Debarshi Chakraborty

Over the last few months, articles in the Indian press narrated the everyday stories of individuals being excluded from the National Register of Citizens (NRC) list. From the story of an army veteran to that of a significant national arts awardee, and of individuals who committed suicide on being excluded. Amidst the global turmoil surrounding migrant detention camps, a catastrophic human rights and humanitarian crisis has blown up in Assam. The NRC, an unprecedented bureaucratic drill, threatens to divest over 2 million individuals, leaving them stateless and deprived of any remedy.

To briefly contextualize this, Assam has a historically fraught relationship with the Indian State, connected with intricate questions of borders, ethnicity and cross-border migration. With colonial roots, and extending to India post-partition, political Assamese nationalism has been a source of constant tension, resorting to violence such as the 1983 Nellie massacre. Subsequently, the Assam Accord was signed in 1983, which induced much debate regarding ‘foreigners’ and what should be done to them.

Despite its severity, the issue has remained without consideration for many years. It has morphed and reinvigorated in the last decade to yield a rising tide of anti-immigrant sentiment and xenophobia. The plan is to warrant a register of citizens and those excluded from the register may be declared as foreigners, prone to deportation.

The aim of the drill, though onerous, is simple, according to the government. ‘Prove your citizenship’ – the burden is on the individual to be included in the citizens list – and if you do not, the State will omit those that are suspect, disregarding whether one has the means to prove their citizenship or not. An amendment to the Indian Citizenship Act, 1955 by virtue of the Assam Accord indicates that those included in the 1951 census, and who have migrated between 1966 and 1971 may be considered citizens, but those who migrated post-March 24, 1971 are to be considered as foreigners, left vulnerable to deportation. Deportation where? No one knows.

At the core of the issue lies the question of legality for people to navigate, many without resources to prove that they should be included in the list. The basis for inclusion in the register is to establish nexus to the 1951 census, electoral rolls, or establish ancestral links – all sketchy processes, and often problematic due to the lack of sufficient documents.

What is even more problematic is that this procedure has been urged and blessed by, with all due respect, the Supreme Court of India. It has been instrumental in filling the void created by the executives at times, denying remedies, and endorsing questionable methods of verification of citizenship, all camouflaged with confidentiality.

According to the initial plan, the Supreme Court had specified a timeline for completion of the list that was to roll out on July 31, 2019. However, on being requested by the government, the apex body allowed a month’s extension in light of precision. After the date on which the final list released, all those whose names have been excluded from the list are being suspected as foreigners and ought to appear before Foreigners’ Tribunals, to prove their nationality. Failure to prove nationality before these tribunals will occasion deportation. Assam already has 100 of these tribunals pre-existing, recently an announcement has been made for the establishment of 221 more tribunals. 

One should realise the multiple challenges facing the establishment and functioning of these tribunals: although the Guwahati High Court has announced a list of 221 individuals selected for appointment as members of Foreigners Tribunals, nonetheless, the lack of adequately trained judges could vitiate the exercise. The lopsided motivation to declare more individuals as foreigners is even more alarming. This seems to be a crucial performance indicator for the adjudicators, and in that case, why care about expertise? Another and possibly the most awful flaw in the procedure is the ability of third parties to raise objections against the inclusion of names on the list – possibly a conduit to another series of opaque bureaucratic drills. Lastly, those excluded from the NRC have a period of 60 days, ending October 31, 2019, to appeal. In the meanwhile, detention camps are already overcrowding with suspected individuals, regardless of the abysmal conditions of detention. 

At the heart of the issue lies the violations of a slew of international law obligations. It is nearly impossible to impart an exhaustive list of these violations, whereas, it would serve some purpose to recall a joint letter addressed to the Government of India on May 27, 2019 from the Vice-Chairman of the UN Working Group on Arbitrary detentions, and the Special Rapporteurs on Minority Rights, on Racism and Xenophobia, on Freedom of Expression, and Freedom of Religion.

The letter annexes a list of obligations under international human rights law that India must comport with, on account of its ratification of international conventions. These include obligations under the International Covenant on Civil and Political Right (ICCPR) – Article 12 concerning the rights of minorities, and Article 19 concerning the right to receive information as part of democratic processes. Fairness of the hearings should be in compliance with Article 9 and 14 of the ICCPR. The annex further refers to the question of statelessness brought up by the Special Rapporteur on Minority Rights. 

In particular, the flawed procedures, including the burden of proof being placed on the individual, lack of adequate legal representation, lack of appropriate judicial remedies, and the ability of third parties to file objections, play foul on the ICCPR. Besides, the conditions of detention are unacceptable. Many of the detainees have been in captivity for periods stretching to before the roll out of the NRC, that too in terrible conditions. This violates several obligations including under the ICCPR, Convention on the Elimination of All Forms of Racial Discrimination, Convention on all forms of Racial Discrimination Against Women, and others. 

On the count of statelessness and nationality, there are a few aspects pending examination. First, in relation to the right to citizenship, and the duty incumbent upon states not to create conditions of statelessness – as highlighted by the 1954 and 1961 Conventions on Statelessness. Although India is not a party to them, nonetheless, many of the rights fall within the ambit of the international human rights treaties mentioned above, which India is a party to. 

The second count relates to those who are refugees, as defined under international law, to whom the customary principle of non-refoulement would apply. However, it would not be advisable to argue non-refoulement exclusively, as the majority of the claims have arisen from long-term residents, who do not claim the status of refugees. Thus, solitary reliance on this attribute of international law may imply that all those excluded from the NRC are actually foreigners, regardless of their claim for refugee status. 

This state-sponsored process is sure to create statelessness in plenty. The danger of instability and violence cannot be overlooked. In fact, now what is amply clear is that a drill of a similar kind may be adopted for every other state, regardless of whether it shares international borders or are blemished by a history of migration – simply as a guise to proliferate xenophobia. Politicians of a particular variety are giving warm shoulder to Assam NRC as an exemplar for other states. The price of human misery associated with this drill is not merely unprecedented but also inconceivable. As the intensity of inhumanity builds up, we find ourselves in widespread statelessness.   

Source:The Times of India


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