REFUGEES

[This note has been authored by Soumyajit Joardar].

Introduction: The Refugee Convention of 1951

The term ‘refugee’ refers to people who are forced to flee their country due to the threat of persecution. The first refugees were white protestants who had to flee France due to religious persecution in 17th century Europe. However, the concept garnered further interest only in the aftermath of World War II. Subsequently, in 1950, the United Nations High Commissioner for Refugees was instituted to safeguard the interests of the Europeans displaced during the conflict period.

The Refugee Convention 1951 defines ‘refugee’ as a person who is unable or unwilling to avail the protection of their country of nationality and is residing outside their country due to the fear of prosecution based on factors such as race and religion or membership of any other social group. Article 33 of the Convention, through the principle of non-refoulement, has forbidden nations from returning refugees to the country where they would face the threat of persecution. Article 31 prevents States from penalising refugees for illegal entry until they present themselves to the authorities and show cause. Article 32 of the Convention protects expulsion of refugees except on grounds of national security or public order in accordance with due process.

In 1967, an additional Protocol was enacted to further safeguard the interests of the refugees. It removed the temporal and geographic limitations of the 1951 Convention. While India is not a signatory to the Refugee Convention, it is bound by certain principles of the Convention, such as non-refoulment, as they have become customary international law.

India’s International and Constitutional Law Obligations Towards Refugees

India is also a party to the International Covenant on Civil and Political Rights (ICCPR), 1966, the International Covenant on Economic, Social and Cultural Rights (ICESCR), 1966, and the Convention on the Elimination of All Forms of Racial Discrimination (CERD), 1963. Hence, India is obligated to protect and preserve the rights of the refugees by virtue of principles such as non-refoulement and in light of its other civil rights related obligations under the ICCPR, ICESCR and the CERD.

India’s Treatment of Refugees: An Overview

India’s experience with Refugees began in the aftermath of the partition, when it dealt with mass inflow from Pakistan (and vice-versa) due to religious persecution. Nonetheless, in the years since then, India has not adopted a uniform policy on the issue. Instead, the treatment refugees receive depends on their country of origin.

The government has taken active steps to cater to the refugees from Tibet and Tamils from Sri Lanka. The Ministry of Home Affairs has categorically stated that India refers to only Sri Lankan Tamils and Tibetans as refugees and has specifically aided the Tibetans in multi-dimensional ways. The Tibetans have been provided land for settlement in Karnataka, Himachal Pradesh and Uttarakhand in addition to access to education, health care and welfare of their community interests. The Sri Lankan refugees, however, have not received the attention of the government. They find themselves languishing in camps in Tamil Nadu. These camps lack basic facilities such as sanitation and security. However, groups like the Chakmas or the Rohingyas are not treated like the Tibetans or Sri Lankan Tamils. Instead, India has been lackadaisical in providing basic facilities to the Chakma and Hajong refugees.    

Refugees from Myanmar have been treated differently and have been referred to UNHCR by the government. The role of the UNHCR is to preserve the interest of refugees and asylum seekers not protected by the Government of India. The UNHCR currently hosts 40,859 refugees and asylum seekers. Once determined by UNHCR as refugees, the individuals receive refugee cards which allow them access to education in government schools and free medical treatment in government hospitals. It also acts as a guarantee against forced deportation.

Having been surrounded by countries such as Bangladesh and Myanmar, India is in a unique position to take into account cultural interests of its neighbours alongside demographical considerations. However, the usual responses from India are limited to resources and infrastructure as a hindrance to accept refugees. There has been a resounding political consensus on this issue.

The Ministry of Home Affairs has taken a consistent position regarding the refusal of rights to the refugees to settle in the country. There has been a persistent understanding that the refugees are a burden on the taxpayers of the country. However, the fact that the refugees contribute significantly to the country’s economy is overlooked. Unfortunately, public discourse around India’s failure to fulfil its international law obligations towards Refugees is minimal. The status quo of non-uniformity reigns the landscape.

Suggested Readings:

  1. P Oberoi. (2001) “South Asia and the Creation of the International Refugee Regime” Refuge, available at https://refuge.journals.yorku.ca/index.php/refuge/article/view/21228/19899.  
  2. BS Chimni (2000) ‘Legal Conditions of Refugees in India’ in International Refugee Law: A Reader.  
  3. Refugees Defined and Described in The Refugee in International Law (3rd Edition) Guy S. Goodwin-Gill, Jane McAdam, OUP.
  4. CITIZEN REFUGEE: FORGING THE INDIAN NATION AFTER PARTITION by Uditi Sen.
  5. Responding to protracted refugee situations: Lessons from a decade of discussion (FORCED MIGRATION POLICY BRIEFING 6) by Dr James Milner and Professor Gil Loescher.
  6. The long partition and the making of modern South Asia (2010), New York: Columbia University Press.
  7. Government of India, Ministry of Home Affairs, Annual Report 2018-19. https://www.mha.gov.in/sites/default/files/AnnualReport_English_01102019.pdf.
  8. UNHCR Fact Sheet on India 2020. https://reporting.unhcr.org/sites/default/files/UNHCR%20India%20fact%20sheet%2031%20December%202020.pdf

FOREIGNERS’ TRIBUNAL

[This note has been authored by Shuchi Purohit]

Foreigners’ Tribunals are quasi-judicial bodies set up by the Central Government to determine whether a person is a foreigner or not under the Foreigners’ (Tribunals) Order, 1964, created under the Foreigners Act, 1946. The Executive appoints judicial members to adjudicate cases before FTs. These tribunals differ from other tribunals or courts of law in India in terms of procedure, selection criteria of judicial members, examination of evidence, absence of an appellate body, etc. Presently, as many as 1.4 lakh cases of suspected foreigners are pending before 300 tribunals functioning in Assam. 

History and Establishment of Foreigners’ Tribunals

The primary aim behind setting up foreigners’ tribunals was to avoid arbitrary deportation. The Foreigners Act was first enacted in 1864, to limit the mobility of groups that the colonial British government saw as “disorderly or alien.” The Foreigner’s Act, 1946, which was adopted by independent India, incorporated this objective as well, in a situation where borders were porous and in flux, especially along the eastern borders. However, the Foreigners Act did not incorporate any mechanism for the identification and detection of foreigners. 

The 1961 Census Report focused on preparing data on irregular immigrants. 2,20,691 ‘infiltrants’ were found in Assam due to migration from East Pakistan. The Border police thereafter misused this data as they started detecting and deporting foreigners without any judicial process. The Ministry of Home Affairs then, through powers granted under Section 3 of the Foreigners Act, passed the Foreigners (Tribunal) Order, 1964, so that no person would be deported without a hearing. 

In 1983, the Government of India passed the Illegal Migrant (Determination by the Tribunal) Act, 1983 (‘IMDT Act’). The objective of this Act was to determine foreigners who entered India after 25 March 1971, according to Section 6A of the Citizenship Amendment Act, 1986. Such individuals were ineligible to obtain Indian citizenship and were detected and deported in accordance with the IMDT Act. The IMDT Act differed significantly from the Foreigners Order in one respect: it placed the burden of proof for demonstrating that the individual is a foreigner upon the state. It also defined the eligibility criteria to be a judicial member of the tribunal. An option of the review was available in case a difference of opinion arose among the judicial members.

However, there was growing turmoil in Assam as the leaders of Assam Agitation believed that the IMDT Act was unsuccessful in detecting and expelling foreigners and the issue of irregular immigration remained unresolved. Hence, in 2005, in Sarbananda Sonowal v. Union of India, the Supreme Court declared the IMDT Act as unconstitutional, as it found the procedure laid down in the Act to be “time-consuming”. The Court cited two reasons for its decision. First, that the Act failed to protect the people of Assam from external aggression by the migrants, which is the prerogative of the central government. Second, that in order to uphold national security, there was a need for identification of these foreigners to expedite their deportation. The Court struck down the IMDT Act as unconstitutional, and reverted to the Tribunal regime established under the Foreigners Act and Order, thus shifting the burden of proof to the individual suspected to be a foreigner. 

How do Foreigners’ Tribunals receive Cases?

There are three modes through which the Foreigners’ Tribunals receive cases: references from the Border Police, the Election Commission of India, and the National Register of Citizens. There are presently 1.9 million people who are excluded from the final draft of the NRC, waiting for their fate to be decided, as the process for their claim to citizenship before FT is yet to be started. 

Almost every district in Assam has Assam Police Border personnel stationed, who identify and investigate alleged foreigners based on their discretion. Cases identified by the Border Police are referred to FTs for final adjudication. However, civil society organisations argue that this power is often abused by the Border Police as they do not follow any investigatory guidelines to identify alleged foreigners, as laid down by the Gauhati High Court

Individuals can also be identified as foreigners by the Election Commission. In 1997, the ECI had identified around 2,30,000 voters as ‘doubtful,’ whose cases were then referred to FTs for adjudication. 

Finally, the National Register of Citizens in Assam is an exercise identifying all Indian citizens in the state. Individuals excluded from the list are identified as foreigners, who will have to prove their citizenship before FTs. In 2019, the final NRC list was released, which excluded around 19 lakh people from citizenship. In May 2021, the NRC Coordinator had filed an application before the Supreme Court seeking re-verification of the NRC, stating that some ‘issues of substantive importance’ cropped up while preparing the rejecting slips, thus delaying the process.

Lapses of Foreigners’ Tribunals in India

India is a party to the International Covenant on Civil and Political Rights (ICCPR) and is hence bound by its treaty obligations. Article 14(1) of ICCPR states that every person is entitled to a “fair and public hearing by a competent, independent and impartial tribunal established by law.” The Foreigners Act falls short on each criterion set by ICCPR, as it fails to establish standardised criteria of eligibility for its members. 

Scholars and civil society organisations have raised concerns regarding the independence and impartiality of these tribunals. The appointed members of the Foreigners’ Tribunal do not have any specialized training in law or adjudication. This is evidenced by the Gauhati High Court’s circular seeking to appoint senior civil servants as members of the Foreigners’ Tribunal, as opposed to persons having prior adjudicatory or legal experience. Moreover, membership with the Tribunal is renewed or terminated depending on the conviction rate. Thus, members of the Foreigners’ Tribunal would be incentivised to declare more people as foreigners, to retain their seats. This leads to an inherent conflict of interest, which falls short of the requirement of impartiality.

The Act also fails to state the training a member needs to carry out the judicial duties, thus compromising the requirement of competency. In 2015, the training received by the 63 selected members spanned merely four days. Out of those, only two were former or serving judicial officers. Moreover, the Government of Assam has further lowered the threshold of experience required from 10 years to 7 years. The age limit of induction which was previously 45 years, is now 35.

The tribunals are empowered to regulate their own procedures, as provided by the 1964 Order. Civil society organisations have noted that in practice, this power is abused and the tribunals do not provide documents such as written statements, witness depositions, etc., which are necessary for an individual to fairly contest and appeal their case. More than 60% of cases are decided ex-parte, as most individuals do not receive show-cause notices. The Gauhati High Court had stated that since Foreigners’ Tribunals are not civil but rather quasi-judicial bodies, the principle of res judicata does not apply. However, the Supreme Court in Abdul Kuddus v. Union Of India, later overturned this ratio, finding instead that quasi-judicial orders rendered by Foreigners’ Tribunals have civil consequences. Therefore, the doctrine of res judicata would apply. Further, the orders passed by Foreigners’ Tribunals cannot easily be found in the public realm, making the entire process opaque.

The Foreigners Act and Order do not provide for a right to appeal against the decision of a Foreigners’ Tribunal and set up no appellate body. All appeals have to be made to the High Court and Supreme Court. There are various factors such as litigating costs, locations, the prolonged duration of appeals etc. which act as barriers to individuals approaching appellate courts for a review of their decision. Even if they wish to do so, this right has become judicially restricted through the decision of the State of Assam v. Moslem Mandal. The decision states that the tribunal is the final fact-finding body, post which facts cannot be challenged during the appeal. However, facts are the most important aspect of such cases. Lawyers practising in FTs note an alarming difference between the prescribed methods for fact-finding and how facts are actually obtained by the Border Police. The guidelines laid in Moslem Mandal propounded that the referring authority must forward their observations recording their satisfaction in such a manner that demonstrates their application of mind to the facts and circumstances of the case; however, the fact-collection procedure is largely ignored. 

Conclusion

The objective of the 1946 Act was to deport legitimate foreigners in the Indian territory, rather than to determine the citizenship status of the masses to declare them foreigners. The functioning of these tribunals fails to take into consideration the grave risks associated with statelessness. It forces targeted individuals to live in limbo with constant anxiety over their civil and political rights. 

Suggested readings

  1. Amnesty International India, ‘Designed To Exclude: How India’s Courts Are Allowing Foreigner Tribunals To Render People Stateless In Assam,’ (2019) <https://www.amnesty.be/IMG/pdf/rapport_inde.pdf>.
  2. Talha Abdul Rahman, ‘Identifying the Outsider: An Assessment of Foreigner Tribunals in the Indian State of Assam’ VOL 2 NO 1 (2020): STATELESSNESS & CITIZENSHIP REVIEW <https://statelessnessandcitizenshipreview.com/index.php/journal/article/view/141>. 
  3. Sangeeta Barooah Pisharoty, ‘Explainer: What Do the MHA’s Changes to 1964 Foreigners Tribunals Order Mean?’ (The Wire, 14 June 2019) <https://thewire.in/government/foreigners-tribunals-order-mha-changes
  4. State of Assam v. Moslem Mandal and Ors. (2013) 3 Gau LR 402.
  5. Mohsin Alam Bhat, ‘Twilight Citizenship’ (2020) 729 Seminar <https://www.india-seminar.com/2020/729/729_m_mohsin_alam_bhat.htm>. 
  6. Citizens Against Hate, ‘Making Foreigner: Report on NRC Updation in Assam and the Risk of Mass Statelessness’ (2018) <https://citizensagainsthate.org/wp-content/uploads/2019/06/Making-Foreigner.pdf

DEPORTATION AND DETENTION

[The Centre for Public Interest Law, Jindal Global Law School is currently offering the year-long Clinic on Citizenship and Statelessness, where students are developing research outputs on citizenship issues in India and assessing the citizenship determination framework under international law. This research note, prepared by Andolan Sarkar, is part of the clinic’s outcomes.]

A foreigner as defined in Section 2(a) of the Foreigners Act of 1946 (‘the Act’) means a person who is not a citizen of India.[1] The ambit of this act extends to stipulating the deportation or detention of such foreigners. The definition of a foreigner within the Act, however, is vague since it negates the distinction between refugees, illegal migrants, and asylum seekers.

Deportation entails the expulsion of a foreigner from their current resident country to their country of origin or any other third country by any lawful authority on grounds authorised by law. While detention entails the lawful confinement of any individual, such confinement must be prescribed by any statute and sanctioned by the Court. The relevance of this discussion hinges on the several petitions challenging deportation orders and  thousands of individuals being detained in detention centres in dingy conditions for prolonged periods without a fair trial.

The authority of the Indian State to deport arises from Section 3 of the Act which allows the State to make orders restricting the stay of “foreigners” within Indian territory. Threat to national security, illegal entry into the country, commission of crimes by foreigners, residence within the country after the expiration of visa, violation of visa conditions, and nationality under question are some of the grounds on which the State has previously administered deportation orders.

In Assam, in particular, vide Notification No. 1/7/61–F.III dated the 22nd March 1961, the authority of the state to adjudge individuals as foreigners under clauses (c) and (cc) of Sub–section (2) of Section 3 of the Foreigners Act, 1946, was extended to the Superintendent of Police and Deputy Commissioners under the Govt. of Assam. This was followed by the entrustment of such a power by the President vide Notification No. 14011/13/75-F.III dated 17.02.1976 by virtue of under clause (1) of Article 258 of the Constitution. This was however, subject to the various conditions.[2] The power of issuing orders for detention, however, was not entrusted and yet has been exercised wherein movement of foreigners is being curtailed and they are being placed in foreigner wards in jails or detention centres. This is in conformity with the Madras High Court judgement dated 21.09.2007 in Habeas Corpus Petition No. 1138 of 2006 titled Latha v. Public Department and Innocent v. State of Goa(which later reaffirmed this judgement)wherein it was deemed permissible for the state government to act under delegated powers under Section 3(2)(e) in keeping a foreigner in a detention camp.

Since there is immense administrative control without any definitive statutory grounds based on which deportation can take place, the State has often tried to pass arbitrary orders. For instance, in Kamil Siedczynski,[3] the State issued a Leave India Notice to a Polish student studying in West Bengal for participating in a protest against a new Indian legislation. The Court held such an order to be null and void, since it was arbitrary and without any reason. The Court held that the student was on a valid visa, and merely protesting against the State does not warrant a deportation.

Additionally, The State does not enjoy unfettered discretion to expel any foreigner. Article 21 of the Indian Constitution allows for the deprivation of life and liberty only on the basis of procedure established by law. The deportation of any foreigner must be in compliance with Article 21 and other international principles. A deportation order must be assessed by the courts to be just, fair, and reasonable as interpreted by Article 21.[4] A deportation order restricting the stay of a foreigner must also be proportionate to the end goal that it seeks to achieve.

Few principles in domestic and international law act as safeguards against the deportation of foreigners. For instance, Article 33 of the 1951 Refugee Convention talks about non-refoulement, which means that no State can send foreigners back to the place where they may face the risk of persecution. India has often argued that it has no obligation to comply with the non-refoulement principle since it is not a signatory to the 1951 Refugee Convention. Nonetheless, India must abide by the non-refoulement principle while deporting foreigners as the principle has evolved to be a part of the customary international law and is embedded in several other international instruments to which India is a signatory.

Deportation and detention run hand in hand. Section 3(2)(g) of the Act empowers the State to make orders in relation to the arrest and detention of foreigners. Foreigners awaiting deportation, individuals who do not possess documents, or foreigners whose nationality cannot be determined are kept under detention. Detention is justified by the State on grounds that Article 19 is not applicable to foreigners.[5]

Furthermore, the actions of the government actors flout procedure when detaining individuals under the pretence of them being foreigners. As per Section 4(2) of the Act, every officer making an arrest under Section 4 shall, without unnecessary delay, take or send the person arrested before a Magistrate having jurisdiction in the case or to the officer in charge of the nearest police-station and the provisions of Section 61 of the Code of Criminal Procedure, 1898, (5 of 1898) shall, so far as may be, apply in the case of any such arrest. The same is not undertaken in the initiation of proceedings or competition of proceedings before the FTs.

Foreigners are detained for prolonged time periods due to lack of proper deportation procedures. Deportation can only take place when the receiving country is willing to accept the alleged foreigner. In several cases, foreigners are detained indefinitely as no other countries are willing to accept them. Many alleged foreigners claim to be Indian citizens, but are not able to challenge the decision of Foreigners’ Tribunals. This implies that several Indian citizens may have been wrongfully termed as foreigners and in the absence of any challenges, they still remain under wrongful detention. This runs contrary to the principles enshrined in Article 21 of the Indian Constitution and Articles 9 and 14 of the ICCPR by virtue of which every individual, irrespective of their nationality, deserves a fair trial and has a right to approach the courts.[6]

It is to be noted that the power of detention enshrined in Section 3(2)(g) and Section 4 were deleted from the Foreigners Act vide the Foreigners Amendment Act, 1957 after the then Attorney General of India, Mr. MC Setalvad, conceded to its lack of compliance with Article 21 and Article 22 of the Constitution in the case of Hans Muller of Nuremberg v. Supdt. Presidency Jail, Calcutta, (1955) 1 SCR 1284. Such power was reintroduced by virtue of an amendment in 1962 in light of the war with China. It was via an amendment in 2013, that this power was addressed in Paragraph 3 of the Foreigners (Tribunals) Order, 1964.

Additionally, courts have looked down upon indefinite detention, since it runs contrary to Articles 14 and 21 of the Constitution.[7] In Hussainara Khatoon,[8] the Court spoke about pre-trial detention and stated that “a procedure which keeps such large numbers of people behind bars without trial for so long cannot possibly be regarded as ‘reasonable, just or fair’”. Additionally, the courts, in the case of State of Assam v. Moslem Mandal, (2013) 3 GLR 402stated that there is a limitation of 2 months for the duration of how long a foreigner may be detained.

The detention of foreigners is administrative in nature. These foreigners have not committed any penal offence; therefore, they are placed in detention centres awaiting deportation. Even if convicted of a penal offence, they are placed there after completing their sentence. Foreigners in detention centres must be treated with dignity. Unfortunately, the condition of these detention-centres is highly appalling as they fail to provide the detainees with proper food, water, hygiene, healthcare and other basic facilities.[9] This runs contrary to the hearing in Santanu Borthakur v. Union of India, tagged with W.P. (Crl) 7/2020 titled Abantee Dutta v. Union of India.The courts, vide Order 07.10.2020, observed that foreigners could not be held in jails and that the detention centres created by state government is in compliance with the standards stipulated by the central government.

The Act, first, ought to make a clear distinction between all categories of non-citizens. Further,  it needs to mention definitive grounds based on which deportation can take place. In the absence of such grounds, the administration enjoys too much leeway in administering deportation orders. Most importantly, alleged foreigners cannot be made to live in inhuman conditions within these detention-centres for an indefinite time period. Foreigners ought to be governed by a regime of rights, where they are granted all the necessary facilities within the detention-centres. A foreigner enjoys all rights as mentioned under Article 21. The government and the local-administration should be the first points to ensure the well-being of all foreigners.    

SUGGESTED READINGS:


Solving a Trilemma — The Way Forward for the NRC

This is a guest post by Alok Prasanna Kumar. He is the Co-Founder and Lead of Vidhi Karnataka. His areas of research include judicial reforms, constitutional law, urban development, and law and technology. He has also previously practised in the Supreme Court and the Delhi High Court.

The preparation of the National Register of Citizens (NRC) for the State of Assam, carried out under the supervision of the Supreme Court of India — between 2014 and 2019 — has been a source of much anguish. Not just for the tedious procedure it involved, but also the eventual consequences on those left out of the list. Out of Assam’s estimated population of 3.3 crores, 3.1 crore, or so, were included in the list; but approximately 19 lakh people were left out. There is no legal certainty for the residents of Assam who have been left out of the NRC.

Merely being excluded from the NRC does not amount to cancellation or loss of citizenship. That can only be done by the Union Government on the recommendation of the Foreigners’ Tribunal under the Foreigners Act 1946. The Foreigners’ Tribunal, set up under the Foreigners (Tribunals) Order, 1964   can, on the basis of evidence before it, render its opinion that someone is a “foreigner”, and, therefore, not a citizen.

Those left out from the NRC are in a state of limbo — being persons whose citizenship status is now in doubt. Section 9 of the Foreigners Act places the onus of proving citizenship on the person whose citizenship is in question. Failing to do so will render the person stateless unless they can show some connection to  another country (under Section 8 of the Act) – which might not be possible for most since there is little hard evidence to connect them with any country beyond. What the NRC has done is create a population of 19 lakh trishankus — the figure from Hindu mythology who was unwanted, both in heaven and on earth, and therefore suspended upside down between the two realms.

Following the publication of the NRC in August 2019, things have remained at an uneasy status quo. Neither the Union Government, the Assam State Government, nor the Supreme Court has charted a clear way forward. There have been attempts to “reverify” the NRC but they have come to nought. A recent effort was made to remove more names from the NRC but the same is under challenge in the Supreme Court.

As it stands, the only path that seems obvious is the one of inertia — as the law stands, simply being left out of the NRC does not cancel one’s citizenship. A Foreigners’ Tribunal has to adjudicate on the merits of each person’s case before arriving at that conclusion. Is the judicial route —  often the path of least resistance in India — an appropriate way to address the future of the 19 lakh persons left out of the NRC?

The task of addressing the citizenship claims of 19 lakh people before a Foreigners’ Tribunal is a gargantuan one. To give some perspective: the total number of cases referred to the Foreigners’ Tribunals between 1985 and 2019 (over 34 years) was 4,68,905. In 2018, the last year for which complete data was available, only 14,552 cases were disposed of by the Foreigners’ Tribunals in Assam. Needless to say, at the present capacity, FTs are woefully ill-equipped to handle 19 lakh cases, in any reasonable period.

Implicit in the discussion about the people left out of the NRC, so far, has been that:  a lot of genuine citizens have been left out of the list, for a variety of reasons. If we assume that approximately half the people on the list can prove, in some manner, that they are in fact citizens of India, that still leaves nearly 10 lakh people who are now rendered stateless.

But, they are not entirely without remedy —  they can still approach the Gauhati High Court, through a writ petition, and challenge the order finding them to be non-citizens. Even assuming that only half of the persons rendered stateless may have the resources or the capacity to approach a higher forum, this would mean, about, five lakh cases flooding the Gauhati High Court, over a period of time. For a Court that, as on date (according to the NJDG portal), has only about 52,000 pending cases, this is a veritable tsunami it will be unable to handle. Even if the cases are staggered over ten years, it would amount to more than double the annual number of cases filed in the High Court!

The judicial process is not going to provide any clarity, in any reasonable period of time, to those left out of the NRC. Rather, it is likely to compound their misery as the financial, emotional and psychological costs of litigation will take a severe toll on them. 

Should, then, the NRC be junked as a whole?

There is one school of thought that argues that the entire NRC exercise is entirely illegal and unconstitutional. One argument is that the NRC, sought to be done under the Registration of Citizens and Issue of National Identity Card Rules 2003, is contrary to the Citizenship Act 1955, and therefore ultra vires. There is also the argument that contends: creating a separate citizenship regime for residents of Assam would be unconstitutional. The latter question especially, in so far as Section 6A is concerned, is pending adjudication in the Supreme Court, before a Constitution Bench.

This certainly raises the question as to why the Supreme Court proceeded with overseeing the NRC exercise when fundamental questions about its legality and constitutionality were pending. The Supreme Court itself has clarified that the NRC updating exercise will be subject to the orders in the pending challenge to the constitutionality of Section 6A and other provisions relating to citizenship, applicable only to Assam.

If the SC upholds the validity of these provisions then the present (unsatisfactory) status quo, continues. If the Supreme Court does not — and the entire NRC is held to be unconstitutional — it will not necessarily address all the problems.

Leaving aside what it means for the institutional credibility of the Supreme Court or the sanctity of the Assam Accord —  there is also the fact that the NRC has provided a measure of security to those who were included in it, from accusations of being “outsiders”. The fact that those who were accused of being “outsiders”, solely by virtue of their religion or language, are more confident of their status has become the basis for dismissing the NRC as “flawed”! There is no guarantee that a fresh NRC will in any way provide a solution to the problems of those included and those left out without causing an increased burden to all the inhabitants of Assam, once again. The existing procedure was traumatic for the economically vulnerable, and inflicting it on them again would not serve any purpose; it will only recreate an unhappy status quo.

The NRC itself is not a recent judicial or legislative innovation. Demands for its updation precede the Assam Accord itself, and it was intended to address concerns of indigenous people and native Assamese about the large-scale influx of people from Bangladesh (mostly illegally), and what that might do to the cultural and demographic character of the State. It would not behove anyone (let alone a savarna mainland Indian such as myself) to simply dismiss such concerns as “ethno-fascism” or xenophobia.

The demand for an NRC has its origins in the immediate aftermath of India’s chaotic partition — in 1947 — when peoples left their homes in panic, unsure of whether they will end up in Muslim-majority Pakistan or Hindu-majority India. Assam, which has historically seen the movement of peoples from what is now West Bengal and Bangladesh, was faced with an influx of people — in a manner that threatened to completely change the demographic and indigenous character of the state. The worries of both the native Assamese and the Bengalis, who had come over from what would eventually become East Pakistan, are reflected in the representations sent to the Constituent Assembly and the then Central Government on the question of citizenship. At the same time, there were Bengalis who had been living in Assam for generations who did not wish to be caught in this conflict over identity and citizenship and also sought the protection of the Government. The solution proposed was the National Register of Citizens, which was first prepared in 1951.

When the Assam Accord was signed in 1986, the Indian government shifted the cut-off date to 1971, effectively putting to rest the citizenship status of those who had come to Assam before that. Even for those who had entered the country illegally — between 1966 and 1971 — a process was provided for them to become citizens, with a few limitations on exercising franchise. This was reflected in Section 6A of the Citizenship Act. A total scrapping of Section 6A might, therefore, jeopardize the rights of even those who have benefited from it, and unravel the Assam Accord.

Here then is the trilemma which presents itself —  how to chart a path forward, with respect to the NRC, that addresses the human rights of those left out of it, without unsettling the rights of those already on the list, or scrapping a key part of the Assam Accord, which embodies a key demand of native Assamese and indigenous people of the region?

One way out of this is to offer a path of full citizenship to the individuals left out of the NRC, without fundamentally altering the demographics of the State of Assam, or disturbing the rights of anyone already deemed a citizen under the NRC. This would be a one-time measure available to those who sought inclusion in the NRC and did not get it. It would not be available to those who entered India illegally after August 31, 2019. Such a measure is already on the books in Section 6A of the Citizenship Act.

However, this does not fully address the concerns of genuine citizens of India who have not been able to get enlisted in the NRC. For them, the appropriate solution would be to widen the set of proofs; and the manner in which they can show residency, parentage, et al in a manner that would conclusively show their citizenship. The present list of documents permitted, to show proof of citizenship, is in no way exhaustive of the ways in which one can prove one’s citizenship in accordance with the Citizenship Act, 1955. Further, it privileges documentary evidence (a significant barrier) over oral and other evidence which are just as valid in law and might be easier for people to produce. It has to be kept in mind that citizenship is a legal fiction that comes into effect after certain facts are established and establishing these facts should not become an ordeal.

This should be offered as an option. Those who are confident of being able to prove their citizenship should be allowed to do so. Those, however, who are not going to be able to, for whatever reason, should be offered a pathway to citizenship.

A caveat is necessary here — the NRC and its fallout is the result of social and political processes more than a hundred years in the making. From colonial administrations which saw Assam as no more than a place to grow tea and extract oil to Hindutva right-wing parties looking to divide the state on religious lines for political ends — Assam has seen much turmoil and disturbance over the issue of immigration and ethnicity. Even as the Constitution of India attempted to give clarity on issues of citizenship across the country, this question was left unresolved in the context of Assam. Yet, the Constitution lays down certain principles that can guide us out of this thorny thicket and find a way out to protect the future of those left out of the NRC.