By: Venkata Supreeth
For two consecutive terms, one of the main agendas of the Union Government has been the update of the National Registry of Indian Citizens (hereinafter ‘NRC’) in the State of Assam, and the deportation of illegal immigrants. The purpose of the NRC is to identify and separate bona fide Indian citizens from immigrants who’ve illegally entered the country. The exercise, being supervised by the Hon’ble Supreme Court of India, has been one of the biggest and most sensitive bureaucratic activities to be undertaken by any modern state. A minor aberration can result in a person and/or his family being deprived of Indian citizenship, thereby losing their rights and constitutional safeguards. The three-staged plan of updating the NRC has reached its final stage, amidst the vociferous political and legal furore over the objectivity and efficiency of the exercise. Close to 40,000 employees from the State of Assam were engaged to identify valid citizenship claims over a period of five years in accordance with the guidelines laid down by the Apex Court vide its interlocutory orders. The draft list of the NRC has excluded over 4 million names of current inhabitants, who were provided with appellate relief before the Foreigners Tribunal as well as the High Court and the Hon’ble Supreme Court. Once the final list has been verified, the Union and State governments are entrusted with the task of detection and deportation of illegal immigrants. In the wake of the Central Government’s proposal to implement a nation-wide NRC programme, it is imperative to understand the legal context as well as the history of the exercise to appreciate the full extent of its implications.
HOW IT ALL STARTED: THE LEGAL QUESTIONS POSED BY A POLITICAL PROBLEM
The State of Assam, originally a part of the Burmese territory, was ceded to British India, which in turn became a territory of the Union of India post-1947, sharing a border with East Pakistan (sic Bangladesh). The partition and political instability in East Pakistan in the succeeding years saw a continuing trend of immigration to the valley areas, which gave rise to tensions between the natives and the immigrants. Post-1947, the issue of the influx of Bangladeshi illegal immigrants in large numbers has been raised, primarily revolving around land disputes and cultural/ethnic clashes. Many such immigrants also had their names enrolled in the 1967 electoral rolls, thereby leading to a serious constitutional compromise.
The issues have been echoed in New Delhi when several political fronts called for strict action against illegal immigration and stringent border security measures. The agitations led to the culmination of the Assam Accord and a subsequent amendment in 1985 introducing Section 6(A) to the Citizenship Act 1955.
In essence, the said provision recognises all inhabitants who moved into Assam before 1st January 1966 as Indian citizens. For those immigrants who moved in between 1966 and 1971, whose citizenship claims were still under scrutiny before the Foreigners Tribunal, the accords allowed for a grant of citizenship, subject to a ten-year disenfranchisement. Illegal immigrants who have entered Assam after 24th March 1971 are to be detected and deported.
During the culmination of the Assam Accord, the Parliament of India passed the Illegal Migrants (Determination by Tribunal) Act of 1983 (hereinafter ‘IMDT Act’). The Act came under severe criticism for inefficiency and dismal rates of deportation, in contrast with the rates in adjoining north-eastern states who are also facing the problem of illegal immigration. The core feature of the IMDT Act was to place the onus of proving or disproving citizenship claims on the Tribunals (as opposed to the person claiming citizenship) constituted under the IMDT Act. Furthermore, the Act doesn’t prescribe any penal provision for non-compliance with the tribunal directives. Hence, whenever a person is been brought under scrutiny, s/he could move to a separate district, thereby evading the identification procedure. The Act was struck down on constitutional grounds in 2005 in the case of Sarbananda Sonowal v. Union of India (hereinafter ‘Sonowal judgment’), wherein the petitioners alleged that Article 355 of the Constitution was being violated in operation of the IMDT Act, whereby the Union is failing in its constitutional duty to protect the states against aggression. In this case, illegal immigration was held to be a form of aggression affecting the very character of the state in question.
The issue of the NRC was again put forth in the case of Assam Public Works v. Union of India, wherein the petitioners sought the implementation of the provisions of the Assam Accord to impact the deportation of illegal immigrants. It is at this juncture that the Hon’ble Supreme Court in 2014, by its bench constituting Justice Nariman and Justice Gogoi (now the Chief Justice of India), passed the order directing the State of Assam to commence the updating process of the NRC to identify and distinguish citizens from illegal immigrants. The NRC is to include the names of those persons whose names featured in the electoral rolls until 1971. The Hon’ble Supreme Court has exercised supervision over updating the NRC by means of working the modalities and constitution of tribunals to adjudicate the claims, as well as setting guidelines for the same.
HOW THE BUREAUCRATIC MACHINE WORKS
Section 3(2)(c) of the Foreigners Act, 1946 vests the Central Government with the power to deport illegal immigrants. The definition of the term ‘illegal migrants’ can be found in Section 2(1)(b) of the Citizenship Act, 1955. The Act recognises three kinds of illegal migrants;
- Those who entered into India with a valid visa and have overstayed,
- Those who entered into India with invalid documents
- Those who entered surreptitiously.
The first NRC was created at the behest of the orders of the Ministry of Home Affairs in the year 1951 by the Census of India; this was done in accordance with the operation of Immigrants (expulsion from Assam) Act of 1950 to provide safeguards to native inhabitants against the huge influx of immigrants post-partition. Post the striking down of the IMDT Act, The Foreigners Tribunal Order of 1964, constituted under the 1946 Act was revived to be the mode of determination of citizenship.
The NRC plan involves citizenship claimants filing either of the two kinds of documents. List A contains the legacy papers or ten acceptable documents, which establish the domicile of the claimant and his/her descendants in the state of Assam, issued prior to 24th March 1971. List B contains the linkage papers which are seven acceptable documents which link a claimant to a person whose name featured in the records up to 1971 or in the NRC of 1951.
NRC AND STATELESSNESS: THE INTERNATIONAL LAW POSITION
With reference to the Sonowal Judgment in 2005, in the case of Assam Sanmilita Mahasangha v. Union of India, the Hon’ble Supreme Court has reiterated its order to the Central Executive to commence diplomatic dialogues with Bangladesh and enable its consuls to visit the detention centres to ascertain the nationality of those whose Indian citizenship claims have been rejected. In order to achieve the stated objective of expelling infiltrators, the Ministry of External Affairs must acknowledge and present the problem to the Bangladeshi counterparts, who have maintained an official position that the persons declared ‘illegal immigrants’ in Assam have no links to Bangladesh. Yet in such cases where nationalities of the detainees are not confirmed, they may be condemned to prolonged and uncertain detention as well as statelessness.
India is not a signatory to the dual conventions of the United Nations High Commissioner for Refugees (hereinafter ‘UNHCR’) of 1954 (Status of Stateless Persons) and 1961 (Reduction of Stateless Persons) both recognising a person’s right to nationality and aimed at the eradication of statelessness. Nevertheless, India owes certain obligations as a signatory to the Universal Declaration of Human Rights (hereinafter ‘UDHR’). Article 15 of UDHR establishes nationality as a fundamental right of every person. Further, India is a party to the International Convention of Civil and Political Rights (hereinafter ‘ICCPR’) wherein Article 12 protects the right of every person to enter his own country, the interpretation of which shall also include the class of persons whose nationality has been stripped by the operation of domestic law. Further, Article 24 of the ICCPR recognises the right of every child to acquire a nationality.
What is pertinent to note is that till date, the Indian Government has maintained a silent stand on the status of the bilateral discussions with the Bangladesh Government on the issue of repatriations and deportation of illegal immigrants. Amidst the talks of deportation, the fate of Bengali-Muslim communities was thrown into deep uncertainty as they are at a higher risk of marginalisation by the virtue of their minority status. The UNHCR communique by five senior officials of the United Nations sought the government’s response over bureaucratic apathy and disregard for fair procedure and due process in the registration and adjudication of citizenship claims.
Since its inception, the idea of NRC has been perceived as a necessary evil to arrest the problem of infiltration. However, the Government’s attempt to erase the results of decades of negligence at the eleventh hour can lead to serious consequences. India does not have a policy framework or an official course of action pertaining to the detainees who are excluded from the NRC. It poses a bilateral problem with Bangladesh as well as a geopolitical crisis, adding en masse to the growing list of stateless persons in the South-east Asian region. The brunt of this bureaucratic exercise is borne out by the marginalised and weaker communities, the likes of Bengali-Muslims and women who have fewer or no means to establish their identity before the tribunals. Overnight, scores of citizens may become ‘permanent temporaries’ who are at the mercy of the state and hang dry until appellate relief can be granted. Another issue leading to widespread criticism is the denial of fair hearing and subversion of the due process that is to be followed in the adjudication of citizenship claims. Domestically, the legal basis for the implementation of the NRC is to protect the territorial sovereignty of the State of Assam, a constitutional duty of the Union under Article 355. However, in the wake of the proposed amendment to the Citizenship Act exempting Non-Muslim minorities from undivided India before 1947 which stands as a cause of concern as the move is no guarantee for the preservation of the Assamese cultural and ethnic identity. The ramifications of a Nation-wide NRC programme are yet to be debated.
Internationally, in the absence of a diplomatic framework or a Memorandum of Understanding pertaining to the deportation of illegal immigrants, those deemed to be such would be staring at internment at detention centres which are yet to be established until definitive steps can be taken. The process is mired in excessive judicial interference, bureaucratic obscurity and procedural abuse.
(Venkata is currently an undergraduate at Gujarat National Law University, Gandhinagar.)