Gursimran Kaur Bakshi, a fourth year student, honours in Public International Law from NUSRL

The NRC Exercise

With the publication of the final updated list of National Register of Citizens (‘NRC’) on 31st August by the Government of Assam, the lives of many people are dependent on what looks like an unprecedented humanitarian crisis. The final list concludes the five-year exercise monitored by the Supreme Court of India at the cost of approximately Rs. 1,200 crore. It excludes approximately 19.07 lakhs people from Indian citizenship, declaring them illegal immigrants, and thereby rendering them stateless in their own country.

The illegal immigration from Bangladesh

The NRC exercise is a consequence of illegal immigration from Bangladesh to Assam and has to be viewed against the backdrop of history and present realities. The liberation of East Pakistan (present-day Bangladesh) from Pakistan led to a plethora of changes. Initially, the migration from Bangladesh was by those belonging to the minority Hindu population, who feared religious persecution in the newly liberated nation.

Later began illegal immigration by the Muslim population of the nation due to economic reasons. The unabated large-scale illegal immigration from Bangladesh disturbed the demographic structure of Assam. According to the census report of India, Assam’s average decadal population growth rate was 23.95% from 1901 to 1971 against the all-India average of 12.9%. It reduced the Hindu population of Assam to a minority. Accordingly, to safeguard the rights of the Hindu minorities while at the same time to initiate the deportation of Muslims back to Bangladesh, the Immigration and (Expulsion from Assam) Act, 1950 (‘The Act’) was enacted.

The Assam Accord

The Act could not safeguard the religious, cultural and linguistic identity of the people of Assam against the silent demographic invasion, consequently leading to Assam agitation and Nellie massacre , killing more than 2000 people, mostly Bengali Muslims. As a consequence of this, the Assam Accord (Memorandum of Settlement) (‘The Accord’) was signed between the Government of India and the State Government of Assam in 1985 with the aim of detecting and deporting the illegal immigrants (referred to as ‘foreigners’ in the act) from the state.

The NRC list published in 1951 for the first time was based on the census report of India. It included the people who were the accepted citizens of India before the signing of The Accord. But The Accord mentioned January 1, 1996 as the base year for the purpose of detection and deletion of foreigners. It declared the cutoff date to claim Indian citizenship as 24 March 1971. Those who migrated post 1 January 1996 to 24 March 1971 were detected in accordance with the provisions of the Foreigners Act, 1946 and Foreigners (Tribunal) Order, 1964.

The rules of The Accord were subsequently inserted through an amendment in the form of Section 6A in the Citizenship Act, 1955. Hence, most of the people who were declared citizens according to the 1951 NRC list became stateless post The Accord. This resulted in a prolonged agitation for updating the NRC list, and the Supreme Court had to intervene in 2015 in order to nudge the expedition of the process after the case of Assam Sanmilita Mahasangha.

The updation and verification process was carried out under the Citizenship Act, 1955. The first draft was partly published on 31 December 2017 and accordingly the full draft was published on 30 July 2018, excluding more than 40 lakh people out of approximately 3 crore applicants. The exclusion of people in huge numbers resulted in an outcry, whilst people complained of arbitrariness and lack of due procedure. Thereby, the re-verification was initiated to include the filing of claims and objections sanctioned by the Supreme Court.

Constitutionality of the Foreigners’ Tribunal

Post the publication of the final list, the challenges concerning the authorities are the constant monitoring of the people who have been excluded from the list, following up on their cases and sending those people who fail the legal proceedings to detention camps. The legal route that awaits the people is unpredictable and tiring. Those who are declared foreigners have the right to appeal to the Foreigners’ Tribunals (‘FTs’) within a time period of 120 days.

The applicants can also go against the order of the FTs by way of writ jurisdiction exercised by the High Court of the state or the Supreme Court of India. The court sitting in writ jurisdiction over an order of the tribunal can only exercise supervisory powers and parties are not entitled to introduce any new evidence. This implies that the powers of the court in this reference are limited to the report submitted by the FTs, even if the order passed by the latter was erroneous.

The constitutionality of the FTs can be challenged on the ground that the tribunal is not empowered to adjudicate on matters relating to the determination of citizenship. The Constitution of India under Article 323B empowers the legislature to create quasi-judicial adjudicating bodies/tribunal for a specific purpose and determination of citizenship does not find a mention in the article. The scope of adjudication on citizenship by the tribunal can only be created through an amendment in Article 323B or a separate legislation by the Indian Parliament.

Also pertinent to note here is that the Foreigners (Tribunal) Order, 1964 was promulgated by the central government through an order under Section 3 of the Foreigners Act, 1946. A tribunal is an ad-hoc and non-independent body which is empowered to create its own Constitution and to elect its own members – which is the fundamental problem. The inherent arbitrariness and lack of due process stems out of the fact that the members of the tribunal are not equipped to perform the judicial tasks bestowed upon them, as vestees of executive power. Rendering judicial decisions with such wide powers of discretion can adversely affect the rights of citizens. One would only imagine how disastrous the repercussions could be in case of wrong determination.

Under the Foreigners Act, 1946, the burden of proof in establishing citizenship status lies with the applicant and not the state, failing which the applicant is declared as a foreigner and is sent to the detention centre. Most of the applicants face the issue of lack of documents to prove their credentials. Others fail to establish a family tree so that they are not linked to the wrong legacy person as someone figuring in the legacy data comprising a set of documents, including the first NRC of 1951 and voters’ list up to March 24 1971. Hence, the case of genuine citizens disenfranchised as foreigners are quite frequent.

NRC process violates International Law

The NRC exercise violates Article 15 of the United Declaration of Human Rights, 1948 (UDHR) and Article 6 of the International Covenant on Civil and Political Rights, 1966 (ICCPR) as in this case, the cut-off date specified under the accord amounts to arbitrary deprivation. The condition of detention centers is deplorable and deprives a person of their basic human rights. The centers are located in six jails spread across Assam. Around 900 people are currently accommodated in the centers but it is safe to say that the centers lack the capacity to accommodate more than 2 million people. Moreover, the deplorable condition of the detention centers violates the right to live with human dignity recognizedunder Article 21 of the Constitution of India.

The centers signify endless captivity and are definitely not a safe place for children. In a report cited by Amnesty International in 2018, 31 children were declared foreigners and some of them had come at a tender age to captivity, without access to counseling.  Another report by the National Human Rights Commission (NHRC) on Assam’s detention centers underlined the need for caring for and protecting the children in the centers under the Juvenile Justice (Care and Protection of Children) Act, 2015. This marks a failure of India’s obligations under the United Nations Convention on the Rights of the Child, 1989 (UNCRC).

Conclusion

The final list is not conclusive as a non-obstante clause mentions that the power of exclusion can still be exercised by FTs as they deem fit and necessary according to the situation. The disputed citizens of Assam fear that an armed rebellion might occur as a result of deportation, a situation assumed to become worse than that in Myanmar or Kashmir .

Recently, more than 85 countries and international organisations took a pledge to tackle statelessness at a high-level meeting at UNHCR Geneva. At a time when the global front has come together to eradicate statelessness, the NRC exercise is unwelcoming.

Currently, India has neither signed a treaty with Bangladesh on deportation, nor is a signatory to any of the instruments on statelessness. However, it is imperative for India to abide by the human rights obligations enshrined in the Constitution and international treaties such as UDHR and ICCPR, along with other principles of customary international law.