they should have faith in the Supreme Court of India. I assured them it would be a free and fair NRC, but the process turned out to be very harsh. There were several rounds of scrutiny, but people thought that “This is the last time going through this process, after this, do not accuse and abuse us as foreigners, let there be closure!” 

The Supreme Court quoted Shri Prakash Jaiswal’s statement before the Parliament about ‘5 millions illegal migrants’. Although, Shri Prakash Jaiswal himself withdrew that comment, this withdrawal was not recorded and the SC recorded only his first statement. After the process, only 1.9 million people were excluded. We found that many relatives, including my own cousins, were excluded from the NRC, which is how these numbers reached 1.9 million. But, in an Economic Times report, NRC authorities say that apparently names included in the NRC were deleted later on. In June, the NRC authorities issued another order for rectifying the Order which excluded people. What can be more outrageous than this? After excluding people from citizenship in an Order, they turned around to say that there are anomalies in that Order! Citizenship is not a petty thing. After the NRC list was out, when 1.9 million were excluded, the supporters of NRC began speaking against it. 

Today, we say – notify the NRC, and confirm it. There were 3.29 million people who applied for it, and 1.9 million have been excluded, so the others should receive the national identity card. That is the requirement under the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003. More than one year later, nothing has happened. Within a week, excluded people were supposed to receive rejection orders so that they could appear before the FT. The Guwahati HC selected 200 people to be appointed to the FTs in 2019 as I mentioned earlier, who are taking salaries of around INR 85,000 without doing any work, through taxpayers’ money. There is no issuance of notice because the very people who advocated the NRC found that their propaganda did not match the reality because allegedly there is ‘less exclusion’ so they do not accept this NRC. Now, the Home Minister says there will be another NRC in Assam, and the BJP government in Assam also says that they will scrap the NRC to hold another round of NRC, recently they stated they want re-verification. INR 1600 Crores were spent only by the Government in this exercise, which involved 55,000 Government employees, and these costs do not even include the costs incurred by the common people travelling across the State. People went through a lot of harassment during the process, and some even committed suicide for fear of losing their citizenship. How can you ask people again to produce documents in the name of re-verification? This would be a betrayal of the faith which people reposed in the Supreme Court when the Court ordered that the government update the NRC.

Devashri Mishra is a fifth-year B.A. LL.B. (Hons.) student at West Bengal National University of Juridical Sciences, Kolkata. She is a member of the Parichay Blog Team.

Interview with Prof. Niraja Gopal Jayal

Niraja Gopal Jayal is Professor at the Centre for the Study of Law and Governance, Jawaharlal Nehru University, New Delhi and Centennial Professor at the Department of Gender Studies, London School of Economics, London.  Her scholarship has focussed on citizenship, democracy, and governance. Her book Citizenship and Its Discontents (Harvard University Press, 2013) won the Ananda Kentish Coomaraswamy Prize of the Association of Asian Studies in 2015. Her other books include Representing India: Ethnic Diversity and the Governance of Public Institutions (Palgrave Macmillan, 2006) and Democracy and the State: Welfare, Secularism and Development in Contemporary India (Oxford University Press, 2019). She has also edited Re-Forming India: the Nation Today (Penguin Random House, 2019) and Democracy in India (Oxford University Press, 2009), and has co-edited The Oxford Companion to Politics in India (Oxford University Press, 2010); Local Governance in India: Decentralization and Beyond (Oxford University Press, 2005); and Interrogating Social Capital: The Indian Experience (Sage, 2004), among others. She has held visiting appointments at King’s College, London; EHESS, Paris; Princeton University; University of Melbourne; and University of New South Wales.  In 2009, she delivered the Radhakrishnan Memorial Lecture at All Souls College, University of Oxford. Some of her recent articles and op-eds can be found here and here.

This interview was conducted over email and has been edited for length. 

Arunima Nair: Current arguments around citizenship have frequently highlighted a shift: that Indian laws have moved from citizenship based on birth in Indian territory (jus soli), to citizenship based on descent (jus sanguinis). In your book Citizenship and Its Discontents, you argue that India’s trajectory is not quite this linear. Could you elaborate on this?

Niraja Gopal Jayal: That was an argument about the historical trajectory of the idea of citizenship. The questioning of the linear narrative in my book (which, by the way, was published in 2013, when I did not anticipate that the CAA would gather such momentum in just a few years) was an attempt to jog historical memory and remind ourselves that jus soli was such an embattled idea even in the moment of constitution-making. Though it was eventually endorsed by the Constituent Assembly, Dr. Ambedkar alluded to how contentious it had been when he described the drafting of it as a “headache.” Subsequently, the Citizenship Act 1955 expressed this unambiguously, and the process of attrition only began in 1986 with the amendment to give effect to the Assam Accord of 1985. So we saw, first, the emergence of a conditional jus soli – citizenship by birth available unconditionally, and regardless of their parentage, only to those born before 1987, while a person born in India between 1987 and 2003 was required to have one parent who is an Indian citizen. From 2004, this became even more restrictive, making ineligible for citizenship by birth a person born in India who has one parent who is an “illegal migrant” at the time of his or her birth. The debates around these amendments articulate the very prejudices and arguments heard for a restrictive conception of citizenship in the Constituent Assembly. They are a sign of the constitutional settlement having been less stable than we assumed it to be.

AN: Are ‘refugee’ and ‘migrant’ used interchangeably in Indian politics? What are the histories of these words and their usage in India? 

NGJ: Before I explain the distinction, please note that the word migrant in India has in popular parlance (at least till before the migrant workers’ crisis in the shadow of the pandemic) been prefixed by the word ‘illegal.’ It is in the Citizenship Amendment Act 2003 – which came into effect in 2004 – that the term “illegal migrant” entered the law, signifying someone who has entered India without legal authorisation or stayed on without it. It was a dog-whistle reference to Bangladeshis in Assam and the northeast more generally. 

Technically, refugees are compelled to flee their country and seek refuge in another land, due to political or religious or other kinds of persecution, and this movement is involuntary. Migrants, on the other hand, are understood to move voluntarily, more often than not for economic reasons. Such movement is also presumed to be legal because migrants typically have visas or (depending on which part of the world we are speaking about) guest worker permits. At the time of the Partition, these two categories acquired religious and normative overtones, such that Hindus and Sikhs coming into India from their homes in what had now become Pakistan were referred to as refugees, deserving of succour. On the other hand, Muslims who left their homes in India for the newly created state of Pakistan, but chose to return to India to reclaim their lives and livelihoods after the violence had abated, were termed migrants, deemed to be undeserving of the same consideration because they had after all chosen to go to Pakistan in the first instance. 

This offers an interesting contrast with the contemporary Hindutva discourse which defines both countries in terms of religious identity, such that Pakistan is an Islamic nation while India is a Hindu nation rather than a secular multi-religious one. The construction of India as a nation in which its Hindu citizens are by definition privileged, was therefore not the dominant understanding of India in 1947-48, but has acquired currency in recent times with the politicisation of religion and religious identity in our polity.

The political usage of ‘illegal migrant’ in India has thus made explicit that encoded identity of migrant = Muslim, while refugee = Hindu. This usage is consistent with the long history of these terms in India. Note that refugees from Tibet or indeed Tamils from Sri Lanka are still referred to as refugees, fleeing persecution. The CAA, in a sense, imports this distinction into its use of religious categories. It implies that Muslims cannot, by definition, be refugees because they cannot be persecuted in the three Muslim-majority countries they come from. 

AN: The Citizenship Amendment Act, 2019 requires applicants to prove that they belong to one (or more) of the six enumerated communities (Buddhists, Christians, Hindus, Jains, Parsis, Sikhs) from one of the three neighbouring countries (Afghanistan, Bangladesh, Pakistan), but the rules for the Act are yet to be notified, and it is unclear how an applicant is supposed to prove this. However, is this the first time that the religion of applicants was explicitly referenced as a criteria for obtaining Indian citizenship? How can the administration determine religion in such cases? Also, how did the local administration determine the religion of migrants to be registered?

NGJ: The Ministry of Home Affairs has reportedly sought more time to frame the rules. The text of the Amendment Act certainly does not mention any requirement for proving religious affiliation, nor does it require the experience of persecution to be proved. In fact, one of the objections of the Intelligence Bureau (as recorded in the report of the Joint Parliamentary Committee on the CAB) was precisely this: that these provisions could be misused by “infiltrators” from neighbouring countries, presumably because they could claim to belong to one or other of these religions in order to gain entry for purposes such as espionage. It is baffling how functionaries in the local administration could determine anybody’s religious identity.

While this is the first time that religion has been explicitly mentioned as a criterion for determining citizenship, religion did find mention in the 2004 Rules of the Citizenship Act, which delegated limited duration powers to the District Collectors of border districts in Rajasthan and Gujarat to register people most of whom had come in from Pakistan after 1992, on Pakistani passports and valid visas that they had outstayed. The Rules invoke religion explicitly, as they refer to these people not as migrants, much less as ‘illegal migrants,’ but as ‘minority Hindus with Pakistan citizenship who have migrated to India….with the intention of permanently settling down in India…’ 

AN: One of the disproportionate effects of our current citizenship law is that children born after 2004 are particularly at risk of having their citizenship questioned in any verification exercise. This is because, per the Citizenship Act, any person born in India after 2004 is an Indian citizen by birth only if one parent is an Indian citizen AND the other parent is not an ‘illegal immigrant’. One example of how this has played out in practice is the NRC exercise in Assam: a child, who has a parent who’s either been declared a ‘doubtful voter’ or whose case is pending before a Foreigners Tribunal, will be excluded from the NRC on the basis of the Act. Is this creating a problem of inherited statelessness?

NGJ: Indeed it is. This is affecting people whose parent(s) may have come in 40 years ago, even likely have voted in elections. These individuals born after 2004 (who would today be 16 years of age or less) have known no other home but this. It is decidedly unjust to render them stateless and amounts to punishing them for something they had no control over – the place of their birth. The predicament of infants and children in the Assam NRC is deeply worrying.

AN: How have our citizenship laws historically grappled with (if they have at all) the statuses of women, Dalits, Adivasis, and other socially vulnerable groups?  Documentation is very  central to citizenship determination. But, as has been repeatedly pointed out, there’s a mismatch between the expectations of a formal legal regime and the sociological reality of Indians—particularly the poor, illiterate, and marginalised, who simply do not possess and cannot access any documents. And it isn’t just a question of the number and types of official documents—but the veracity of official documents themselves is constantly questioned, constantly challenged. Why is there such a pervasive suspicion of documents? Is this particularly acute in border states? Have government policies or judicial bodies taken note of this sociological reality in the context of citizenship?

NGJ: Let me phrase my response in terms of, first, a distinction between formal and substantive citizenship. The poor, minorities, Dalits, Adivasis and women belonging to all these groups enjoy the formal status of citizenship – but, for these groups, substantive citizenship, the ability to meaningfully exercise rights, is far from realized. 

Given the marginalisation and vulnerability of these groups, given the convergence between poverty and the absence of documents, and given the histories of prejudice in our society, these groups, more than others, will – through the instruments of the NRC/NPR – be pulled backwards, perhaps even deprived of the formal legal status of citizenship. For them, this would be a move from the substantively second-class citizenship they hold to formal legal second-class citizenship or worse; from an enfranchised status to potential disenfranchisement. This, if nothing else, should disturb our conscience.

Secondly, you are quite right about documents. It is a fact that the poor and disadvantaged are also historically the most poorly documented. The veracity of such documents as they possess is frequently called into question – in one case, the Bombay High Court deemed somebody’s passport as having been acquired by fraudulent means. As we saw very recently, poor people in Assam suffer the ravages of floods almost every year, and papers are regularly lost in such natural calamities. The state’s obsession with the requirement of paper as proof is one side of the coin; its habitual distrust of the authenticity of the document offered is the other.  

AN: Discussions around citizenship have primarily circled around the state’s perspective, and the state’s sovereign prerogative, in granting citizenship—which has meant debating laws, rules, and whether these laws and rules are fair or not. What does Indian citizenship mean to the various communities who are in line to receive it? What are their hopes and expectations from being conferred Indian citizenship? 

NGJ: My interviews in Rajasthan with communities – mostly Dalit and Adivasi – who had migrated from Pakistan suggests that to them Indian citizenship means just the basic paperwork to be able to get employment, send their children to school and college, access the public distribution system, get a patta for land, get an electricity connection and so forth. It had little or nothing to do with any sense of affective belonging, much less any feeling of religious identity. Those who could have got it in the citizenship camps organised by the administration often could not afford it. Even after the CAA, we will not know till the Rules are framed as to whether this fast-track citizenship will come with a hefty price tag or not.

AN: You have written that even as the years between the Partition and the present increase, we seem to be reopening, and not reconciling, the wounds and ‘divisive legacy’ of that epochal event. How do you think this affects our relationship with our neighbours? Can an ‘internal matter’ dealing with foreigners and citizens be resolved without international cooperation? 

NGJ: The CAA has already made manifest the unhappiness of our neighbours. The threat of deporting ‘illegal migrants’ to Bangladesh, led to a statement from the High Commissioner of Bangladesh in India to the effect that people from his country would prefer to swim to Italy in search of employment than to cross over to India. In fact, there is speculation that, given the impressive economic indicators of Bangladesh today, there may be less migration from Bangladesh to India now than in the reverse direction. Already, with 1.1 million illegal Indian immigrants, Bangladesh is the fifth largest sender of remittances to India. The High Commissioner of India in Bangladesh has reportedly not been given an appointment with Sheikh Hasina for four months. These incidents suggest some deterioration in a hitherto robust bilateral relationship. Afghanistan too was hurt by the insinuation that Hindus and Sikhs are persecuted in their country. In fact, some instances of persecution after the passage of the CAA have come to light. It is well known that Pakistan’s treatment of its minorities is far from good, and that untouchability is also practised against its Dalit citizens, but present day India is scarcely in a position to lecture others on the question of how minorities should be treated.

Arunima Nair is a Core Team Member at Parichay. She is a second-year LLB student at Jindal Global Law School.