In a previous article, I discussed the phenomenon of Indian citizenship and its historical and theoretical trajectory. Here, I look specifically at the National Register of Citizens (NRC) and the Citizenship Amendment Bill (CAB) in light of Bangladeshi migration to various parts of India.
History
The phenomenon of migration from East Pakistan to Assam dates back as far as the 1800s, when Assamese tea plantations were a major pull factor for settlers, and continued after the “sloppy surgery” of India’s Eastern border by Cyril Radcliffe. After the creation of the Bangladeshi state, motivations of migrants have been mainly economic, but have also included overtones of culture, communalism, persecution, and climate change.
The migration of Bangladeshis to West Bengal has historically been better tolerated than in Assam due to cultural and linguistic similarities in the latter state. In large parts of West Bengal, Hindus entering the country have been provided fake legal documentation by political parties; as their presence increased, they became a crucial part of vote bank politics in certain Bengali border towns.
In Assam, however, this has always been a controversial issue, raising several concerns about economic and social security. The state saw a seven-year-long agitation against “foreign migrants” led by the All Assam Students Union (AASU). During the 1983 elections, the demonstration heightened and saw brutal violence, including the killing of more than two thousand Bengali Muslim settlers in what is known as the Nellie massacre.
As a response to the demands of the Assamese people, the Indian government under Indira Gandhi enacted the Illegal Migrants (Determination by Tribunals) Act (IMDT Act) which claimed to establish Tribunals to fairly determine whether or not a person is an illegal migrant in India.
The main drawback of the IMDT Act was that it was only contextualized to Assam, while the rest of the states were still to try illegal migrants under the 1946 Foreigners’ Act. According to the IMDT Act, foreigners were only defined as those who “entered and settled in Assam after 24 March 1971”. Apart from this, while the Foreigners’ Act put the onus of proving Indian citizenship on the prosecutor, the IMDT Act shifted this power to the accused. Therefore, there was a high scope of bias, given that many migrants were in possession of fraudulent documents in any case.
Of the five Tribunals that were set up under the IMDT, there were 4,23,021 registered cases of which only 65,000 cases were actually dealt with. From these, only 1,538 people were successfully deported as of 2005. The Supreme Court of India recognized the failures of the Act, despite its support from the AASU. In the 2005 judgment of Sarbananda Sonowal v Union of India, the SC struck down the IMDT Act, deeming it unconstitutional.
Following this judgment, many local groups in Assam felt that the SC had demeaned the efforts of state parties and the Tribunals. These parties have been fighting elections based on this issue for a few decades, and along with the Asom Gana Parishad, the ruling Bhartiya Janata Party (BJP) has reintroduced the idea of Tribunals in a big way with the implementation of the NRC.
The NRC is the official register that contains the names of all Indian citizens. The update, which has been implemented in Assam, is a process that enlists the names of those people and their descendants whose names appeared in certain admissible documents such as Electoral Rolls till the midnight of 24 March 1971. The update was made according to the Citizenship Act, 1955.
What Now?
In the final NRC list, which was released on 31 August 2019, around 40 lakh people were excluded, from which the appeals of 19,96,657 people have been rejected. The most vulnerable groups to be excluded from the NRC have been found to be Bengali namasudras (a sub-caste of Dalits) and poor and working-class Bengali Muslims.
Amid protests from the RSS over the exclusion of lakhs of Bengali Hindus in the final NRC list, Home Minister Amit Shah has reassured the public that such individuals can be protected under the Citizenship Amendment Bill, 2019. The Bill includes a new clause, where “persons belonging to minority communities, namely Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan” would be granted Indian citizenship.
Activists and social reformers have termed this proposition as “communally motivated humanitarianism”, since not only does the Bill potentially exclude hundreds of thousands of Bangladeshi and Pakistani Muslims, but even political asylum seekers and refugees such as the persecuted Rohingya Muslims from Myanmar. Many BJP critics believe that the passing of the CAB would tacitly legitimize ethnic cleansing.
It has been stipulated that the government will pass the CAB during the winter session of the Parliament this year, but the details of how they plan to intertwine it with the NRC are still ambiguous. Raul Johnson, an environment and RTI activist based in Guwahati, believes that the passing of the CAB will leave the NRC in limbo and render it useless as it would grant citizenship to non-Muslims and reduce the naturalization requirement of these people to six years.
To manage those who are no longer on the NRC (perhaps once the CAB is passed and the NRC list is revised) authorities are constructing detention centres and camps to confine foreigners. They have authorized the establishment of 11 camps in Assam, including one in Goalpara which aims to house around 3,000 people. Large internment camps are also being set up in other parts of the country, including Maharashtra, since the BJP plans to roll out a nationwide NRC to fulfil their ambitious promise of weeding out all illegal aliens by 2024.
Strangely, all stakeholders in Assam have expressed their reservations about those who were counted and left out from the list, including the AASU and others who filed the Public Interest Litigation in the SC for the preparation of the Register. Ranjeet Kumar Dass, the Assamese party president of the BJP, said, “We do not trust this NRC. We are very unhappy… Many people with forged certificates were included.” To placate this opposition, the Centre has given those left out from the NRC an additional 120 days to prove their ancestry in Foreigners’ Tribunals (FTs)
Given the failure of FTs in Assam in the past, it seems unlikely that authorities will be successful in determining who stays and who does not, since barely any changes have been made to their provisions or functioning. While FTs were initially supposed to be presided by retired senior judicial officers, even lawyers and civil servants with only seven years' experience can undergo a two-day orientation course and be appointed as FT members. Therefore, the over-reliance on such quasi-judicial courts could result in unfair verdicts, especially since the number of FTs is disproportional to the number of cases being presented.
Furthermore, FTs are independent of the NRC as they are governed by the 1946 Foreigners Act — this means that FTs must declare individuals as foreigners since exclusion from the NRC does not guarantee them that status. Hence, those excluded in the Assam NRC are not technically deemed foreigners yet.
Between 1964 and today, only around 25 percent of foreigners (as determined by FTs) have been successfully deported, while information on those who remain stateless is limited. This is unsurprising, as India has been reluctant to fully ratify or incorporate the 1954 and 1961 United Nations Conventions on Statelessness into domestic legislation. Despite advances in international law to protect the rights of stateless people, Indian citizenship laws have repeatedly flouted various clauses of the Conventions.
Filippo Grandi, the UN High Commissioner for Refugees, has called upon the Indian administration to refrain from deporting or detaining those whose nationality has not been verified through due process. In his statement on the NRC, Grandi said, “Any process that could leave large numbers of people without a nationality would be an enormous blow to global efforts to eradicate statelessness.”
The status of the Assamese NRC is very ambiguous as of now. The past few months have seen major changes in leadership, with the NRC coordinator Prateek Hajela being transferred to his native state of Madhya Pradesh. The Supreme Court bench that ordered his transfer has not specified the reason or cause for it, while the Assam government seems to have a lukewarm enthusiasm in selecting his successor.
There are numerous important questions that remain unanswered in the NRC processes — will people be deported or rendered stateless? What would be the status of children born in Indian territory to those that have already been left out of the NRC? What about those who did not apply for registration at all?
The NRC that has been prepared for Assam cannot be replicated in other states due to their vastly different histories, ethnicities, and geographies. The biggest challenge for the Union government would be to settle on a common cut-off date for a nationwide NRC. Under Article 6 of the Constitution, the cut-off date for Pakistani migrants to India was 19 July 1948 and it is likely that this would be extended to the rest of the country even though it only pertains to states in the North and West. However, the CAB sets a cut-off date of 31 December 2014 for providing citizenship to non-Muslim ‘refugees’, and if passed, this would be Central legislation. There is a dire need for more clarity on specific provisions of the NRC and the workings of the FTs before speculations create panic among the citizenry.
Reports from Narendra Modi’s recent meeting with Sheikh Hasina suggest that the Bangladeshi leader seems to be appeased with Modi’s promises. The understanding seems to be that there will be minimal to no deportation carried out. Yet, it is extremely crucial that officials reveal details of how the Indian state plans to deal with those left out of the final NRC, whether they will be stateless or deported, and what the government plans to do with those in these internment camps. Unless such questions are officially addressed, the issue of human rights and human security of tens of lakhs of people remain to be a major concern.
References
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NRC an Enormous Blow to Global Efforts to Eradicate Statelessness: UN Refugee Body Chief. (2019). Retrieved 1 November 2019, from https://www.news18.com/news/india/nrc-an-enormous-blow-to-global-efforts-to-eradicate-statelessness-un-refugee-body-chief-2293031.html
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Image Credit: The Telegraph