Ijlpp Si - Nrc.pdf

ISSN-2394-2657

THE INDIAN JOURNAL OF LAW & PUBLIC POLICY

SPECIAL ISSUE 2019

IDENTITY, CITIZENSHIP AND NATIONAL REGISTER OF CITIZENS (NRC)

NEW DELHI INDIA

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THE INDIAN JOURNAL

OF LAW AND

PUBLIC POLICY

GOVERNING BODY

P RESIDENT Syed Tamjeed Ahmad

VICE-P RESIDENT Sidharth Arora Armaan Pratap Singh

ACADEMIC ADVISOR Dr. Ghulam Yazdani

EXECUTIVE MEMBER Prof. S.N. Singh

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THE INDIAN JOURNAL

OF LAW AND

PUBLIC POLICY

BOARD OF EDITORS EDITOR-IN -CHIEF Pranav Tanwar

CONSULTING EDITORS Ibad Mushtaq Akanksha Rai Aakash Chandran

SENIOR EDITORS

P UBLISHING EDITORS

Rishika Jain

Saurabh Pandey

Rajkanwar Singh

Sufiyan Siddiqui

SENIOR ASSOCIATE EDITORS Alina Masoodi

MANAGING EDITORS Shreya Shukla

Rahul Mohan

ASSOCIATE EDITORS Shivangi RuqaiyaTakreem

Ahmad Ammar Husain Aanis Khan

Karun Gupta vii

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BOARD OF ADVISORS 1. Prof. Amar Singh [Professor of Business Laws, Professor Emeritus (Law), Former Chairman, Dean & Director Committee, National Law University, Jodhpur] 2. Prof. Balraj Chauan [Former Vice Chancellor, Ram Manohar Lohiya National Law University, Lucknow] 3. Prof. Seshan Radha [Professor of Economics, National Law University, Delhi; Visiting Scholar, Yale Law School, U.S.A] 4. Prof. (Dr.) Pablo Mednes de Leon [Professor of Law, Leiden University, Netherlands; President European Air Law Association] 5. Prof. (Dr.) G.S. Bajpai [Registrar, National Law University, Delhi] 6. Prof. S.S. Jaswal [The Registrar, NLU Shimla; Student Advisor of Commonwealth Legal Education Association (Asia- India)] 7. Prof. Dr. Vesselin Popovski [Vice Dean of the Law School; Executive Director of the Centre for UN Studies, O.P. Jindal Global University] 8. Mr. Jai Dehadrai [Founder & Managing Partner – Dehadrai& Company; Standing Counsel Supreme Court of India, Government of Goa] 9. Mr. Jyotendra Mishra [Senior Advocate, Lucknow High Court; Former Advocate General, Uttar Pradesh] 10. Ms. Kirthi Jayakumar [Author and Founder of The Red Elephant Foundation, India] 11. Mr. Sheikh Mushtaq [Former Bureau Chief, The Reuters (Jammu & Kashmir)] 12. Prof. Furqan Ahmad [Professor of Law, The Indian Law Institute, New Delhi] 13. Prof. Eqbal Hussain [Professor of Law, Faculty of Law, Jamia Millia Islamia] 14. Prof. S.N Singh (Retd.) [Department of Public Administration, University of Lucknow, Uttar Pradesh] 15. Prof. D.K. Bhatt [Professor of Law, Kumaon University, Nainital] 16. Dr. R.C. Kataria [Former Member, Central Pollution Control Board] 17. Dr.Shaila Parveen [Associate Professor, Faculty of Social Work, M.G. Kashi Vidyapith, Varanasi; Co-ordinator, Ford Foundation] 18. Dr. Aisha Ahmad Sharfi [Assistant Professor of Law, Alliance University, Bangalore]

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CONCEPT NOTE The Indian Journal of Law and Public Policy is a peer reviewed, biannual, law and public policy publication. Successive governments come out with their objectives and intentions in the form of various policies. These policies are a reflection of the Executive ’s ideologies.

Laws,

concomitantly,

become the means

through

which

such

policy

implementation takes place. However, there might be cases of conflicts between the policy and the law so in force. These contradictions have given way for a continuing debate between the relationship of law and public policy, deliberating the role of law in governing and regulating policy statement of various governments. This journal is our solemn effort to promote erudite discernment and academic scholarship over this relationship, in a way which is not mutually dependent on each of these fields but which is mutually exclusively and independent. The focus has been to give a multidisciplinary approach while recognizing the various effect of law and public policies on the society.

(EDITOR IN CHIEF)

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TABLE OF CONTENTS 1. CITIZENSHIP

LAWS

IN INDIA: LEANING TOWARDS

POLITICAL

RHETORIC OR CONSTITUTIONAL MORALITY WITH RESPECT TO A CRITICAL ANALYSIS OF THE CITIZENSHIP AMENDMENT BILL, 2016

Pragya Srivastava.........................................................................................................1 2. “ASSAMESE POLITICS: REDEFINIG THE CONTOURS OF CITIZENSHIP LAWS IN INDIA” Akhand Pratap Singh and Shashank Pandey...............................................................12 3. CHANGING CONCERNS AND CONTOUR OF GOOD CITIZENSHIP: RESHAPING AND DECODING CIVIC VIRTUE IN CONSONENCE WITH RETURN OF CIVIC REPUBLICANISM Arushi Kaushik............................................................................................................22 4. NATIONAL REGISTER OF CITIZENS:

LEGAL FRAMEWORK AND

IMPLEMENTATION Asmita Kumari and Ana Hafeez…………………………………………………………….30 5. THE NRC REGIME: PAST, PRESENT AND FUTURE Aviva Jogani and Mohak Kapoor.................................................................................41 6. FATAL FLAWS IN THE IMPLEMENTATION OF STANDARD OPERATING PROCDEURE (SOP) RELATED TO NRC, ASSAM Bhaskar Debroy............................................................................................................51 7. A CRITICAL ASSESSMENT OF THE HIGHLY DEBATED NATIONAL REGISTER OF CITIZENS IN ASSAM Bidisha Saikia...............................................................................................................59

8. CONSTITUTIONAL VALIDITY OF CITIZENSHIP (AMENDMENT) BILL 2016 WITH SPECIAL REFERENCE TO ASSAM ACCORD: A REVIEW OF THE PROCESS OF UPDATING NATIONAL REGISTER OF CITIZENS Jayanta Boruah............................................................................................................67 9. CITIZENSHIP

LAWS

IN

INDIA:

FAILURE

TO

STOP

ILLEGAL

IMMIGRANTS FROM BANGLADESH Karsin Manocha and Arisha Azhar..............................................................................79 10. INDIAN CITIZENSHIP LAWS Kush Goel.....................................................................................................................90 11. D-VOTERS: ABUNDANCE PRECAUTION & ILLEGAL PERSECUTION Megha Sood and Anmol Gupta....................................................................................98 12. NATIONAL REGISTER OF CITIZENS: LEGAL FRAMEWORK AND IMPLEMENTATION Moiz and Akanksha Singh...........................................................................................108 13. NATIONAL REGISTER OF CITIZENS: LEGAL FRAMEWORK AND IMPLEMENTATION Monika........................................................................................................................117 14. CITIZENSHIP IN ASSAM AND EXCLUSION: A STUDY OF THE WORKING OF THE FOREIGNER’S TRIBUNALS AND NATIONAL REGISTER OF CITIZENS

(NRC)

WITH

REFERENCE

TOTHE

CITIZENSHIP

(AMENDMENT) BILL, 2016 Md Mubarak Ali..........................................................................................................127 15. D- DOUBTFUL OR DEPRIVED? Nasima Sultana Choudhury........................................................................................139

16. THE

CITIZENSHIP

(AMENDMENT) BILL,

2016: THE

CONFLICT

BETWEEN CONSTITUTIONAL MORALITY AND MORALITY OF THE POPULAR MAJORITY Pranay Jalan…………………………………………………………………………………147 17. CITIZENSHIP

LAWS

IN

INDIA:

PROGENY

OF

IDEOLOGICAL

POLITICAL RHETORIC AND ITS IMPLICATIONS ON REFUGEES Prathiksha Chandrasekhar Ullal and Harita Ramachandran....................................159 18. THE NRC VIS-A-VIS THE CITIZENSHIP (AMENDMENT) BILL, 2016 Priyanka Gogoi..........................................................................................................171 19. NATIONAL REGISTER OF CITIZENS IN ASSAM: A SAVIOUR OR A CURSE Prof. (Dr.) Anand Pawar and Ms. Ishita Sharma......................................................180 20. NATIONAL REGISTER FOR CITIZENS AND IT’S LEGAL FRAMEWORK IN INDIA Shivam Tiwari............................................................................................................190 21. NATIONAL REGISTER

OF CITIZEN:

LEGAL

FRAMEWORK AND

IMPLEMENTATION Tejas Pratap Singh……………………………………………………………….…………200 22. UNAVAILING ACCORD: A SIFT INTO THE ASSAMESE IMMIGRATION Vasudha Chadha and Mridul Dhingra.......................................................................209

CITIZENSHIP LAWS IN INDIA: LEANING TOWARDS POLITICAL RHETORIC OR CONSTITUTIONAL MORALITY WITH RESPECT TO A CRITICAL ANALYSIS OF THE CITIZENSHIP AMENDMENT BILL, 2016 -Pragya Srivastava ABSTRACT Citizenship (amendment) Bill, 2016 has been used to redefine the concept of “Citizenship is a status given to a person for the enjoyment of exclusive political and civil rights along with a sense of protection by the State in lieu of loyalty and set of duties towards the same. The constitution has largely left the responsibility of making the laws for giving of such status, to the parliament to have their own barometer of satisfaction of animus manendi of a person. The formation of the Citizenship Act, 1955 had been a result of such belief of the constitue nt assembly on the parliament. The act had been created to strictly comply with the requireme nts of the constitution and instigated the similar values and precision as the latter had. However the newly proposed illegal migrants”, creating a bias on the ground of religion which is allegedly contradictory to the Article 14 and has been nullifying the Assam Accord, 1985 among the other troubles created by the same. The present paper will demonstrate how this bill while wears the skin of altruism and greater good, is merely another tool for the vote bank politics while preferring one religion over another through an approach which is so arbitrary in nature that it counters the pre-existing and deeply rooted notions and institutions of the country like that of the National register of citizens which records the bona fide citizens. The paper will further discuss the problems which shall arise in the event of passing of the bill, keeping in mind the already exploding population of the country and the inability of the government to fulfil the bare minimum requirements of the masses, the people who have already owed their allegiance shouldn't be compromised for the others, the bill will bear no fruit if the migrants will suffer in this society as much as they did in the other. And lastly the paper would suggest better alternatives for reaching the altruistic goal of providing help to the people persecuted or fearing such persecution in the aforementio ned



The author is an undergraduate student at Faculty of Law, Allahabad University

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countries which might have a more positive impact on the society and would not compromise the constitutional integrity. INTRODUCTION We are not the self-made atoms of liberal fantasy, certainly, but neither are we exclusive ly products or artefacts of single national or ethnic communities. We are made by our langua ges, our literature, our cultures, our science, our religions, our civilization – and these human entities that go far beyond national boundaries exist, if they exist anywhere, simply in the world.1 Immigration is a very crucial phenomenon of social engineering, because it creates the future population of a country. The Citizenship (Amendment) Bill, 2016, passed in the Lok Sabha on 7 of January, 2019, was first referred to a joint parliamentary committee (JPC) under the chairmanship of Rajendra Agrawal for presenting a report to the Parliament after careful examinations. The Citizenship (Amendment) Bill of 2016 which, if passed, will change the dynamic of citizenship in India. It contains three major provisions. Firstly, the Bill contends that the six categories of people : Hindus, Sikhs, Jains, Buddhists, Christians, and Parsis coming from the countries Afghanistan, Pakistan and Bangladesh, where they are minorities and often oppressed; would not be treated as illegal immigrants, thus making them eligible for seeking citizenship. Secondly, it reduces the time required for naturalisation for these communities from the current twelve years to seven years (twelve months of staying within the territory before applicatio n, being constant). The process of naturalisation usually has a time requirement with regards to the permanent stay in India so that the applicant becomes aware and interested with the nation's laws, culture, spirit, customs, way of life and develop a sense of deep loyalty towards the nation. Thirdly, it amends the section 7D of the Citizenship (amendment) act, 1955 which deals with the cancellation of the Overseas citizens of India, by nullifying the specific provisions of the section with very vague directions.

1

Jeremy Waldron ,778(1992).

2

Citizenship law in India is currently under the ambit of two legislations: Part II of the Constitution of India, 1950 which in turn gave birth to the Citizenship Act, 1955. But, neither of these legislations has defined the terminology and only gave provisions for a natural person to acquire Indian citizenship. The objective of the Act, 1955 is to provide for acquisition and determination of Indian citizenship. It prescribes the four main methods of acquiring citizenship, that is, by birth jus sanguinis, by descent jus soli, by registration and by naturalisation. The migrants are however recognised by The Passport Act, 1967, The Foreigners Act, 1946, and The Foreigners Order, 1948. The union has cited that the bill is extremely important since India had a past of providing refuge to its neighbouring nationals with open arms. Even though India never explicitly addressed this issue in its legislation but did a satisfactory job with ad hoc administration during these years and also became a signatory of the global compact on refugees (GCR). The declaration creates a new framework for refugee protection. Two of its key objectives are to ease pressures on host countries and enhance refugee self-reliance.2 section 6a of the origina l citizenship act only deals with foreigners who entered India from Bangladesh into Assam between January 1, 1966 and march 24, 1971. 3 The 2014 manifesto of BJP during Lok Sabha had clearly mentioned in the page number 40, "India shall remain a natural home for persecuted Hindus and they shall be welcome to seek refuge here”. This bill is the imbalanced fulfilme nt of this goal. IMPACT OF THE BILL After having a methodical and exhaustive study of the Bill, it can be said that Amending the citizenship acquisition rules in this context might look rational when a person solely consider the plight of these communities in the said countries where they are facing such persecution, however while considering all the other factors, it is not a progressive step at all, instead it has a plethora of loopholes and bad effects to follow its precedence if set. The defence taken by the supporters of this bill is the exclusion of Muslims from the bill is simply because Muslims have other countries to take refuge in, but isn’t that the case with Christian minorities as well? However, the Christians have been given the benefit. Similarly, the protestors of the bill argue that the basis of such discrimination regarding the country is unfounded since even if Bengal and Pakistan had been the part of undivided India, Afghanistan was never so, instead the minorities in Sri lanka and Myanmar which would have been more coherent choice. The other 2 3

PALLAVI SAXENA & NAYANT ARA RAJA, T HE IMPERATIVE TO OFFER REFUGE Report of the Joint Committee on the citizenship (Amendment) Bill, 201616 LS 63, (2019)

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issue with the bill is that it does not provide any solution so as to what must be done with the illegal migrants who do not fulfil the criteria of NRC, which would mean that they will be governed under The Foreigner’s Act, thereby, deported. But this is where another issue arises, countries like Bangladesh has been denying all the claims regarding these unprecedented migrations, therefore do not regard these people as its citizens at all, in this condition, how will deportation (though a cruel decision) even take place? Another issue is of asylum seekers, these people who need political asylum or another must have an idea of India’s stand on this particular issue. While the intention of this Bill, in terms of addressing the plight of thes e mistreated people, is positive, it begs the question of why Rohingya Muslims from Myanmar, Ahmadiyya Muslims from Pakistan and Uighur Muslims from China have been overlooked. For these communities are also fleeing from government pogroms en-masse4 also since according to the law of the land, the classification must be founded on an intelligib le differentia5 . DEFINITION OF MIGRANT The Bill seeks to protect the rights of the illegal immigrants who cross the move into the fear of persecution or are being persecuted due to their religion, however, there is a confusion with the terminology, an illegal migrant is different from a refugee or asylum seeker. The major difference is that of choice. Where a migrant is someone who chooses to move, and a refugee is someone who has been forced to move from their country or region. Refugees, according to the Office of the United Nations High Commissioner for Refugees (UNHCR), are people who are “fleeing armed conflict or persecution”, “they are so recognized precisely because it is too dangerous for them to return home, and they need sanctuary elsewhere,” “for whom denial of asylum has potentially deadly consequences.” Refugees leave their home countries only because it is too dangerous for them to continue living in there. Turning refugees away could mean something as serious sentencing them to death. They often arrive in absolute unplanned manner, many a times without their personal belongings; hence, they are economically very weak as well.

4 Raghav

katyal, Citizenship (Amendment) Bill: A positive step but BJP govt must justify religion -based provisions in proposal, firstpost, 10 january,201835 5 Budhan Choudhry And Other vs The State Of Bihar, AIR 191 (1954)

4

Migrants, however, may move for any number of reasons. Some of them move to live with their family or for better economic opportunities and a raised standard of living. Immigra nts might return to their home countries after a few years when they have received what they came seeking for instance: education. They are often able to choose the country they wish to move to and have time and resources to manage their possessions. This doesn’t mean that all migrants are moving from good situations to better ones. Many people migrate because their homes have become difficult to live in. They might be fleeing from unrest, famine, drought, or economic collapse. But unless they are in danger of conflict or persecution for the reason of their race, religion, sexual orientation, they are not considered refugees. The distinction is an important one, because the Refugee convention,1951 outlined certain rights for people deemed refugees, whereas migrants have no such rights. For instance, they are protected from deportation or returning to situations that are threat to their lives. They must be given access to social help and a sense of security in their new country. Migrants however, are subjected to a country’s immigration laws and in cases of conflict, can be deported back to their homeland. Politics has always found a way of interfering with such mobility of people, Conflating refugees and migrants can have serious consequences for the lives, culture, peace and safety of the native citizens. However, intermixing these terms takes the attention away from the specific humanitarian help the refugees require, it can undermine public support for refugees and the institution of asylum if the citizens feel threatened or unsafe in the presence of such a large number of foreigners who are economically relying on the migrated country. We need to ensure that the human rights of migrants are respected but we also need to make sure that while providing them with shelter and help, we do not infringe the rights of the citizens who have the first right on the country’s resources. Mixing the two terms would also hinder the provision of an appropriate legal response for refugees, because of their particular predicament. INCONSISTENCY WITH THE CONSTITUTION One of the rights possessed by the Supreme power in every state is the right to refuse to permit an alien to enter that state, to annex what conditions it pleases to the permission to enter it, and to expel or deport from the state.6 , however, this cannot be an arbitrary decision as it changes the demographics of a country, so even according to the USA courts, Congress might entrust

6 Canada

vs. Cain AC 542 (1906).

5

the final determination of the facts to an executive officer, and that, if it did so, his order with due process of law be the decision.7 Hence granting citizenship cannot be an act which doesn’t illustrate fairness and justice. The present bill’s rule which provides so on the ground of religio n is repulsive and discreditable at the very beginning, since, depending on the subject matter, individuals cannot always be expected to express themselves with cogency or precision while proving their religion. Nor are an individual’s beliefs fixed and static. The beliefs of every individual are prone to change over his lifetime8 . This bill is said to be in direct contradiction with the Article 14 which speaks about the fundamental right of every person within the territory of India to be treated without any discrimination based on religion, the bill fails the twofold test which relies on two princip les, that is, reasonable classification and nexus between the object sought to be achieved and the legislation9 . Since the heart of the parliament might be in helping these refugees, yet the path taken will only increase the chaos. The bill also contradicts the theory of “basic structure” which states that the Constitutio n contains certain characteristics that cannot be taken away by any legislation; for example, judicial review, free and fair elections, and welfare state. These form the cornerstone of the governance of a country. Therefore, any legislation that fails the test of “basic structure” is unconstitutional. Secularism is a basic structure, as has been reiterated by the Supreme Court10 .It has also been incorporated in the Preamble to the Constitution, which serves as the guiding light to interpreting the Constitution. All religions are equal in the eyes of law and that the State shall not propagate or endorse one particular religion, this philosophy is also enshrined in the Preamble and in Articles 26 to 29 of the Constitution. The chief reason why religion becomes the focus of prejudice is that it usually stands for more than faith - it is the pivot of the cultural tradition of a group. For instance, Jews, while they are primarily a religious group, they are likewise viewed as a race, a nation, a people, a culture. When religious distinctions are made to do double duty, the grounds for prejudice are laid. For prejudice means that inept, over inclusive categories are employed in place of differentia ted thinking.11

7 Nishimura

Ekiu v. United States 142 US 652 R (Williamson and Others) v Secretary of State for Education and Employment UKHL 15 [2005] 9 State Of Madras vs V.G. Row.Union Of India & State, AIR 196 (1952) 10 His Holiness Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala and AnrSCC 225 (1973) 11 Allport, The Nature of Prejudice, 446. 8

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When the state is involved, we also have the possibility that a state may enact “neutral laws” that are applied equally to all religious and ethnic groups, but where some groups might suffer disproportionately because of their religious beliefs or practices12 . Such laws where seem harmless and unconsciously made, are actually intended to discomfort the targeted people and thereby lead to their oppression. The religious persecution as an allegation is hard to find based upon for instance when such information during about government practices is incomplete because judicial proceedings are closed to the public and the Government restricts freedom of speech and association13 . On a closer look, the bill is also held guilty of abetting a crime as inhumane as rapidly forced conversion of religion, the Muslims and Jews who would not be registered under the NRC through naturalization will simply be living in the fear and anxiety of deportation at any time by the government since they are simply “illegal immigrants” and the foreigners act, 1946 rules out the possibility of them being anything else. Forced conversion of religion is an atrocity against mankind since religion is a very personal yet very strong aspect of one’s character, its not simply faith, instead it’s a way of life which if changed against one’s will, can end up in a hypocritical, confused, frustrated and unintegrated set of population, which is nothing less than the exact persecution these people have been trying to escape in the first place. Hence the filtration criteria set by the bill is not only in conflict with the constitution but also highly impractical to apply. It will also increase illegal activities by desperate people already living in the country to gain access to public welfare schemes and get registered through adhaar card, bank accounts ant permanent account numbers, as while the stateless groups are denied full, effective membership in either of states involved in their predicament, they do have a weak de facto dual citizens hip in both states14 . The fundamental right of a foreigner is confined to Article 21 for life and liberty and does not include the right to reside and stay in this country, as mentioned in Article 19(1)(e)15 .

12

T. Jeremy Gunn ,The Complexity of Religion in Determining Refugee Status,31. Religious Freedom Report 2001, 481. 14 Gerard Khan, citizenship ans statelessness in South Asia, 25,(2001) 15 State of Arunachal Pradesh v. Khudi Ram Chakma SCC 615 (1994) 13

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THE VOTEBANK POLITICS The 2014 manifesto of BJP during Lok Sabha had clearly mentioned in the page number 40, "India shall remain a natural home for persecuted Hindus and they shall be welcome to seek refuge here”. This Bill is the imbalanced fulfilment of this goal, the NRC updation process which is due till INSECURITY IN THE NORTH EASTERN PART The Sixth Schedule of the Indian Constitution provides a discrete administrative system for the tribal areas of the North eastern region to protect the tribes from political and economic exploitation. The various provisions of the 6th Schedule also made provisions for these indigenous people to preserve their distinct identity, history, customary practices and traditional beliefs. But providing citizenship the illegal immigrants have uprooted the indigenous people from their lands and denied of their livelihoods. India is also a signatory to the United Nations Declaration on the Rights of Indigenous People during its 61st session at UN Headquarters in New York City on 13 September 2007. According to which, Indigeno us peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their right to participate fully, if they so choose, in the political, economic, social and cultural life of the State16 .This uncontrolled influx of ille ga l immigrants into the land of Assamese of their culture, religion and national identity. The Honourable Court observed that illegal migration has resulted in “periodic clashes between the citizens of India and migrants”, leading to loss of life and property, and thereby violating the constitutional rights of the Assamese people. It reaffirmed that illegal migration had eroded the cultural way of life of the Assamese people as they were being swamped by the illega l migrants who had no right to be in India17 . The members from Assam have also been opposing it because the legislation it would pave the way for giving citizenship, mostly to illegal Hindu migrants from Bangladesh in Assam who came after March 1971, in violation of the agreement of the Assam Accord, 1985. It may lead to wrongful deportation of about 2 million migrants living in Assam, The specific charge is that the bill invalidates the Assam Accord of 1985, which fortified the lawful detection and expulsion of the aliens who came to Assam on or after March 25, 1971 along 16 17

UNDRIP art. 5 Assam SanmilitaMahasangha&Ors. vs Union of India, Writ Petition (Civil) No. 562 (2012),

8

with the provision of constitutional, legislative, executive and administrative safeguards to protect, develop and preserve

the cultural, social, linguistic identity and heritage of the

Assamese people. It is also contended that by considering a section of persons legal migrant s, the bill would undermine Section 6A of the Citizenship Act, which was yet again based on the considerations under the Assam Accord and stipulates the political sterilization for 10 years of every immigrant of Indian origin which entered Assam from Bangladesh between 1 January 1966 and 25 March 1971 and is considered a foreigner. It is also noticeable that the Bill, by selectively permeability lets Hindu Bengali immigrants stay in Assam, it nullifies the importance of the ongoing National Register of Citizens (NRC) updation procedure which is to identify the ‘illegal immigrants’ inhabiting in Assam. The list’s final draft, released in July 2018, had identified 40 lakh applicants (out of 3.29 crore) as ‘illegals’, out of which a significant chunk is claimed to be Bengali Hindus18 .

CANCELLATION OF INDIAN OVERSEAS CITIZENSHIP Under the citizenship,1955 Act, an Overseas Citizen of India (OCI) cardholder’s registratio n may be cancelled if he violates a particular set of serious laws that lands him/her in prison for at least two years19 , however, the Bill substitutes it for violation of any law of the country by an OCI. But under the current bill, this provision also grants the Union a very wide discretion to cancel OCI registration for a range of violations, but such minor violations should not result in severe consequences like cancellation of OCI registration, which may require an OCI who is staying in India to leave the country, it will create a kind of insecurity and vulnerability for this class of Indians. CONCLUSION It has taken decades for India to establish its international image as a strongly princip led, compassionate, sympathetic, benevolent, secular yet harmonious country which was nourished by the blood of great men and women who dreamt of a country which will prove it to the world that humanity has no race, caste, creed, sex or religion. India has tried very hard to protect its diversity, culture, and heritage because it’s what defines us. The citizenship is not just a status or eligibility of rights, it’s a sacred position where the person vows his/her loyalty towards a country, it comes along with a set of fundamental duties that makes each citizen an integra l

18 Angshuman Chaudhary, 19 The

Citizenship Amendment Bill fails to address key questions, firstpost,29 January, 2019 citizenship act, 7D(1955)

9

part of the ‘welfare state’, it imbibes within itself the very values which are the foundation of this country, it will create the population of the country and therefore the very composition of the country. The present paper however, provides for some probable solutions to these drawbacks of the bill. •

The people who have been staying since 25 March, 1971 (in the north eastern region) must in totality be provided with the opportunity to get the citizenship of the country, a select number must not be left in the pit of statelessness owing to their religion since they have been counting upon the India that does not snatch opportunities for a better life from the people simply because of their religion.

•

However, for the asylum seekers that arrived after the 23 of December 2014, and might arrive in the future, a separate pan India legislation addressing this issue must be passed, which defines the word refugee and differentiates them from the immigrants. A legislation that recognises their plight and provides the imminent remedy for it.

•

The population of India is already the second highest in the world while it consists of nearly fifth of world's population where there are 4.6 crore tax payers only according to the 2017 statistics. Hence it is very important for India to make such provisions where these refugees not only get a respectable life, rather become an asset rather than a burden on the country, they must be taught self reliance to protect them.

•

The bill must address the issue of exploitation at the hands of the influential people and a strict provision that penalises them since these refugees and immigrants form one of the most vulnerable class of individuals and need extra protection and sense of security, but unfortunately are the most economically, emotionally, sexually and physically exploited, being unregistered to begin with, they could hardly ask for redressal of their grievances, this makes them violent and aggressive and overprotective class of persons.

•

This bill should make sure that the seven years period provided to these asylum seekers is uniform and they are given the empathetic title of a refugee for the people as a temporary home or interim legal stay, including to facilitate the realistic economic, social and cultural inclusion of such refugees, which must be provided without prejudice to eventual durable solutions that may become available for the religio us minorities in neighbouring countries fearing persecution, and after the expiry of such 10

period, they have to make the decision of either registering for the acquisition of citizenship through naturalization or voluntarily repatriate to their own countries. •

They must however be given a grace period of two more years since the immigra nts who flee from their countries generally do so unplanned and they do not have the luxur y of choice whilst escaping from such persecutions which again means that they generally go unregistered and thus the time of their arrival cannot be known, further these people must be given enough time to be able to clear their hurdles in moving to another country.

Hence, this Bill instead of solving or at least being a step closer to the solution, is a step backwards which would only end up into a failure of humanity in lieu of constitutio na l morality.

11

ASSAMESE POLITICS; REDEFINIG THE CONTOURS OF CITIZENSHIP LAWS IN INDIA -Akhand Pratap Singh and Shashank Pandey INTRODUCTION Citizenship, as defined by Webster Dictionary, means “the position or status of being a citizen”. Webster dictionary defines citizen as “an inhabitant of a city or town especially one entitled to rights and privileges of a freeman”. From the above discussion, any person belonging to a particular State, who enjoys the rights and privileges and subjects himself to the authority of the State is said to hold the citizenship of the said State. Citizenship is often used synonymously with nationalism and domicile. However there is a difference between all three. Citizenship is somewhat a domestic concept and nationalism is an international model. Nationalism provides civil rights which are governed by international law whereas citizens hip talks about civic rights which come under munic ipal law.1 Domicile is essentially the legal relationship between an individual and a territory with a distinctive legal system which invokes that system as their personal law. HISTORICAL BACKGOUND Soon after its independence, India witnessed one of the largest human migrations in recorded history due to partition which displaced at least 14 million people, out of which approximate ly 1 million are said to have been killed or died in violence which erupted in the aftermath of the partition. Though people who migrated between India and Pakistan did not loose their citizenship but they were forced to live the life of a refugee in the camps. The condition worsened after Indo-Pakistan war of 1948 broke out and Indian cities were filled with refugees from Pakistan, specially the big cities like Delhi. This presented a great challenge before the Constituent Assembly to provide solution to the complicated question of citizenship of people migrating between India and Pakistan and decide who would and who would not be a citizen. During the time of the framing of the Constitution, there was a strong debate in Constitue nt Assembly about which concept of citizenship the new IndianState would commit to. After many discussions the founders of the Constitution decided that the basis for granting citizens hip will be “associational”, as they wanted to adopt a concept of citizenship that was large enough



The Authors are undergraduate students at Dr. Ram Manohar Lohiya National Law University, Lucknow. Weiss, P (2006): "Nationality and Statelessness in International Law," Oppenheim's International Law, Vol 1, pp 642-644. 1

12

to accommodate everyone who was born on Indian Territory without any distinction on the basis of religion, caste or ideology.2 The definition of citizenship in Article 5 is at the commencement of the Constitution and thus the provisions related to citizenship were inadequate in addressing the problems of citizens hip from the time Constitution is enacted till Parliament makes an exhaustive law and a state of legal vacuum as to citizenship existed between these two periods. 3 In the Constituent Assembly, Dr. Ambedkar duly noted that Part II of the Constitution was mainly included to address this issue of citizenship at the time of commencement of the Constitution and not to establish any permanent law for citizenship. In exercise of power given under Article 11, the Parliament has enacted the Indian Citizenship Act, 1955 which provides for the acquisition and loss of Indian citizenship after the commencement of the Constitution. From then this Act has been amended four times so far by the Citizenship (Amendment) Acts of 1986, 1992, 2003 and 2005. India is neither a signatory to the 1951 Refugees’ Convention nor the 1967 protocol then also the country has served as a home to the largest refugee population in South Asia. There are sizeable groups of refugees in India, who number in millions, like Sri Lankan Tamils, Afghans, Rohingyas, Chakma and Hajong communities etc. but none had such an effect on Indian Politics as the influx of migrants from East Pakistan (now Bangladesh) to India. Unlike others, this migration in the North- Eastern States is a sensitive and emotional issue for local population which had serious cultural and social demographical implication since this has led to the sudden spike in the population of the States bordering Bangladesh. The majority local population in these areas feared to become minority in future and also it made difficult for the government to ensure food security. This became an issue for the political parties to garner votes in the elections till date. THE ASSAM MOVEMENT The problem in Assam originated way back in 1826 when the Burmese ceded Assam to the British thus bringing to an end the Ahom rule in Assam, which was annexed and placed as an administrative unit of the Bengal Province by the British. It started the trend of migration from Bengal to Assam which gained momentum in the 20th century by the support of British who Gautam Bhatia, ' Challenge the NDA’s citizenship bill' Hindustan Times (2019) accessed 20 January 2019 3 Anupama Roy, Mapping Citizenship in India, (first published 2010, Oxford University Press). 2

13

favoured the migration in the region, instead of checking it, as the migrants formed cheap labour for the tea and oil industry. The migration accelerated after the partition and formatio n of East Pakistan in 1947. Huge population of Bengali Hindus were forcibly compelled to leave East Pakistan and migrate to West Bengal and the North- Eastern States mainly in Assam. The riots of 1964 and the India-Pakistan War of 1965 and 1971 further resulted in the out-migra tio n of a large number of migrants from East Pakistan. Further, the economic conditions of East Pakistan (Bangladesh) had always ensured the steady migration between the borders in search of a better life.4 There are no provisions to deal with refugees in the Constitution and all rights were conferred to the Parliament though the Foreigners Act of 1946 conferred powers upon the government to prohibit entry of foreigners, among other things. The Parliament tried to handle the situatio n by passing a special law for Assam titled the Migrants (Expulsion from Assam) Act, 1950 and under this act Indian Government passed the Foreigners Tribunal Order of 1964 which authorised it to establish Tribunals to determine questions of nationality, in accordance with the provisions of the Foreigners Act. Till then, these along with the Citizenship Act, 1955 were the governing laws related to the Refugees. 5 But the issues of migration continued to cause conflict in Assam because it was perceived that many of “illegal migrants” were being put on voter list by political parties in an attempt to create faithful vote banks. This led to Assam Agitation, a state-wide student movement from 1979 to 1985 which came to an end with the signing of the Assam Accord between the Government of India and the leaders of the movement. The main demand of the movement was detection and expulsion of foreigners in the State. The Accord provided for two separate cutoff dates for regularisation of migrants and divided the migrants in three groups: i.

those who came into the State before 1966;

ii.

those who came into the State between 1966 and 25th March, 1971 (the official date of the commencement of the Bangladesh War); and

iii.

those who came into the State after 1971.

4

K. V. Thomas, ' The Politics of Citizenship: The National Register for Citizens (NRC) in Assam' The Hindu Centre for Politics and Public Policy (2018) accessed 20 January 2019 5 Gautam Bhatia, 'The Constitutional Challenge to S. 6A of the Citizenship Ac t (Assam Accord): A Primer ' Indian Constitutional Law and Philosophy (2017) < https://indconlawphil.wordpress.com/2017/ 05/07/theconstitutional-challenge-to-s-6a-of-the-citizenship-act-assam-accord-a-primer> accessed 20 January 2019

14

The first group was to be regularised and the second group was to be taken off the electoral rolls, and regularised after ten years. The third group was to be detected and expelled. The Assam Accord also demanded for updating of the National Register of Citizens (NRC), 1951 to include all the Assam inhabitants and their descendants on or before March 25, 1971 and that the detection of 'foreign nationals' should be done on the basis of the National Register of Citizens (1951), which was not a public document, and the voters' list of 1952. This led to the introduction of section 6A by Citizenship (Amendment) Act of 1986 which divided “illegal” migrants of Indian origin within those three categories. The Parliament had also passed the Illegal Migrants (Determination by Tribunals Act) of 1983 which authorised the Government to set up Tribunals for the purposes of determining whether migrants were illegal. Under the Act, the Government framed the Illegal Migrant Rules of 1984. This rule along with IMDT act and section 6A formed the statutory regime related to citizens hip and were applicable to Assam only.6 However, the main focus all such movements, till today, is on the Bangladeshis though they were estimated to be only around 40 per cent of the migrants, and ignore the fact that majority of the migrants in the region are the Hindi speaking Hindus from Gangetic plains or of Nepali origin. The refugee population today is estimated to be around 10 million persons, out of which 6.7 million are believed to be Hindus who spread over North-East, West Bengal, and Bihar. 7 The movement which started as a secular movement of all the Assamese soon turned into a communal movement directed mainly against Muslims due to political narratives. CONSTITUTIONAL MORALITY AND CITIZENSHIP As Assam politics gathered more strength, we see a gradual transition in the nature of citizenship laws in India. The transition soon shifted from Constitutional morality towards political narratives. In the Constituent Assembly debates Dr. B.R. Ambedkar explains the scope of Constitutio na l morality by quoting the Greek historian, George Grote, and said “...by Constitutional morality Grote meant “paramount reverence” for the forms of the Constitution enforcing obedience to authority acting under and within these forms, yet combined with the habit of open speech, of action subject only to definite legal control and unrestrained censure of those very authorities

6 7

Ibid (n,6)

15

as to all their public acts combined too with a perfect confidence in the bosom of every citizen amidst the bitterness of party contests that the forms of the Constitution will not be less sacred in the eyes of his opponent than in his own”. 8 It is apparent that Grote was not speaking about the actual word Constitution but rather the idea that it encapsulates. Understanding the vision of the Constitution is of paramount importance because of the reason that although people may not have participated in the framing of the Constitution, the Preamble professes that the Constitution is adopted by the people themselves. However personifica tio n of the “Will of the People” presents the suspicion of it being as another tenet of Constitutio na l morality.9 Constitutional morality cannot allow the will of the people or alleged will of the people to eclipse the principle of the Constitution. Hence any organ of the State who contends to manifest will of the people cannot vest itself of this undeserved extraordinary power. Devotion and fidelity to Constitutional morality must not be equated with the popular sentime nt prevalent at a particular point of time. 10 Constitutional

morality

serves as the tenet of Constitutionalism.

The essence of

Constitutionalism that gives immutable feature and serves as a moral compass in the implementation and interpretation of the Constitution is the principle of Constitutio na l Morality. Preservations of the basic values of the Constitution and their modification to suit the present societal requirements define the purpose of Constitutional morality. The Realiza tio n of these values of equality, liberty, justice, fraternity and secularism requires existence of commitment to this vision. Constitutional morality determines the mental attitude towards individuals and issues by the text and spirit of the Constitution. These principles can be viewed as imposing an obligation on individuals and institutions to ensure that the Constitutio na l system operates in a coherent way, consistent with its basic principles and objectives. 11 The framers of the Constitution expected that the citizens of the country would conduct themselves in a way that would further the objective of cause of Constitutional morality. A simplistic approach to Constitutional Morality would be to assume that principles of fundamental rights such as the right to life and liberty, the right against discrimination and the freedom of speech are just some examples of Constitutional morality that had been drafted into

8

Constituent Assembly Debates, Vol. 7, P.38 (4-11-1948) The manifestation of this would lead to usurpation of power or overarching of the fundamental provisions of the constitution. 10 ibid 11 Bruce P Fronhen ; George W. Carey, Constitutional Morality and the Rule of Law, 26 J.L. & Pol. 497. 9

16

the Constitution. One such principle embodied in our Constitution is the idea of secularis m. 12 India, in particular, is such a typical pluralist society – a model of unity in the mosaic of diversities.13 Notwithstanding the fact that word “secular” and “socialist” were added by the 42nd amendment, the principle of secularism wax very much embedded in our Constitutio na l philosophy. The word “secular” has advisedly not been defined presumably because it is very elastic term not capable of a precise definition and perhaps best left undefined. What was implicit in the Constitution was made explicit. Positive secularism14 separates the religio us faith personal to man and limited to material, temporal aspects of human life. Morality under positive secularism is a pervasive force in favour of human freedom or secular living. Constitutional morality is thus the guiding spirit to achieve the transformation which, above all, the Constitution seeks to achieve. Constitutional morality is a pursuit of this responsive participation. From the above discussion we know that Constitutional morality is an essential tenet of Constitutionalism which, in its folds, withholds the principle of the Constitution. For our purpose principle of equality and secularism are most important aspect of this morality and they also are the part of basic structure of the Constitution. THE CHANGING CONTOURS OF CITIZENSHIP LAWS The Constitutional provisions pertaining to citizenship made inclusive approach to citizens hip and emphasised on people’s choice. When the Citizenship act 1955 was enacted, it threw up “luminal”, “transitional” and “awkward categories” of aspiring citizens whose legal resolutio ns drew attention to the ethno-cultural and gendered basis of citizenship in India. 15 Determinatio n 12

Dr Radhakrishnan talking about secularism said "When India is said to be a secular State, it does not mean that we reject reality of an unseen spirit or the relevance of religion to life or that we exalt irreligion. It does not mean that secularism itself becomes a positive religion or that the State assumes divine prerogatives. Though faith in the Supreme is the basic principle of the Indian tradition, the IndianState will not identify itself with or be controlled by any particular religion. We hold that no one religion sh ould be given preferential status, or unique distinction, that no one religion should be accorded special privileges in national life or international relations for that would be a violation of the basic principles of democracy and contrary to the best interests of religion and Government. This view of religious impartiality, of comprehension and forbearance, has a prophetic role to play within the national and international life. No group of citizens shall arrogate to itself rights and privileges which it denies to others. No person should suffer any form of disability or discrimination because of his religion but all alike should be free to share to the fullest degree in the common life. This is the basic principle involved in the separation of Church and State." (emphasis supplied) (Recovery of Faith, New York, Harper Brothers 1955, p. 202) 13 Venkatachaliah,M. N. “Common Law, Humanism and Constitutions”, Constitutionalism and Constitutional Pluralism, Ed. P. Ishwara Bhat. Gurgaon: Lexis Nexis, (2013) 53-64. 14 Secularism in the Indian context bears positive and affirmative emphasis. IndianState opted the concept of secularism operating as a bridge to cross over from tradition to modernity. The IndianState op ted to this path for universal tolerance due to its historical and cultural background multi religious faiths. 15 (n,5)

17

of citizenship was influenced by the ways in which the eastern and western borders were construed and hence the citizenship emerging from them remained ambivalent. The legal resolution of the citizenship conundrum relating to large numbers of people moving across, what had become ossified borders, was taking place within a political and social context where a Muslim in India was an anachronism and whose loyalties were seen to be suspected. The 1986 amendment manifested a politics of policy making, marking out of ethno-spaces, and the setting in motion of a process whereby citizenship’s association with descent is affir med. The amendment in 1986 in citizenship laws pertained to the question was illegal migrant. The IMDT Act which accompanied such modificatio n in citizenship laws tried to propel the Assam politics onto the national stage and ultimately manifesting the demand of the Assamese population in the form of modified citizenship laws. The amendment gave legal recognition to “different yet equal” or differentiated citizenship.16 However this exception for Assam was opened within the four folds of universal citizenship without violating the principle of equality. The IMDT act placed the burden of proving citizenship on the State.However in 2005 Supreme Court in held some of the provisions of this IMDT act as unconstitutional. 17 Justice Mathur held that the IMDT Act had resulted in the detection of foreigners far lesser than their actual numbers demanded and the Centre was failing in its constitutional duty to protect its citize ns against external aggression and internal disturbance. 18 The Tribunals under the IMDT ceased to function, and the statutory regime reverted to Section 6A of the Citizenship Act, and the Foreigners Act and the Foreigners Tribunal Order. It again shifted the burden of proving citizenship on individuals. Surprisingly the judges marked out the migrants not only on account of being illegal but also on the count of being a Muslim depicting it as a threat to the demographic profile of the country and national security. This clearly manifests the politica lideological context of the period. Judges discussed the demographic shift not in terms of the linguist disparity as was done earlier but rather on the basis of religious differences. The judgment shows the result of the dominant framework of nationalism. This nationa lis m depicted the popular morality and casted a doubt on everyone who was not in line with its ideals. The Bengali speaking Muslims in Assam were the most affected. This new concept of nationalism coupled with new State practices and institutional changes during the 1990s gained vicious nature. Thousands of Muslims were deported to Bangladesheveryday from parts of the

16

By introducing sixth category of citizenship which was to be exclusively applied to State of Assam UOI(2005) 5 SCC 665 18 Article 355 of the Indian Constitution 17 SarbanandaSonowal vs

18

country on the basis of their religious identification. After this amendment, the citizenship has laid down the chronological boundaries of belonging almost imperceptible. The 2003 amendment again shifted the ideological basis of citizenship laws. The late twentieth century witnessed drastic changes at international level, in particular, globalisation of economy, which witnessed the unprecedented movement of population. This led to the nations to reinforce their boundaries, restricting the flow of foreigners and migrants. The State asserted its sovereignty in the garb of this citizenship crisis. This threat generated the anxieties around the weakening bonds of community identity and social solidarity. In early 21 st century the religious forces were rampant around the parts of India. This led to the moulding of citizens hip laws to suit the demands of this “majority” ignoring the Constitutional morality of our Constitution. The amendments of 2003 and 2005 gave expression to this unequal exclusion and imparting religious character to the Indian State. The religious-political factors dominated most of the legislation in early 21st century and ultimately they found their expression in the form of citizenship amendment bill 2016 which can be said to be the culmination of the developme nt from 1986 onwards. The citizenship amendment bill 2016 is introduced to update the current citizenship act, 1955 and provide for the acquisition and determination of Indian citizenship for a certain category of illegal migrants.19 The bill prima facie proposes three changesi.

persons belonging to minority communities, that is, Hindus, Jains, Sikhs, Buddhists, Parsis and Christians from Afghanistan, Bangladesh, and Pakistan shall not be treated as illegal migrants,

ii.

the third schedule of the 1955 Act is proposed to be amended to decrease the residence requirement from 11 years to six years and

iii.

OCI cards holders are susceptible to lose their status if they violate any laws of the country.20

The most glaring and controversial provision of the bill is the criteria provided for granting citizenship status to the illegal migrants. With no explanation given for this clause it prima facie appears to be arbitrary. The bill discriminates on the basis of religion and the place of origin of these migrants. Article 14 of the Constitution which talks about equality is based upon

19 Apurva Thakur,

‘Why constitution amendment bill goes against the basic tenets of the constitution’, 31 March, 2018, Vol. 53. Issue No. 13, Economic and Political Weekly. 20 Citizenship (Amendment) Bill, 2016

19

the principle of reasonableness. The twin test to check the reasonable legislative classifica tio n arei. ii.

the classification must be founded on intelligent differentia and, the differentia must have a rational relation with the object sought to be achieved.21

The classification in this bill discriminates between the illegal migrants on the basis of religio n violating the first test. It also discriminates on the basis of the place of origin of these illega l migrants. 22 The central government has insisted that this law is necessary to protect “persecuted minorities” in India’s international neighbourhood; this object is not in consonance with the classification in the bill.23 This bill in itself won’t stand the Constitutional test as it is against the basic principle of secularism.24 As we have seen that secularism forms a part of the Constitutional morality and is a basic structure of the Constitution. The bill intentionally tries to exclude illegal migrants belonging to particular religion without any sufficient reason or cause. There appears to be an attempt made by this bill to attribute a religious character to the Indian nationality. CONCLUSION The proposed amendment bill is facing a wide criticism across north eastern regions. The bill is against the very identity and survival of the indigenous people of the region as it will drastically affect the demographic setup of these States. The bill places residents who may have illegally migrated from other countries like Sri Lanka, Nepal, China, and Myanmar at a disadvantage. It would be immaterial if their religious identity and the reasons for migratio n were the same. It must be noted that the protection of equality— equality before law and equal protection of the law—under Article 14 of the Constitution extends to all persons in India, not just citizens. Hence it does not explain the omissions of Baha’is, Ahmadis, Sufis, Shias, atheists, etc—minorities that face religious persecution in the enlisted countries, or indeed Tamils from Sri Lanka; or why a Buddhist who illegally migrated from Pakistan owing to

21

Twin test expressed by J Das in State of west Bengal Anwar Ali Sarkar, AIR 1952 SC 75. Muslim communities from Afghanistan, Pakistan, and Bangladesh have suffered and continue to suffer from religious persecution. Persecution against the Ahmadiyas is b oth socially pervasive and State-backed in Pakistan. Shia Muslim communities, particularly the Hazaras, have been subjected to severe persecution in Afghanistan because of their religious beliefs. 23 M Mohsin Alam Bhat, ‘The Constitutional case against Citizenship Amendment Bill 2019, Vol 54 Issue no 3, Economic and Political Weekly 24 SR Bommai v union of India (1994) 3 SCC 1 22

20

religious persecution would qualify for citizenship but a Buddhist who fled China for the same reason would not; or on what empirical or normative base the communities enlisted in the bill are “more likely to stay permanently” in India than other religious groups? 25 The citizenship amendment bill, in this sense, goes against the basic tenets of our constitutio n and is bound to fail the reasonableness and constitutional morality test, if passed and presented before the court. However the government is bestowed with the responsibility of dealing with the citizenship issues so it has to be seen whether the Judiciary will take cognisance of suc h unfortunate legislation. This is complicated further by the fact that the people whose rights are violated are still not citizen of India. The fate of millions of citizens and non-citizens of India hang in balance. The centre’s enthusiasm to treat certain migrant communities as prodigal sons and daughters is thus difficult to understand. In any case, the signal the bill sends is clear — Muslims outside the country, even if persecuted, do not belong in India.

25

(n,26)

21

CHANGING CONCERNS AND CONTOUR OF GOOD CITIZENSHIP: RESHAPING AND DECODING CIVIC VIRTUE IN CONSONENCE WITH RETURN OF CIVIC REPUBLICANISM -

Arushi Kaushik

INTRODUCTION Citizenship is seen in terms of a legal/formal status which includes having a specific nationality, holding a passport, and deriving from this status, enlightenments and claims, rights guaranteed by the constitution as well as specific duties and responsibilities. citizenship,

The idea of

however, goes beyond the legal-formal framework to denote substantive

membership in the political community. Equality and integration as constitutive elements of citizenship give it, its unique character as a momentum concept evaluating its internal logic that demands its benefits necessarily becomes progressively universal and egalitarian. Citizenship should be seen as a condition that is continuously evolving and changing. At different junctures, ‘becoming a citizen’ has involved either an extension of the status to more persons, or a dismantling of hitherto existing structures of oppression. The paper seeks to conceptualize the prescribed notion of citizenship as the constituent elements of citizens hip have been uncertain and contradictory. It further locates questions pertaining to whether rights or duties are the defining elements of citizenship, or whether the arena of politics or state activities is its rightful domain as opposed to the spheres of culture, economy and society at large. The paper would provide an overview of the underlining significance for citizenship in relation to autonomy of the individual, community and the societal contexts that shapes the need of the individual. It would further deal with questions pertaining to the legitimate unit of citizenship identity, the nation-state and the global civil society. Therefore, in the paper, there is an attempt to unravel the existing contradictions co-existing in the conceptual framework of citizenship. It also aims to explore the various strands in their specific historical contexts, understanding the tensions and uncertainties over the form and content of citizenship.

 The Author is

a Research Scholar at National Institute of Educational Planning and Administration, New

Delhi.

22

NEW EMERGING CONTEXTS OF DIFFERENTIATED AND MULTICULTRAL CITIZENSHIP The recent contemporary debates on citizenship and rights have questioned the idea that the citizens can enjoy rights independent of the context to which she/he belongs. A signific a nt terrain of contention has opened up in the citizenship theory, with multiculturalism, plurality, diversity and difference having become significant terms of reference for retheorizing citizenship. This contest pertains in effect to the unmasking of those differences that were earlier seen as irrelevant to citizenship. There is a growing effort to redefine citizenship by giving due importance to cultural differences among individuals and striking a balance between the numerous religious, ethnic and linguistics identities while constructing a common politica l identity of the citizen of the nation. Notions of multiculturalism and minority rights have been invoked in contemporary times as democratic values, whereby cultural communities can lay claims to inherent rights and negotiate fair terms of inclusion in the national political space. The case for a differentiatedcitizenship was put forth by theorists who felt that the common rights of citizenship, originally defined by men in a class-differentiated society, could not accommodate the needs of large numbers of ethnic, religious and linguistics groups who feel excluded from the common rights to citizenship. Therefore, different groups can be accommodated into common citizenship by adopting what Young (1989) calls 'differentiated citizenship' which means that members certain group should be accommodated not only as individuals but also through their group and their group and their rights would partially depend upon their group membership. Young argues against a society where some groups are privileged while others are oppressed, insisting that as citizens, persons should leave behind their particular affiliation and experiences and adopt a general point of view. Reinforcing the perspective and interests of the privileged will tend to dominate this unified public, marginalizing or silencing those of other groups. Seeking to redefine the principle of equality, to make it compatible with the ‘multicultur a l present’. Will Kymlicka (1996) provides a framework of representation and membership that accommodates cultural and group differences in a way that a person’s group membership and membership in a cultural community is not of any disadvantage. Therefore it seeks to find a meeting ground between cultural communities, the right to self-preservation, and rights to individuals as defined in terms of civil and political rights. Kymlicka suggested ways in which the demands of national minorities and ethnic groups may be accommodated within a 23

framework of democratic citizenship, First, by protecting the common rights of all citize ns, which means the protection of civil and political rights of individuals, freedom of association, religion, speech, mobility and political organization for protecting group difference. Secondly by accommodating cultural diversity through special legal and constitutional measures, with members of specific groups being guaranteed special rights or as Young (1990) mentio ned group-specific or group-differentiated rights. The argument made in favour of multiculturalism are, thus not only for the correction of historical wrongs' or even the removal of discrimination. The commitment to sustain the community is primarily rooted in the belief that communities have much to offer the politica l community. The investment in diversity is also based on assumption that every culture has valuable elements that can be shared and learned from. This assumption immediately opens up possibilities of conceiving the political community as a shared public space where equality is a significant norm. An important contribution of multiculturalism to the theory of citizens hip has thus been that it has altered the way in which the political community has been looked at. Far from being a homogeneous whole, the political community is seen as heterogeneous. However this heterogeneity is seen as valuable for a democratic public space. In its enthusia s m to establish the primacy of the community and the idea of the individual- in-community, multiculturalism runs into the danger of denying the individual the right of critical and creative membership in the community and overlook the hierarchies and oppressions that community themselves sustain and promote. By focusing disproportionately on the preservation of community, it leads to arguments favouring not only the protection of the community from external constraints, but also the acknowledgement of its right to apply internal restraints. By empowering the community to apply internal restraints it preserve structures of authority that work to the detriment of individual freedom. Moreover by acknowledging the community to apply internal restraints, it seeks to subscribe to the notion that the rights and freedoms of all individual do not matter. In other words, within such a framework, the rights of individ ua ls who belong to minority communities appear to be dispensable. MARSHALL’S CONCEPTION OF EQUAL AND UNIVERSAL CITIZENSHIP Marshall’s widely accepted definition of citizens as ‘free and equal members of a politica l community’ comes primarily from the study of citizenship as a process of expanding equality against the inequality of social class, the later being an integral element of capitalist society. In citizenship and social class (1950), Marshall distinguishes three strands or bundles of rights 24

constituting citizenship, viz., civil, political and social. Each of these three strands has, he suggests, a distinct history confined to a particular century and corresponds with the development of specific

state structures- the judiciary,

parliamentary

institutions

of

governance, education system and the welfare state. The elements of equality and universality are emphasized by those espousing the virtues of liberal citizenship. Marshall’s definition of citizenship as “full and equal membership in a political community” is seen as encapsulating the promises of modern citizenship. The membership is thus also the expression of an identity, of a sense of belonging to the politica l community that is the nation-state and assures a share in a common (national) culture and social heritage. Citizenship’s promise of equality is, moreover, premised on effacing or masking ascriptive and hierarchical inequalities of culture, caste, gender, ethnicity, etc. For example, the provision of equal rights by state, or equal protection by the state to its citizens, irrespective of class, caste, gender, race, has at its core the idea of neutral state. This basically means that for the liberal state the citizen is like an individual wearing a mask, so that attributes of class, caste, gender, race are not visible. Logically, then all citizens appear the same to the state and it would therefore treat everyone equally by applying uniform standards, so that irrespective of whether a person is an upper caste or a Dalit, male or female, they possess the sane rights and are protected by the state in the same manner and measure. REVIVAL OF CIVIC REPUBLICANISM: CIVIC VIRTUE, FREEDOM AND GOOD CITIZENSHIP The term civicrepublicanism denotes a constitutional government founded on principles of sharing of power to prevent arbitrary authority, and the involvement of citizens in public affairs to the mutual benefit of the individual and the community. In Politics, Aristotle, explicates what citizenship should ideally be and what the conditions are, in which such an ideal may be realized. The idea of citizenship around which the states were organized may be seen as manifesting the conditions in which human beings may, following the Aristotelian dictum, realize their natural slaves. In its classical formulation, therefore as a binding force in the community and as the means by which human beings could be in touch with their true nature “citizenship” emerged as a framework for securing freedom for citizens ”. This notion of citizenship as the means as well as the state or condition of freedom, has been an enduring element of citizenship since classical times. 25

Thus, an important element of citizenship as a means and condition of freedom was participation in civic life. Citizenship should not be limited to those having the capacity to participate in the process of governance as in the ultimate analysis, citizens constituted only a small part of the population, whose participation in the public sphere was made possible by the exclusion and subordination of the private sphere of the economic and social relations which are further responsible for performing principle political functions. Thus, the classical notion of citizenship, while handling down the legacy of citizenship as a ‘realm’ of freedom and participation, also dealt its association with privileges and exclusion. The idea of good citizenship defined by civic virtue defined by civic virtue, patriotism, and participatory citizenship, as stated emerged in classical antiquity, and was revived as an ideal in Renaissance proceeding to the Enlightenment Era. From the late 18 th century the civic republican tradition gave way to the liberal. The revival of civic republicanism or ‘neo – republicanism’ has come about in the non liberal as well as liberal articulations of citizens hip, taking different forms depending on the specific ideological tradition in which it is placed. By and large the revival has been attributed either to the implications the liberal ‘style’ of citizenship has had for social relations, or the intrinsic value of civic republicanism itself. Largely,

two strands of ‘neo-republicanism’

can be identified.

One strand exhibits

disillusionment with the ‘thin democracy’ that liberal citizenship has generated over the years, manifested in political apathy and passivity. While theorists on the Left would like to argue passivity by enabling and ‘empowering’ citizens through democratic participation, radical pluralists like Chantal Mouffe (1992) believe that a relation of ‘democratic equivalence’ may be established through political participation and the articulation of difference. These notions of active citizenship conform to the distinction between civil society and political society, where civil society is an extra-political arena in which individuals enter in order to articula te their purely private concerns. On the other hand, political society is generated whenever individuals communicate not their purely private concerns but rather matters of shared importance, in order to influence or make demands of the state. Michael Walzer articulated a different aspect of citizenship. Acknowledging the plurality of social life, Walzer proposes that citizenship provides a common binding principle. Citizens hip as a binding principle makes itself manifest in civil society, ‘the setting of settings’ (Walzer 1989), which provides the space individuals as part of diverse social groups are trained in civility and self-restraint. It is in this articulation of public life, in the shared forum of 26

participation of diverse groups that individuals think of a common good beyond their own conceptions of good life. Critical of the growing numbers of people who are ‘radically disengaged’ or ‘passive clients of the state’, Walzer is equally dissatisfied with politica l participation as the only form of active citizenship. He places faith in the idea of ‘critica l associationalism’, which is based on the belief that in the modern world the density of associational life and the activities and understandings that go with it need to be recaptured and relearned, and proposes that participation in voluntary organizations of the civil society including churches, families, ethnic associations, voluntary groups, schools inculcating civic virtues that bind citizens in mutual obligation. On the other hand, another strand represented by communitarian theorists such as Michael Sandel (1982) blame the passivity of liberal citizenship for the disintegration of social bonds and the rise in anomie and alienation in modern societies. Broadly, this strand like those stated, extracts from the republican tradition the focus on community and duty. However, it is distinct from them, since it omits from its programme direct political participation and the republica n concern for freedom. ALTERNATIVE PARADIGM TO INVEST IN HUMAN RIGHTS AND WORLD CITIZENSHIP An influential

stand of citizenship

theorists

argued that an increasing

globalized,

interdependent and interconnected world, marked by transitional movement of populations are multicultural national populations one can no longer talk of citizenship in terms of membership in a territorially limited 'nation state', the hitherto uncontested unit of membership. They propose the delinking of the relationship between citizenship and the nation state, replacing with global/world citizenship with its basis in human rights. Yasemin Soysal (1994), for example, argues that globalization has brought in a 'new and more universal' concept of citizenship that has 'universal personhood' rather than 'national belonging' as its core princip le. The assurances guaranteed by membership of the global civil society make the securities of the nation-state membership redundant. Much of this assurance, it is argued has emanated from the high degree of agreement on the need for human rights ,and the recognition that violatio ns of human rights have global ramifications and their protection must therefore, involve transnational efforts. The emphasis on world citizenship with human rights at its core, however, riddled with contradictions. Despite the increased role envisaged for a transitional network and cooperation, human rights by themselves are not able to ensure the development of participatory networks essential for safeguarding rights. Moreover the emphasis on human rights and the world 27

citizenship is counterbalanced by a simultaneous lament of a 'crisis in citizenship' which is addressed with the invocation of stringent immigration laws, the fortification/reinforcement of national and regional boundaries, and emphasizing 'descent' and 'blood ties' in the consideratio n of citizenship. Moreover human rights like 'citizens ' are almost always articulated in abstract and universalistic i.e. context free terms, masking the diversity and historicit y of citizens hip and rights. The idea of human rights as the replacement for citizenship rights can be retained only when citizenship is constructed in passive terms, and rights themselves are detached and distanced from the social and political structures that sustain them, and the specific struggles that produce them. CONCLUSION The significance of contemporary debates on citizenship lies in their admission that the politica l community is complex, hierarchical, and culturally and ideologically plural. Even the fact that they envisage a public sphere beyond the boundaries of the nation-state is important, since it gives an analytical framework to understand the politics of a heterogeneous public. This assures, as Iris Marion Young (1990) puts it, that (a) ‘no persons actions or aspects of a person’s life to be forced into privacy, and (b) no social institutions or practices be excluded apriori from being a proper subject for public discussion and expression’ (Young 1990: 120, 178). The significance accorded to the “contextualized self” too, is crucial in building a substantive notion of citizenship. Thus the paper pointed out the criticalities pertaining the notion of community vis a vi civic virtue regarding what constituted common concerns must be worked out continually through processes of dialogue and interaction. It is through a concerted effort at the revival of the political as an interactive public space that collective energies can be congealed into shared bonds of citizenship.

What is required

therefore,

is not the essentialisation

of

community/cultural identities into compartments that exclude dialogue, but to see how economic, social and political factors, constitute the life experiences of people within and across communities.

BIBLIOGRAPHY

Faulks, Keith, Citizenship (London and New York: Routledge, 2000). 28

Heater, Derek, Citizenship: TheCivicIdealinWorldHistory, Politics and Education (London: Orient Longman, 1990). Kymlicka, Will, MulticulturalCitizenship: Clarendon Press, 1996). Marshall,T.H., Press,1950).

CitizenshipandSocialClass

ALiberalTheoryofMinorityRights

(Cambridge,

UK:

Cambridge

(Oxford:

Univers ity

Soysal, Yasemin, LimitsofCitizenship (Chicago: University of Chicago Press, 1994). Walzer, Michael, ‘Citizenship’, in Terence Ball, James Farr and Russel L. Hanson (eds), PoliticalInnovationandConceptualChange (Cambridge: Cambridge University Press, 1989). Young, Iris Marion, JusticeandthePoliticsofDifference (Princeton, NJ: Princeton Univers ity Press, 1990)

29

NATIONAL REGISTER OF CITIZENS: LEGAL FRAMEWORK AND IMPLEMENTATION -Asmita Kumari and Ana Hafeez INTRODUCTIONNational Register of Citizens (NRC) is a register containing names of all bonafide Indian Citizens residing in Assam. The data included name, age, fathers/husband’s name, houses or holdings belonging to them, means of livelihood and so on. The register was first prepared in 1951 census under the directive of Ministry of Home Affairs to weed out the illegal immigra nts from Bangladesh and neighbouring Nations who have entered into Indian territories after midnight on 24th March 1971. These registers were kept in the offices of deputy commissio ne rs and sub divisional officers as per the center’s instructions issued in 1951.1 Assam is the only state which has an NRC as it has faced influx of people from Bangladesh since the onset of 20th century. CITIZENARY TEST-The Citizenship Act of 1955 was amended after the Assam Accord for all Indian origin people who came from Bangladesh before January 1, 1966 to be deemed as citizens. Those who came between January 1, 1966 and March 25, 1971 were eligible for citizenship after registering and living in the State for 10 years while those entering after March 25, 1971, were to be deported. These are the criteria which need to be fulfilled for being recognized as the citizen of Assam2 . March 24 1971 is taken as cut-off date by the Assam Accord because the biggest wave of migration to Assam from Bangladesh took place in March 1971 when the Pakistan army forced many to flee to India. Many people didn’t make their name in the draft of NRC because of various reasons like -



The Authors are undergraduate law students of Lloyd Law College. Five things to know about Assam’s National Register of Citizens, TIMES OF INDIA (July 31, 2018, 09:35 IST), https://timesofindia.indiatimes.com/city/guwahati/five-things-to-know-about-assams-nationalregister-of-citizens/articleshow/65207192.cms. 2 Ritu Raj Konwar, The Citizenry Test: Assam NRC Explained, THE HINDU (JULY 31, 2018, 10:38 IST), https://www.thehindu.com/news/national/other-states/the-citizenry-test-assam-nrcexplained/article24560028.ece. 1 TNN,

30

•

D-Voter-

It means dubious or doubtful voters who are disenfranchised by the government for alleged lack of proper citizenship documents. During the process of NRC, about 2.48 lakh people were considered as D- voters. •

Declared foreigner-

Under Foreigners’ Act, D-voters are tried by special tribunals to prove their citizenship and if they get fail in defending their citizenship then they are considered as declared foreigners and if they are announced as declared foreigners then they are sent to any of the six detention camps for deportation because of the quasi judicial bodies which was originally set up under the Illega l Migrants (Determination by Tribunal) Act of 1983. About 91,206 were considered as declared foreigners as on December 31, 2017. WHY THE UPDATION OF NRC IS NEEDED? Since independence till 1971, when Bangladesh was created, Assam witnessed large scale migration from East Pakistan that became Bangladesh after the war. Soon after the war on March 19, 1972 a treaty for friendship, co- operation and peace was signed between India and Bangladesh. The migration of Bangladeshi into Assam continued which triggered the need of updation of NRC in the mind of the government. ORIGIN AND STEPS TAKEN IN THE UPDATION OF NRC•

1951- In this year a method called NRC was started to catalogue the citizens, their

houses and holdings. After the establishment of NRC, local citizens of Assam has demanded to update the NRC as Assam has seen a series of migration to Assam from neighbouring countries first as a colonia l province and then as a border state in independent India. •

1979- An ‘anti-foreigners’ agitation was started and continued along with an armed

struggle led by the United Liberation Front of Assam demanding a sovereign state for indigenous Assamese people. •

1980- To bring the regular influx of immigrants to the notice of then Prime minis ter,

the all Assam students union submitted a memorandum to Indira Gandhi in 1980 seeking her “urgent attention” to the matter.

31

•

1983- Parliament enacted the illegal migrants (determination by tribunal) Act (IMDT),

1983. This act made applicable only to Assam, was expected to identify and deport illega l migrants in the state. •

1985- After the signing of the Assam Accord between representatives of Governme nt

of India and the leaders of the Assam Movement in New Delhi on 15 th August 1985, the antiforeigners agitation came to an end which provided the arrangement of those who have entered the state before 1966. And those who entered the state between 1966 and 1971 would be deleted from electoral rolls and lose their voting rights for 10 years. Those who entered on or after March 25, 1971, on the eve of the Bangladesh war would now be declared as foreigners and will be deported. •

2005- A tripartite meeting among the Centre ,Assam government and all Assam

students union headed by the then Prime Minister Manmohan Singh decided to update the NRC. •

2009- Supreme Court got involved in this matter after a writ petition filed by the Assam

Public Works. •

2010- Pilot projects were started for updating the NRC but were stopped because of

some law and orders situations. •

2011- The State government set up a cabinet sub-committee to simplify the procedure

of updating NRC. •

2013- The process of updating NRC started as per the Supreme Court order given by

Justice Ranjan Gogoi and Justice R.F. Nariman. The NRC updation was furthered as per the Citizenship Act 1955 and according to the rules framed in the landmark Memorandum of Settlement (MoS) - the Assam Accord. •

2014-

The

Supreme

Court

directed

the

government

after

the

Assam

SanmilitaMahasangha v. Union of India3 case which challenged the section 6A of Citizens hip Act to resume the NRC updating process. ACTS WHICH LEADS IN THE IMPLEMETENTATION OF NRC•

CITIZENSHIP ACT 1955-

Citizenship belongs to everyone in the territory of state as described by the principle of Jus Soli (right of the soil) and Jus Sanguinis (right of blood). The Constitution describes the various categories of persons who are eligible for the citizenship as described in the Articles 5-11 of 3 Assam SanmilitiaMahasangha

v. Union of India, A.I.R. 2015 S.C. 783 (India).

32

the constitution which was enforced on November 26, 1949. Article 11 of the Constitutio n empowers the Parliament to regulate citizenship by law and under this The Citizenship Act, 1955 was passed. It has been amended in 1986, 2003, 2005 and 2015 for the grant of citizenship. According to the Citizenship Act (1955), an illegal immigrant is defined as a person who enters India without a valid passport or stays in the country after the expiry of the visa permit and also those people who uses false documents for the immigration process. 4 •

THE 1986 AMENDMENT OF CITIZENSHIP ACT, 1955-

This amendment inserted Sec 6A under which all persons of Indian origin who had entered Assam before 1 January, 1966 and been its ordinary residents were deemed to be Indian citize ns and those who came after 1 January, 1966 but before 25 th March, 1971, were to get citizens hip up on registration at the expiry of 10 years after they had been detected as foreigners; and those persons who had entered after 25th March, 1971 by the identification under the IMDT Act, 1983 were to be deported. ` •

THE IMMIGRANTS (EXPULSION FROM ASSAM) ACT IN 1950-

The Parliament had enacted this Act for the protection of social and cultural interests of the Assamese people by which the Central government could order the removal of any person who had come into Assam from outside India and whose stay is detrimental to the general public of India or of any section thereof or of any scheduled tribe in Assam. •

CITIZENSHIP REGISTRATION OF CITIZENS AND ISSUE OF NATIONAL

IDENTITY CARD RULES (2003)These rules were amended in 2009 and 2010 for preparation of National Register of Citizens by inviting applications from the people of Assam for updation of the old (NRC) 1951 of Assam based on relevant records. In 2010, to start the updation process of NRC in Assam, Pilot Projects were created for updation of NRC in two blocks (one each in Kamrup and Barpeta Districts) but they were stopped due to legal problems. In July 2011, Cabinet Sub Committee was set up by Government of Assam to make the procedure easy for updating of NRC in Assam. In 2013, the Government of Assam had submitted revised modalities which were examined by the Registrar General of India and approved by the competent authority for updation of NRC work. The work of updation of NRC 1951 will be done by including the

4 Faizan

Mustafa, Who Is a Citizen- In Assam, India? INDIAN EXPRESS (June 6, 2018. 7:31:52 IST), https://indianexpress.com/article/explained/who-is-a-citizen-in-assam-india-citizenship-act-nrc-5205603/ .

33

names of persons from the electoral rolls up to the midnight of March 24, 1971 and their descendants. In 2013, a Gazette Notification has already been issued for updating NRC 1951 in whole of Assam. Rule 4A of Citizenship Rules, 2003 and its Schedule that are central to NRC updation are also made applicable on Assam. Rule 4A differentiates preparation of the NRC in Assam from the rest of the country by replacing house to house enumeration with invitation and receipt of applications from all citizens, for collection of specified particula rs relating to each family and individual, residing in the state and it also provides for ascertaining of citizenship status based on the NRC, 1951 and Electoral Rolls up to the mid night of the 24th March, 1971. It also provides for inclusion of such persons in NRC who are origina l inhabitants of Assam and whose citizenship is beyond doubt. •

THE CITIZENSHIP AMENDMENT BILL 2016-

The government was planning to change the definition of illegal migrants and in 2016, this bill came which seeks to amend the 1955 Act to provide citizenship to illegal migrants from Pakistan, Bangladesh and Afghanistan, who are of Hindu, Sikh, Buddhist, Jain, Parsi and Christian the eligibility for citizenship if they had entered the country before December 14, 2014. In the original Act, an applicant who has obtained citizenship by naturalisation must have resided in India during the last 12 months, and for 11 of the previous 14 years. This Bill relaxes the 11-year requirement to six years for applicants belonging to these six religious communities and three countries. The idea of this bill is behind the promise which had been made by BJP in 2014 general election to welcome Hindu refuges and to provide shelter to them. The bodies like Assam Gana Parishad (AGP), congress (Opposing party) and certain NGOs were opposing this bill as they said that this bill is working against the cultural and linguistic identity of the indigenous people of the state and also the process of deportation or duration of detention is not clear as mentioned by the government because they are not considering the Muslims who were identified as undocumented immigrants and this would be clearly discriminating towards them. •

THE CITIZENSHIP AMENDMENT BILL, 2019-

The present status of the citizenship in NRC has changed because of The Citizens hip Amendment Bill, 2019 passes on Jan 8, 2019 which has been strongly criticized by large section of people and organizations in the northeast because the bill seeks to provide Indian Citizenship to persecuted minorities-Hindus, Sikhs, Jains, Buddhists and Christians- from Bangladesh, Pakistan and Afghanistan after they have been stayed in Indian from 7 years,

34

instead of 12 years at present. This is applicable to those who came to India before December 31, 2014. The citizenship would not be granted to any foreigner without the consent of State governme nts concerned after the transit of Citizenship (Amendment) Bill, as said by the Home Ministr y. Earlier, the six religious minorities from Pakistan, Bangladesh and Afghanistan were earlier given a special dispensation for grant of long term visas now they all have to prove that they belonged to any of the three countries and were persecuted on religious basis. This bill has been opposed on the basis that it will nullify the provisions of Assam Accord of 1985, which fixed March 24, 1971 as the cut-off date for deportation of all illegal immigrants but not on the basis of religion.

There have been protests against the Bill from starting as it was introduced and passed in Lok Sabha, but Home Minister Rajnath Singh has already declared that “the Bill will only apply to all the states and Union

Territories

and the beneficiaries

can reside anywhere”.

CHALLENGES FACED BY THE GOVERNMENT IN THE UPDATION OF NRCThe matter of updating NRC has been politicized after the publishment of the second and the final draft in which the names of 40, 07,707 people in Assam were not included in the list. The Trinamool Congress (TMC) and the Congress have opposed the implementation of NRC as there was no earlier discussion between the centre and the Bangladesh government before publishing the NRC draft as well as no pact has been signed between India and Bangladesh for the deportation5 . On the other hand, BJP was defending the process of updating NRC. Even though the updation of NRC in Assam is being carried on under the supervision of the Supreme Court and also the BJP government is giving utmost attention to this matter, it would be difficult o implement it properly and effectively because of the following reasons•

Since around 40 lakhs people were not mentioned in the second draft of NRC and even if the figure decreases to its half number after hearing to claims, it would be very diffic ult for the Union to deport those people to Bangladesh. And also the neighbouring countries have already stated that this issue is totally an internal matter of Assam and it has nothing to do with them. According to the reports Hasanul-Haque Inu, Bangladesh's Informatio n

PTI, Not opposed to NRC but to the way it’s being implemented: Congress, TIMES OF INDIA (Aug. 2018, 19:40 IST), https://timesofindia.indiatimes.com/india/not-opposed-to-nrc-but-to-the-way-its-beingimplemented-cong/articleshow/65368084. 5

35

Minister has given statement to the Indian media that his country need not respond because the 40 lakh people were not Bangladeshis.

These people belonged to Assam's

neighbouring states in India, he added. •

Several discrepancies are being noticed in the final draft of NRC. For example- In one case the name of one of the twins is missing, in another, the child's name is missing while that of the mother is there or maybe the name of a spouse is not there etc. It would become almost impossible for the government to force the separation of members from one family and deport them to Bangladesh.

•

The implementation of NRC may lead to the situation of civil war not just in Assam but also in other parts of India. Most of the people whose names are not in the list are Muslims. They might feel persecuted under the rightist BJP led Modi government at the centre and SarbanandaSonowal government in Assam.

•

According to the plan those people whose names are not included in the NRC would be barred from the voting rights. But there are several cases in which people are having bogus official identity cards such as Aadhaar, PAN card, ration card and even voter's identity card due to lack of administration. Such scenario depicts that the government may not be able to stop the illegal immigrants from voting.

•

Those people whose names are not in the NRC will not be entitled to buy land or a house in India but it would be very difficult for the government to retrieve the land or houses which has been already registered on the names of such people. Even if the governme nt succeeded in retrieving those properties it may not be able to stop people from buying benami properties which are quite common in India.

CHALLENGES FACED BY THE CITIZENS IN THE UPDATION OF NRC•

In March last year, the Guwahati High Court dismissed the residency certificates issued by the Gram Panchayat stating that it could not be used as a link document connecting people born after 1971 with their ancestors. This decision affected women the most as they are mostly dependents either on the husband or parents and they do not have much documents. But the Supreme Court overruled the decision and allowed the women those who are categorized as “original inhabitants” and relying on such certificates made it to the first draft of the register, published on December 31, 2017.

36

•

In the first draft around 1.4 crore people were not included and in the second draft the figure decreased to 40 lakh. Among them 2.48 people are tagged as D-voters. Now the people not mentioned in the list need to file applications and claims for being mentio ned in the NRC list.

•

Many people who have been missing from Assam are being labeled as illega l immigrants however the officials prefer to call them undocumented individuals. 6

•

Due to annual floods, the villages in Assam gets ravaged and disappears by the current o fiery Brahmaputra River. Because of this natural disaster, documents get destroyed and address changes. This is a major problem which the authorities should take into consideration.

•

It is often noticed that instead of helping, officials asks for inaccessible evidence and generally being uncooperative.

•

Many people including the poorest and illiterate have been running here and there with their old and damaged documents to prove their identity.

•

There have been several cases where families have been divided as some are declared doubtful voters and foreigners while others are declared bonafide citizens.

MEASURES TAKEN

BY THE GOVERNMENT FOR OVERCOMING THE

PROBLEMS•

According to the notice issued by NRC state coordinator, government of Assam, name, etc correction- services for online correction of names and other particulars appearing in draft NRC will be started from 2nd January 2019.This facility can be availed by visiting NRC Assam’s website www.nrcassam.nic.in. The facility for name correction will also be available by submission of correction forms at NRC SevaKendras (NSKs) till 31/1/19.

6

India Today Web Desk, People not in NRC won’t be jailed or deported: All you should know about Assam’s National Register of Citizens, INDIA TODAY (July 30, 2018, 14:210) IST,https://www.indiatoday.in/education-today/gk-current-affairs/story/assam-nrc-national-register-ofcitizens-second-final-draft-1300022-2018-07-30.ht ml.

37

•

The applicants can also call on

the toll free numbers—15107 for Assam and

18003453762 from outside the Assam by referring to their 21 digit application receipt number(ARN) which is issued against online application form. •

A joint committee of the state and central government was appointed to study the position of those not in the final NRC. 7

•

On 31st July 2018 the Supreme Court announced that the authorities will not take coercive action against the 4 million people, whose names did not figure in the NRC, on the grounds that the 30th July NRC was merely a draft. 8

•

On August 14 2018, the Centre informed the Supreme Court that distinct IDs containing biometric information will be created for the 4 million people filing claims and objections against the 30th July draft.

•

The Supreme Court advised the Centre and Assam to assume role of an ‘Aristotelia n State’ in finalizing the Assam National Register of Citizens (NRC).

•

As many people’s name were not in the list of NRC Assam the Supreme Court said that the filing of claims would begin on 25 th of September and will continue for the next 60 days. The documents that can be used for filing the claims areI.

Land documents like registered sale deed, records of land rights up to march 24 1971 (midnight).

II.

Permanent residential certificate issued from outside the state up to March 24, 1971(midnight).

III.

Passport issued by the Government of India up to March 24, 1971(midnight).

IV.

Life insurance corporation of India insurance policy(LICI) of relevant period up to March 24, 1971 (midnight)

V.

Any license /certificate issued by any government authority of relevant period i.e. up to march 24, 1971 (midnight).

VI.

Document showing service/employment under government /public sector undertaking up to march24, 1971 (midnight).

VII.

Bank /post office accounts of relevant period i.e. up to March 24, 1971 (midnight).

7 Ratnadip

Chaudhary, 2.6 Lakh Objections Received In Assam citizen list, Most In Last 3 Days, NDTV (Jan. 2, 2019, 03:17 IST), https://www.ndtv.com/india-news/assam-nrc-national-register-of-citizens-list-26-lakh-objections-received-most-in-last-3-days-1971162.html. 8 Ashish Tripathi, No coercive action against anyone on basis of NRC: SC, DECCAN HERALD (July 31, 2018, 22:45 PM), https://www.deccanherald.com/national/no-coercive-action-against-684802.ht ml.

38

VIII.

Birth certificates issued by the competent authority up to March 24, 1971 (midnight).

IX.

Educational certificates issued by board/universities up to March 24, 1971 (midnight).

X.

Records /processes pertaining to court up to March 24, 1971 (midnight) provided they are a part of a processing in a judicial or revenue court.

CASES RELATED TO NRC•

In 2005, a three-judge Bench led by Chief Justice of India R C Lahoti struck down the IMDT Act as unconstitutional since it applied only to Assam and was at variance with the Foreigners’ Act, 1946. It expressed concern over demographic change in Assam, and made references to “international Islamic fundamentalism”9 .

•

In 2007, the court quashed the Foreigners (Tribunals for Assam) Order, 2006, which put the onus of proving a person a foreigner on the complainant (Sonowal II, December 5, 2006). 10

•

In 2014, where the constitutionality of the 1986 amendment was challenged, the court referred the matter to a Constitution Bench. The division bench of Supreme Court comprising CJI Ranjan Gogoi (then Justice) and Justice Rohinton Nariman held the updation of NRC under the Citizenship Act 1955 and Citizenship (Registration of Citizens and Issue of National Identity Card Rules) 2003. The Court directed that the Standard Operating Procedure (SOP) for filing objections to the NRC list should be examined by stakeholders and petitioners in the current litigation. The Court named eight stakeholders — Assam Public Works, Assam SanmilitaMahasangha

(an

indigenous people’s organisation of Assam), National Democratic Front of Bodoland (Progressive), Indigenous Tribal Peoples Federation, All Assam Bhojpuri Parishad, Joint Action Committee for Bangali Refugees, All Assam Minorities Students’ Union (AAMSU) and Jamait Ulama-i-Hind – for the purpose.11

9

SarbanandaSonowal v. Union of India, (2005) 5 S.C.C. 655 (India). Ibid. 11 Assam SanmilitiaMahasangha v. Union of India, A.I.R. 2015 S.C. 783 (India). 10

39

In the three judgments- 2005, 2006 and 2014, the Supreme Court had expressed displeasure about the citizenship law in respect of foreigners who had entered Assam, being different from the law in the rest of the country. CONCLUSIONAccording to the notification issued by the Registrar General of India, “The central governme nt has considered it necessary and expedient in the public interest to complete the said enumeration in connection with the updating of National Register of Citizens, 1959, by the 30th day of June 2019.”12 According to Prateek Hajela, NRC programme coordinator “the government has cleared its stand and if there are people whose names are not present in NRC will neither be jailed nor will they be deported.” Even after the final NRC list is published, people will still have the right to appeal in the foreigner’s tribunal after which applicants can approach the High Court if they are not satisfied with the result of the NRC process. But it is the matter of concern that what will be the fate of those people who will fail to prove their identity as Indian whether they will be jailed or deported or if they are going to stay in India then what will be the position of those people and rights available to them. REFERENCES Websites•

https://www.thehindu.com/news/national/other-states/centre-extends-deadline-to-

update-nrc/article25843641.ece •

https://www.deccanherald.com/national/no-coercive-action-against-684802.html

•

https://timesofindia.indiatimes.com/india/not-opposed-to-nrc-but-to-the-way- its-

being-implemented-cong/articleshow/65368084.cms •

https://timesofindia.indiatimes.com/city/guwahati/five-things-to-know-about-assams-

national-register-of-citizens/articleshow/65207192.cms •

https://www.thehindu.com/news/national/other-states/the-citizenry-test-assam-nrc-

explained/article24560028.ece

12

PTI, Centre extends deadline to update NRC, THE HINDU (dec.27, 2018, 14:31 IST), https://www.thehindu.com/news/national/other-states/centre-extends-deadline-to-updatenrc/article25843641.ece.

40

THE NRC REGIME: PAST, PRESENT AND FUTURE - Aviva Jogani and Mohak Kapoor I.

ABSTRACT

The National Register of Citizens (“NRC”), which is being updated for the first time since 1951, is meant to be a definitive list of Indian citizens in Assam, separating them from those the State believes are “illegal migrants”. 1 This administrative document, not open to public inspection, decides the fate of millions of people residing in Assam.2 As per the Rules framed by the Central Government under the Citizenship Act, 1955, the procedure of which is currently being supervised over by the Supreme Court of India, every resident is required to submit necessary documents to prove his/her citizenship status.3 Failure to produce such documents would not only declare them as “illegal migrants” in a country where they have been residing since several decades, but also result in their repatriation to the country of which they are found to be citizens.4 The entire controversy emanates from the amendment to the Citizenship Act that added Section 6A to the Act in 1985, in terms of the Assam Accord, which was a politica l settlement that resulted in peace in Assam after years of discord and violence.5 The Amendment granted citizenship to the people who came from East Pakistan, now Bangladesh, up till a certain date only.

While the 1985 Amendment and subsequent Rules framed under the Act are being ‘implemented’, the on-going debate around the issue of updating the NRC is two-fold. The proponents of updating the NRC believe that India is a developing country with limited available resources. Thereby, the indigenous population of Assam must be protected from the influx of illegal migrants to safeguard their employment opportunities and access to basic resources along with their culture and identity. The opponents of updating the NRC believe that apart from being an attack on the minority Muslim population most of these people, albeit likely illegal migrants, have been residing peacefully in Assam for several decades. Disrupting

 The Authors

are undergraduate law students at O.P. Jindal Global University, Sonipat. Paper on Foreigners Issue”, Home and Political Department, Government of Assam, available at: 2 Anil Roychoudhury, “National Register of Citizens, 1951”, Economic and Political Weekly, Vol. 16, No. 8 (1981), pp. 267-268 3 Assam SanmilitaMahasangha&Ors v. Union of India, Writ Petition (Civil) No. 562 of 2012, para 42-48 4 Supra note 1; Citizenship Act, 1955; Citizenship Rules, 2003 5 Citizenship (Amendment) Act, 1985; Assam Accord, 1985, available at: 1 “White

41

their life, which they have built over several years, would be morally injudicious. This paper seeks to reconcile these conflicting views and arrive at an amicable way forward. In the first part of this paper, the authors will trace back to the history and events leading up to the initiation of the procedure of updating the NRC, including the Amendments to the Citizenship Act and Rules framed thereunder. In the second part of this paper, the authors seek to examine the legal framework and implementation of the NRC in Assam. The third part of this paper will be dedicated towards providing a critical analysis of the post-NRC regime and issues regarding illegal migrants in Assam, includ ing the inadequacies of the remedies for those declared illegal migrants. In conclusion, the fourth part of this paper is aimed at arriving at an amicable solution to this problem, which has gained international recognition. II.

PART ONE: HISTORICAL BACKGROUND

Since the past few decades, indigenous Assamese groups have put immense pressure on the State to implement the process for updating the NRC; a formidable issue stemming from the influx of migrants first witnessed in Assam as a colonial province and subsequently as a border State in Independent India.6 The partition of India and Pakistan in 1947, along with the communal riots that followed, had a wide-ranging, radical effect on the demographic composition in Assam, resulting in nearly 5,00,000 refugees from East Pakistan seeking shelter in the State.7 Reacting to this alarming crisis, The Immigrants (Expulsion from Assam) Act, 1950 was passed giving the Central Government powers to remove specified persons from the State whose stay was detrimental to the interests of the general public, but excluding its application on any person residing in Assam on account of civil disturbances, or fear of the same, in Pakistan.8 A new set of communal riots broke out in Assam and East Pakistan in 1950 causing countless persons to flee their homes. Jawaharlal Nehru and Liaquat Ali Khan, former Prime Minister of India and Pakistan respectively, signed a pact on 8 th April 1950 referred to as the “Nehru-Liaquat Agreement” allowing refugees from both countries to return to their respective homes by 31st December 1950 in order to secure the rights to their immoveab le properties.9

FPJ Web Desk, “Assam NRC Issue: What is NRC And What Happens To 40 Lakh People Left Out In The Draft; All You Need To Know”, Free Press Journal (2018), available at: 7 Supra note 1 8 The Immigrants (Expulsion from Assam) Act, 1950 9 Jawaharlal Nehru & Liaquat Ali Khan, “Agreement between India and Pakistan on Minorities” (1950); Supra note 1 6

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The so-called “foreigners issue” began with the preparation of the NRC in 1951, by incorporating the particulars recorded in the Census of 1951, to weed out illegal migrants from East Pakistan, resulting in “state sponsored” persecutions and violence against the minor ity Muslim population in Assam.10 Religious discrimination in Assam soared in the late 1960’s with thousands of Muslims being deported to East Pakistan under the Prevention of Infiltra tio n from Pakistan (PIP) Scheme that was intended to prevent infiltration at border outposts and create an unpleasant atmosphere for the people of Pakistan entering India. 11 Several Muslims were forced out of the country without any formal or legal mechanism for deportation with many families being termed as “illegal migrants” and served upon with “Quit India Notices” ordering them to leave the country. Although the PIP Scheme was abandoned in 1969 after its purpose was served with nearly 1,92,079 persons being deported back to Pakistan, arbitrary violence and persecutions against Muslim minorities continued in Assam.12 This humanitarian crisis took a new turn in 1971 during the Bangladesh Liberation War between West Pakistan (now Pakistan) and East Pakistan (now Bangladesh) that resulted in the formation of an independent Bangladesh, wherein a large number of Bangladeshi’s migrated to Assam in order to escape the armed conflict and violence perpetrated during the war. 13 The rise in Bangladeshi migrants within Assam territory triggered of a series of “anti-foreigner agitations” leading to the All Assam Student’s Union (AASU) and All Assam Gana Sangram Parishad (AAGSP) demanding protection of the interests of indigenous Assamese population, compelling the government to deport the illegal migrants. 14 The six-year long xenophobia from 1979 to 1985 witnessed frequent strikes, ethnic violence, unstable governments and cost countless lives, including victims of the infamous “Nellie Massacre” of which nearly 3,000 were Muslims.15 However, on August 15, 1985, the “anti-foreigner agitations” came to an end with the signing of the “Assam Accord” between AASU, AAGSP and the Government of Assam. The Accord placed 1.1.1966 as the base date and year for the purpose of detection and deportation. Those who entered Assam between 1966 and 1971 would be deleted from the 10 “NRC:

In A Nutshell”, Office of the State Coordinator of National Registration (NRC), Assam, Government of Assam, available at: ; Abdul Kalam Azad, “Assam NRC: A History of Violence and Persecution”, The Wire (2018), available at: 11 Supra note 1 12 Supra note 10 13 “Bangladesh War of Independence”, New World Encyclopedia, available at: 14 ShorboriPurkayastha, “Nellie Massacre-How Xenophobia, Politics Caused Assam’s Genocide”, The Quint, available at: 15 Supra note 10

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electoral rolls and be disenfranchised for a period of 10 years. Those who entered Assam on or after March 25, 1971 would be declared as “foreigners” and thus deported. The Assam Accord is the basis for updating the National Register of Citizens. 16 The Assam Accord has been legitimized under Section 6A of the Citizenship Act, 1955. This Section has been challenged before the Supreme Court of India on the ground that it contrasts Article 6 of the Constitutio n according to which the cut-off date for determining citizenship in India is July 19, 1948. The Bench comprising of Justice Ranjan Gogoi and Justice R.F. Nariman directed this issue to be referred to a larger five-judge constitutional bench, which is still pending for final determination before the Apex Court. 17 III.

PART TWO: NATIONAL REGISTER OF CITIZENS

The National Register of Citizens is a register containing names and particulars of all “Indian” citizens. The first, and only, time the NRC was prepared was in 1951 after the conduct of the Census of 1951, on the basis of the data recorded of all persons enumerated during that Census.18 The updating of the National Register of Citizens has been well received and viewed as a way of finally putting to rest festering debates around undocumented immigrants in Assam.19 However, according to Tarun Gogoi, former Chief Minister of Assam, there was no mention of updating the NRC from 1985 to 2005. 20 Although the NRC is a mode of implementation of the Assam Accord, the relationship between the two is tenuous at best since the Assam Accord makes no mention of the NRC being used as a means to detected illega l migrants and there is twenty year gap between signing of the Assam Accord and the first round of talks for updating the NRC. The NRC is currently being updated since 2015 due to two reasons. First, under the December 2014 Supreme Court directive 21 and second, the 2005 tripartite agreement between the Manmohan Singh and TarunGogoi governments and the All Assam Students Union (AASU) to implement the Assam Accord.22

16 Supra note

5 Mohsin Alam Bhat, “On The NRC, Even The Supreme Court is Helpless”, The Wire (2019), available at: ; Supra note 3 18 Supra note 10 19 Ajaz Ashraf, “NRC: The Assamese Middle Class Has Shrunk The Idea Of Citizenship But Now Faces Pressure From Below”, Scroll.in (2019), available at: 20 Ajoy Ashirwad Mahaprashasta, “Interview| NRC Is My Own Baby, BJP Has Made It Weak And Sick: TarunGogoli”, The Wire (2018), available at: 21 Supra note 3 22 Sangeeta BarooahPisharoty,“The NRC and Citizenship Bill Have Fuelled Old Divisive Anxieties in Assam”, The Wire (2018), available at: 17

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Section 2(1)(b) of the Citizenship Act defines an “illegal migrant” as a foreigner who has entered India without a valid passport or other prescribed travel documents. The Assam Accord sets March 25, 1971, as the cut off date for identification and deportation of illegal migrant s from East Pakistan (now Bangladesh). The Foreigners Act, 1946 confers upon the Central Government the power to pass orders restricting the entry of foreigners in India. The Citizenship (Registration of Citizen and Issue of National Identity Cards) Rules, 2003 authorizes the Registrar General of Citizen Registration to prepare and maintain the National Register of Indian Citizens in the State of Assam. Section 3(3) of the 2003 Rules lists down the particulars that have to be collected from each individual for the preparation of the NRC. There exists a maze of documents that need to be submitted in order to establish such relations hip between people such as mark sheets, passports, land records and others. The most crucial document is the “legacy data”, i.e. if a person’s name appears in the NRC of 1951 or in the electoral rolls till 1971; they and their descendants become Indian citizens and subsequently appear in the updated NRC.23 Those whose names do not appear in the updated NRC will have to go through the judicial procedure of Tribunals, set up exclusively for Assam, to establish their citizenship.24 Initially, tribunals formed under the Illegal Migrants (Determination by Tribunals) Act, 1983 operated as the judicial body to determine claims regarding illeg a l migrants. However, the Supreme Court struck down the Act in 2005 as it was found to be violative of Article 14 and 355 of the Constitution.25 Ever since then, talks to update the NRC have surfaced. Consequently, the Immigrants (Expulsion from Assam) Act 1950 together with the Foreigners Act and the Foreigner Tribunal Order of 1964 have become the new tools in the hands of the Government to detect illegal migrants. The first “pilot project” to update the NRC began in 2010, which was put to standstill due to the protests by AASU. The Supreme Court passed an order in 2014, directing the process for updating the NRC to be completed by January 31, 2016.26 The State missed the deadline and the first draft of the NRC was published on December 31, 2017. The second, and final, draft of NRC was completed on July 30, 2018. Nearly 1.4 Crore and 40 Lakh names have been excluded from the first and second draft, respectively. This figure includes about 2.48 Lakh

Mandal, Abhay Sharma and Prashant Chauhan, “Assam NRC: The Citizenship Chaos That Has The State On The Edge”, The Quint (2018), available at: 24 The Foreigners (Tribunals) Order, 1964 25 SarbanandaSonowal v Union of India &Ors, AIR 2005 SC 2920 26 Supra note 3 23 Tridip

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disenfranchised voters (“D-voters”).27 The Supreme Court has vehemently reiterated that it will not extend the deadline for publication of the final Assam NRC. As discussed above, those who do not find their way to the final list will have to argue their case before the Foreign Tribunals set up in Assam. The entire procedure adopted by the State of Assam to weed out illegal migrants has been widely criticized for it has placed the burden of proof on every citizen of Assam to prove their identity; setting it apart from customary deportation procedures wherein the onus of proof is on the State to show whether or not an individual is residing in a particular country illegally or undocumented.28 This draconian procedure of requiring every individual to come forth and prove his/her identity is not only morally absurd and unprecedented but also puts people in an embarrassing situation by creating an atmosphere of uncertainty and anxiety about oneself. IV.

PART THREE: CRITICAL ANALYSIS OF THE POST-NRC REGIME

So far, the Authors have thrown light upon the past and present scenario regarding the NRC in Assam; the current section is a leap into the future of this humanitarian crisis. Given the shee r size of this procedure, the moral and legal consequences of implementation of the NRC are but naturally ruminated upon by all since the consequence of this scheme has the ability to leave a daunting echo upon the legal framework and life of every individ ual in this country. With 4 million people being excluded from the final draft of the NRC, Assam is looking at a huge problem of Statelessness, extraordinarily and dauntingly larger than the one reported in Myanmar’s Rakhine Province.29 The numbers reported have been no less than an opponent for this scheme and for the Central Government themselves. Millions of people being left out of the draft list, in what they call as their “home state”, with most of them facing hardships in filing their claims, has encouraged many critics of this scheme to brand it as “an immine nt crisis.”30 Hence, the urge to ask, “what will happen once the scheme is implemented completely?” follows naturally. The first plausible effect of this scheme is directly linked to the condition in which these alleged “illegal citizens” would be left once ousted from what they believe to be their home state. Since 27 Supra note

6

“Misleading and Factually Incorrect: A Response to an Article Linking NRC to Assamese Chauvinism”, Scroll.in (2018), available at: 29 SubirBhaumik, “Assam is slipping into a Quagmire”, The Telegraph (2018), available at: 30 Supra note 17 28 SanghamitraMisra,

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the commencement of the process of updating the NRC, the Central Government has re-iterated that the goal behind this procedure is to weed out illegal migrants who have been living, undocumented, in the State of Assam. In furtherance of the same, the State has clarified that all those who do not make it to the final list of the updated NRC will be deported, as per the Assam Accord, to the country of which they are found to be citizens. Looking at the historic a l context with respect to the influx of illegal migrants in Assam, a reasonable presumption can be drawn that most of them will be deported to Bangladesh, since that is where most of them arrived from after the Liberation War of 1971. 31 As ideal and convenient as this might sound, the reality is the polar opposite. Looking at the strong stance taken by Bangladesh’s High Commissioner to India, Syed Muazzem Ali, on the NRC by deeming it to be an “internal issue” within India rather than a “bilateral issue” between the two countries, 32 with no air about any formal agreement between the two countries to accommodate the people not included in the final list, makes it abundantly clear that Bangladesh does not intend to accommodate the surge of refugees into their country in the event of any deportation carried out. Bangladesh’s stance clearly crosses the boundary of limiting NRC to an “internal issue” within India as it has far reaching international humanitarian consequences that have to be considered since the Assam government, in their issued White Paper, has expressly laid down that once the Foreigners Tribunal deems any person as an illegal citizen, the said person shall be subjected to deportation.33 Additionally, it must be noted that while the State has declared many of these people as foreigners, there exists no repatriation treaty between Indian and Banglades h whereby they can be deported.34 The question thus naturally follows is, “if Bangladesh is not taking in these people, then where will they be deported?” The next stop for these declared “illegal migrants” is a detention center. A detention center, simply put, is a holding place wherein once declared stateless, people reside as refugees awaiting asylum. Thus, if such “Bangladeshi Citizens” as declared, are not given asylum in Bangladesh, they will be placed in detention centers until any other alternative is found. As per the Assam government, such centers are being used to hold declared “ille ga l migrants” in order to prevent them from going untraced. 35 Assam has received permission from “NRC Final Draft: Why Deportation Is A Rather Impossible Idea”, News 18 (2018), available at: 32 SubirBhaumik, “NRC ‘Internal Affair’ of India: Bangladesh High Commissioner”, Northeast Now (2018), available at: 33 Supra note 1 34 Supra note 6 35 Supra note 1 31 RituparnaBhuyan,

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the Government to construct their first detention center, which has the capability of housing 3000 persons. These declared “foreigners” have been torn apart from their families and made to suffer in legal limbo since several years. 36 If we consider the long painful human history of detention centers, the future for the declared “foreigners” in Assam looks bleak. Additionally, these detention centers are not open to inspection by human rights workers, due to which the conditions of their inmates has never come to public attention.37 However, in 2017 a group of non-official human right workers and researchers had been allowed by the National Human Rights Commiss ion to visit these camps as special monitors. The accounts presented by them support the conventional assumptions and notions held about such detention centers. Their accounts speaks of detainees, who have been deemed foreigners and put in these centers, to have had no legal representation and hearings, resulting in their proceedings being carried out ex-parte.38 No proper legal hearing, instances of jail like treatment, brutal conditions and stories of families being torn apart by such questionable proceedings are many. If the NRC regime is heading towards a future wherein such centers are erected to house people declared as foreigners, India will be exposed to immense international pressure from the United Nations and other such human rights organizations for their gross violations of globally recognized human rights norms. Much like the previous humanitarian crisis the world has seen, i.e. the 2015 Rohingya crisis wherein millions of refugees were stranded with no country willing to offer them shelter 39 , a catastrophe of a much larger magnitude can be seen heading India’s way. The international community has repeatedly taken a firm stance when it comes to human rights violations of this magnitude. This fact alone must be thoroughly pondered upon by India before taking any hasty decisions in this regard. Another crucial factor is that the Supreme Court of India, the Apex body of justice in the country, is supervising the procedure of updating NRC. If a refugee crisis or instances of human rights violations in these detention camps arise and enter into the international sphere, the

36 Supra note

6 Harsh Mander, “The Dark Side of Humanity and Legality: A Glimpse Inside Assam’s Detention Centres For Foreigners”, Scroll.in (2018), available at: 38 Ibid 39 “Rohingya Refugee Crisis”, OCHA, United Nations Office for Coordination of the Humanitarian Affairs, available at: 37

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sanctity and working of our apex justice mechanism could be called into question as well as to how they could allow such blatant violations under their supervision? Finally, as already discussed above, the amendment to the Citizenship Act that added Section 6A to the Act in 1985 has been challenged before the Supreme Court of India on the ground that it contrasts Article 6 of the Constitution. The Supreme Court directed this issue to be referred to a larger five-judge constitutional bench, which is still pending for final determination before the Apex Court.40 This fact begs the question as to how the Supreme Court has allowed the Centre to carry out and undertake an unprecedented procedure like the NRC, under its direct supervision, under a law which as of now is still under dispute for being constitutionally invalid? If the larger bench finds Section 6A of the Citizenship Act to be in violation of the constitutional provisions, then the whole procedure of NRC will be rendered void and unjustifiable. This paradox of the judicial process, appears to have been completely overlooked in the current discussions of NRC, but brings forth uncomfortable questions upon the whole regime.41 V. PART FOUR: CONCLUSION The opponent of updating the NRC have expressed their discontent from all fronts; be it the political front of criticizing the ruling party to have done this in order to strengthen their vote bank, to the legal front which is challenging the constitutional validity of the section 6A of the Citizenship Act. The politicians of this country have politicized this issue to such an extent the contentious Citizenship Bill, 2019 has been passed in the Lok Sabha last week, which seeks to provide Indian citizenship to Hindus, Jains, Christians, Sikhs, Buddhist and Parsis from Bangladesh, Pakistan and Afghanistan after six years of residence in India instead of twelve years currently even if they do not possess any documents required. In other words, the Bill seeks to provide Indian citizenship to any non-Muslim from the above-mentioned countries.42 Several debates by imminent persons all over India, over the issue of NRC, have suggested that a middle ground be reached regarding the status of “illegal migrants ” in Assam. It has been opined that these declared “foreigners” must not be subject to deportation or detention centers, i.e. they must be allowed to peacefully reside in the State of Assam; but at the same time they must be declared disenfranchised voters. While this might seem like the best option availab le 40 Supra note

3 17; Ibid. 42 PTI, “Lok Sabha Passes Contentious Citizenship Bill Amid Protests”, The Wire (2019), available at: 41 Supra note

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at this point in time, the fact that voting rights are an essential part of every individual’s life in a democratic country cannot be disregarded. Considering the fact that India is a country of inclusion and acceptance, such a move would be undignified and an embarrassment to this democracy. The Authors believe that the entire process of updating the NRC must be halted until the Constitutional bench adjudicates over the legality of section 6A. More than ideal, this step is a check on the legality of actions carried out by Government and Judicial bodies.

The process of updating the NRC, with the burden of proof being placed on every individ ua l, is a completely unprecedented event in this history of this country. The consequences to follow have the ability to disrupt the lives of millions of people. The hysterical aspect to this is that the highest authorities of law and branches of Government are working hand in gloves to implement this entire procedure. The stakes of implementing such a large-scale project are vast because it will serve as a precedent for other States within the country, and also to some extent other countries within this world, which are suffering from an “illegal migrant” problem.

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FATAL FLAWS IN THE IMPLEMENTATION OF STANDARD OPERATING PROCDEURE (SOP) RELATED TO NRC, ASSAM -

Bhaskar Debroy

It is noteworthy, in the ‘Assam Accord : Memorandum of Settlement’ signed by All Assam Students Union (AASU) & All Assam Gana Sangram Parishad (AAGSP) on one hand and the Central Govt. & State Government of Assam on the other, on 15 th August, 1985 in presence of Late Prime Minister of India Sri Rajib Gandhi – there was no mention of updating the National Register of Citizens (NRC) which was originally compiled in Assam at the time of Census in 1951. Rather, sub clause (3) of Clause (5) of the Assam Accord envisaged that foreigners who came to Assam after 1/1/1966 and up to 24/03/1971 shall be detected in accordance with the provisions of Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1939. Also, those who came to Assam on or after 25/3/1971 shall be detected and expelled in accordance with law. As a corollary to that, Citizenship Act, 1955 was amended in the same year (1985) by inserting Clause 6A which mandated disenfranchisement of people who came to India during 1/1/1966 to 24/3/171 setting the later as the cutoff date for detection and deportation of foreigners. History has it that as the decades old sporadic untoward incidents

against

a particular

linguistic group assumed the dimension of a full grown Agitation in Assam in 1979, the Parliament passed The Illegal Migrants (Determination by Tribunals) Act in 1983 with the object of protecting the ‘minorities’ from harassment , applicable in Assam only, the valid ity of which was challenged by Sri SarbanandaSonowal of AAGSP in Supreme Court in April, 2000 and eventually that was struck down as ultra vires by the apex Court on 12/7/2005. Following the Assam Accord, as detection and deportation of foreigners through the existing process by Tribunals was being viewed as too low, contrary to the expectations of the leaders of movement, unrest again started mounting up over the period. The students’ union and others considered the process as inadequate and defeating the very purpose of the Assam Accord. So, with a view to ensure implementation of its principal aims & objects , after about 20 years again a tripartite meeting had to be held on 5/5/2005 amongst the parties to the Accord, where different suggestions and proposals were advanced.

 The Author is

working in voluntary service in individual capacity.

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As a sequel to that, in order to

accelerate process of detection and deportation of the foreigners in the State of Assam, an empowered Group of Ministers after rounds of discussion, made certain recommendations in 2008. And accordingly, The Citizenship (Registration of Citizens & issue of National Identity Cards) Rules, 2003 was amended in 2009 to put necessary legislative framework in place for updating the NRC by inserting Rule 4A and appending a Schedule, after Rule 18. That Schedule outlined

the Special Provisions

for the State of Assam as to the manner

of

preparation of NRC. Whereas Rule 4A provided that instead of door-to-door enumeratio n, application for inclusion in NRC from residents will be invited in Assam, the Schedule containing the procedure needed supplementary modalities for actual execution. Hence, the same was drawn up, discussed and finalised by the State of Assam in January, 2013, concurred by the Central Govt. subsequently and ultimately vetted by the Hon’ble Supreme Court as indicated in their Order dated 23/8/2013 under W.P.(C) No.274 of 2009 and thereby the Hon’ble Supreme Court assumed the responsibility of monitoring implementation of the spirit of Assam Accord and actual job started rolling down to ground level. As a part of that modalities/operating procedure, the herculean task of compiling and digitiz ing the original National Register of Citizens, 1951 together with the mammoth Electoral Rolls up to 24th March , 1971 pertaining to about 3.29 crores of people of Assam for different years was taken up, which came to be known as Legacy Data. It was done with a view to have a computerized tool to search & trace names of ancestors of residents , thus obviating the difficulties of checking through huge piles of printed matters. But inspite of best intentions and efforts, the process of building up that Legacy Data thus, had its own basic limitations. And the same is indicated in the official website of NRC,Assam as: ‘The Legacy Data base are old and even some are found in faded, torn condition, for which 100% digitization of all records may not have been possible.’ As a result, a sizeable number of poor , landless and barely literate people were exposed to failed effort to establish their claim for inclusion of their names in NRC, in so far as producing alternative documents for such poverty stricken residents remained a far cry. The bulwark provided for filtering bonafide citizens as per operating procedure is List-A : Legacy Documents, which included NRC,1951 and Electoral Roll up to 24/3/1971 under serial no. 1 &2 respectively and specifically excluded Ration Card (sl.15) as a principal document. Simultaneously, it was also made a sine qua non that all the other twelve listed documents therein

such as Citizenship Certificates, Permanent Residence Certificate, Passport, LIC,

Bank/Post Office record , Court process etc must have been issued on or before 24/3/1971. 52

This stringent condition led people run helter-skelter

to search out the names of their

progenitor in Legacy Data alone, as production of any other document pertaining to a period of 45 years earlier found to be well neigh impossible. Even for the Government servants, who were appointed after due Police verification etc and rendered service for 40 years or more, inclusion of name in NRC for them too, remained equally formidable in case their date of joining was after 24/3/1971. It deserves notice that even for the vast majority of middle class population, who were born say after 1958 in this Country itself and are at present may be in government service, even for them too, the imperfect Legacy Data turned to be like a straw , while sinking in the ocean of uncertainty. It is for the reason that neither the need for obtaining Birth Certificate was there prior to 1971, nor their Schools preserved 50 years old records in most cases, envisioning such an eventuality. For such people who attained majority after March, 1971 and started earning livelihood thereafter, production of any record as enumerated in List-A from serial no. 3 to 14 as mentioned in the foregoing paragraph turned out to be very limited, as need for obtaining or having such document hardly arose earlier. At the implementation level about 40,000 persons were engaged spreading across 2500 NRC Seva Kendras(NSK) apart from Circle level, District level & State level offices for undertaking the task of updating the NRC involving about 3.30 crore applicants. The Operating Procedure provided that the Verification Team(VT) at NSK level consisting of Local Registrar Of Citizenship Registration(LRCR) & Lot Mondal [a revenue official] shall be responsible for validating the documents which called for verification of 12 types of List-A and 7 types of List-B documents for acceptance. But as the Local Officers had limited or no legal exposure, even getting technically valid documents admitted posed problem. In fact, lack of awareness about adoption and applicability of Acts& Rules prevalent just prior to Independence as per Article 372(1) of the Constitution, led to rejection of genuine claims for inclusion. For example, a Notice issued under The Sylhet Tenancy Act, 1936 (which was subsequently amended also vide Assam Act No. XXVI of 1961) on 8/4/1964 submitted as a tenancy record in support of residency in the Karimganj District of Assam (which was a part of Sylhet prior to partitio n) was not accepted, presumably on the erroneous assumption

that the relevant Act has no

applicability in India. Similarly, a person who was an inmate in a Destitute Home managed by the Govt. prior to 1971 and obtained a Certificate to that effect in 1985 when the NRC process started, it was not 53

accepted on the technical ground that the date of issue is after 24/3/1971. A case in hand available is that of a female who , despite having such Certificate carried a stigma of ‘D’ voter too. As recorded in the Order dated 26/10/2016 of Hon’ble Supreme Court related to NRC, with a view to verify the authenticity of different documents submitted by residents as per List- A or List-B , the NRC authority sent a total of 3,05,995 documents to 28 different states of the Union of India to ascertain their reliability. And in response they received replies only against 8223 documents comprising only 2.69% of total such cases. It seems, in all probability, the State Governments were not in a position to trace/retrieve the basic records which might have been as old as 45-50 years or even more. So, if the Govt. machinery be not in a position to trace out relevant records, it is harsh upon the large number of poor and barely literate citizenry to ask in 2015 for submission of a document dated 24/3/1971 or earlier. And so long the response is not received, the status of all such persons hanged in balance. This becomes really a travesty of justice especially for those whose parents’ name went missing due to reasons indicated at the beginning, in so far as the ‘Ration Card” – which is the primary evidence of identity for rural mass has been kept out of the group of principal documents as embodied in List-A. Side by side, as recorded in the aforesaid Supreme Court Order, a total of 402 documents were referred to as many as 37 different foreign Countries, against which response was received only in respect of 19 cases from 3 Countries namely Kuwait (15/15), Singapore (1/15) & South Africa (3/3). And most interestingly, reference was made to Bangladesh even, whose nationa ls are in the eye of the storm in Assam. Thus the ripple effect of updating NRC is felt across the world, making it open for varied interpretations. Undoubtedly, a Citizenship Certificate issued at any time, by any duly empowered authority is the concluding evidence of one’s citizenship in India. But in respect of persons who belonged to other States and settled in Assam, rigid application of SOP rendered rejection of such certificates on the ground that they were issued after 24/3/1971, as if such document has no value despite it being valid in rest of India. Another fall out of SOP that confronted the married women of rural areas, who had no formal education, is submission of link document as contained in List-B. This arose mainly due to the prevalent practice of changing surname and use of husband’s name, in lieu of father’s name in Electoral Rolls. Since as per SOP , one is required to establish relationship with the Legacy Person (parents or grandparents whose name appeared in NRC-1951 or Electoral Roll up to 54

24/3/1971), it became really difficult for such women to prove as descendant of recorded parents, especially who were married in early ages. Though initially certificates issued by Gaon Panchayats were allowed to be submitted as Link document to establish relationship with the Legacy person, but as Guwahati High Court declared it invalid, lot of hardships caused to huge number of such married women. However, with the intervention of Supreme Court the matter was reverted to status quo ante. But during the interregnum, people suffered due to plethora of cross litigations involving SOP. The Notice published in News Papers etc at the stage of Claims & Objections in 2018 (i.e, after publication of Final Draft NRC) contained that Claim can be submitted only by those persons who applied at the beginning of the exercise which ended on 31 st August, 2015 and left out for any reason and applications from any new one will not be accepted. Thus the process closed the door for those genuine ones, who for some reason or other missed the opportunity in 1985. It is all the more distressing for the reason that the principle ‘whosoever born within the territory of India, shall automatically become citizen of India’ no longer holds good here. Since the State Coordinator was given unlimited power for execution of the process and was debarred from referring or consulting any other State or Central Govt authority, issuance of supplementary guidelines by him under SOP at times, also led to harassment of people. For example, subsequent to publication of Final Draft NRC, at the stage of filing claims in 2018, instruction was issued that Link document (List-B) pertaining to the period after 2015 will not be acceptable. Here again, intervention of Hon’ble Supreme Court called for and eventua lly such inequitable guideline was laid to rest. Thus in order to keep the process in track, during the period of about 5 ½ years, as a matter of monitoring, guidance & directions, Hon’ble Supreme Court had to pass at least 50 Orders, almost each time fixing up the next date and recording request to Hon’ble Chief Justice to allow sitting of the Bench on the appointed date. There were even Chamber Hearings for the purpose of dealing with delicate issues involved in implementation of the Operating Procedures. While stern directions were issued to Chief Secretaries of as many as 28 States including to Home , Finance & External Affairs Ministries of the Govt of India, even Election Commission was also not allowed to transfer/replace officials involved in NRC process, for election duty, which is otherwise treated as inviolable under Representation of Peoples Act, 1951.

55

Lack of clarity again posed a major obstacle at the time of filing Claims by those whose origina l applications were either rejected or kept in hold. For example, in good many cases, in the intimations as regards reason for non-inclusion were mentioned as ‘Technical error/QC’. When inquired if this be the fault on the part of applicant or otherwise, nobody in the NSK could clarify the actual position. Similarly, in respect of those, whose reasons were mentio ned as ‘List-A awaited’, indicating non-receipt of confirmation of authenticity of the document submitted from the issuing authority (for which presumably the name of the concerned person has been kept ‘on hold’) had to submit their Claim forms afresh, thus subjecting the poor people to incur further loss too, for no fault of them. At the time of finalizing the SOP for receiving Claim & Objections, the State Coordinator of NRC, Assam suggested to Hon’ble Supreme Court that out of 14 principal documents, four viz. (i) NRC,1951, (ii) Electoral Roll up to 24/3/1971, (iii) Citizenship Certificate & (iv) Refugee Registration Certificate be excluded for the purpose. And the reasoning furnished by him through examples in support of his suggestion, in respect of item (i) & (ii) is inter alia, as under, as quoted in Hon’ble Supreme Court Order dated 1/11/2018 in WP(C) 274 of 2009: (Example a.) “Legacy Data of one Shri Nilkanta Barman, s/o Gunaram. He has Legacy Data Codes (LDCs) of three years – 1951, 1966 and 1971. For example, an imposter used the LDC of 1966 with Legacy Data Code and got caught when the real descendants of Nilkanta Barman refused to identify him during Family Tree investigation hearings. This imposter can now use the 1951 LDC of Nilkanta Barman which has not been used by the real descendants. First problem in catching this misuse will arise as the computer will not be able to identify the other users of this Legacy Data as the Legacy Data Code will change from 370-4015-3609 (1966 LDC) to 370-0007-4848(1951 LDC). However, this problem can be overcome as thos e descendants can still be called by the NRC authorities as they were called for the said imposter’s family tree investigation earlier. However, NOW IT WILL BE POSSIBLE FOR THE IMPOSTER TO BRIBE THE REAL DESCEDANTS WHO CAN NOW SAY THAT NILKANTA BARMAN OF 1951 NRC IS A DIFFERENT PERSON. The NRC authorities will never be able to suspect because names of all the other family members and even neighbours displayed in 1951 NRC are different. This way without change in name of the Legacy Person, Legacy Data can be misused.” (Emphasis added) In the similar other examples as well, the Learned State Coordinator based his arguments for depriving the 40.07 lakh population from availing the use of such basic records, on possible 56

‘bribing’ alone, which is not expected of a commander of the entire project dealing with a very sensitive humanitarian issue. The ridiculous notion seems to be like that of a person who for fear of theft, never purchased any plate or dish and used to eat his meal on bare floor.

And

therefore perhaps, Hon’ble Supreme Court initially though concurred with his suggestion, after a period discarded the same. In course of implementation of SOP, the most fatal blow inflicted upon the remaining 40.07 lac residents is perhaps disallowing any change in Legacy Person. Originally, it was stipulated that linkage or legacy could be established through either parents. Thus, in all fairness, it should have remained open for the person to establish his legacy through his mother, in case his earlier linkage with father got rejected for any reason whatsoever. But surprisingly, it is found that, this scope of proving one’s genuine claim was taken away by inserting a new condition in SOP that the applicant will not be allowed to change legacy person, even though fresh opportunity given to them to submit Claim purportedly afresh, thus exposing that group of 40.07 lac inhabitants to peril for all practical purposes of living in Assam. Whereas even the cruelest penal procedure ensures that let hundred criminals go scot free, but one righteous person should not be victimized, here in this exercise the prudence practiced is just the reverse. And as the procedure adopted for implementation of SOP seems to have morphed into a process of elimination rather than of inclusion , the specter of arrest, detention camp, deportation or push back loom large over a sizeable number of hapless residents which needs to be addressed and redressed as a humanitarian issue by all concerned.

57

SOURCE OF REFERENCE: 1)

White Paper on foreigner’s issue published by the Home & Political Department,

Government of Assam on 20/10/2012 2)

Supreme Court Orders/Judgments related to WP(C) No. 274 of 2009 & WP(C) No. 562

of 2012 3)

The Great NRC Mess : What happened in Assam is not ‘India for Indians’ by Samrat

4)

Documents gathered during interaction with affected people

58

A CRITICAL ASSESSMENT OF THE HIGHLY DEBATED NATIONAL REGISTER OF CITIZENS IN ASSAM -

Bidisha Saikia

INTRODUCTION A massive debate over citizenship and illegal migrants, including in political terms, has broken out following the publishing of the National Registrar of Citizens draft where it has found out 2.89 crore people eligible while 40.7 lakh names have been left out. History has witnessed several events like the Assam Agitation, Nellie Massacre etc showcasing the struggle of the people of Assam against illegal immigration from the neighboring country of Banglades h. Since under the colonial rule’s ‘Grow more food campaign’ to the changing of demography due to the influx of immigrants, the same tension arises out from a scenario from the past. This draft has been a ‘blessing in disguise’ for many people along-with the marginalized sections who were often suspected and harassed on the pretext of being foreigners. Also it has thrown out a message to the rest of the world that there exists a legal process against illega l encroachment in the state of Assam. Though a lot of questions arise on how effective this measure would be. There are currently state wide protests going on against the Citizens hip Amendment Bill which are supported by many influential leaders. However, it is to be realized that this fight is not against the so called ‘Bangladeshis’, but this is against the ‘Illegal’ people who have migrated from Bangladesh and settled in Assam. Very often people from other parts of the country remain a bit perplexed at the emotiona l response of the Assamese people to the question of identity and demographic change. In-order to understand and appreciate as to why many in Assam see the National Registrar of Citizens as the lifeline of the Assamese people, there is need to revisit some of the major events from 1920 to 1950 that centered around immigration, land and identity- moments which helped shape Assam’s post-Independence history. During the 1951 Census of India, national citize n registrar was created that contained the details of every person by village. These registers covered every person enumerated during the Census of 1951 and were kept in the offices of the Deputy Commissioners and sub-divisional officers as per the Centre’s instructions issued in 1951.1

 The Author is

a Research Scholar at Tata Institute of Social Sciences, Guwahati January, 2019)

1 :http://thewire.in/history/history-nrc-assam(accessed on 24th

59

HISTORICAL DEVELOPMENT OF NRC Since, British Rule, indigenous people were given a number of safeguards so that they do not lose control over their land. The British created a “Line System”2 which restricted the movement of immigrants into indigenous areas, also protective legislations like the Bengal Frontier Regulation Act among others were passed3 . Similarly, post-independence, the Constitution also came up with the Sixth Schedule giving enough protection to the hill-tr ibes of Assam. However, these measures failed to ensure safeguards to the indigenous people living in the plains of Brahmaputra and Barak Valley. While, in Barak Valley, the native Meitei, Bishnupriya, Pangal, Dimasa and Kuki-Chins were absolutely outnumbered, in Brahmaputra Valley, the gradual process of outnumbering began. In a matter of decades, immigrants from erstwhile East Bengal (later East Pakistan and now Bangladesh) became majority in several districts of Lower and Central Assam4 . Since Independence till 1971, when Bangladesh was created, Assam witnessed large-scale migration from East Pakistan that became Bangladesh after the war. Soon after the war on March 19, 1972, a treaty for friendship, co-operation and peace was signed between India and Bangladesh. The migration of people from Bangladesh into Assam continued. This brought the regular influx of immigrants to the notice of the then Prime Minister post which the All Assam Students Union submitted a memorandum to Indira Gandhi in 1980 seeking the “urgent attention” to the matter. Subsequently, Parliament enacted the Illegal Migrants (Determina tio n by Tribunal) Act, 1983. This Act, made applicable only to the state of Assam, was expected to identify and deport illegal migrants in the state. Outcomes were that people were not satisfied with the government’s measure and a massive state level student agitation started, spearheaded by the All Assam Gana Sangram Parishad (AAGSP). This movement resulted in the ‘Assam Accord’ signed on August 15, 1985 between All Assam Students Union (AASU), AAGSP and the central and the state governments. It was a result of a six-year long agitation (1979-1985) by the people of Assam led by Student leaders against illegal immigration. Cause of the agitation was that in 1978, the legislator of Mangoldoi constituency died and in 1979 a byelection was held. In the by-election there was an abrupt increase of 75,000 new voters in one small constituency of less than 150,000 voters. Although, the protests were non-violent, police firing killed over 855 people, of which many were students. Finally, the Government came into 2 Bodhi

Sattwa Kar, The Immigration Issue, Line System & Legislative Politics in Colonial Assam (1927-1939): AHistorical Study, IOSR Journal of Humanities and Social Science, Vol. 11, Issue 4, 2013. 3 Ibid

60

terms with the agitators and Assam Accord was adopted; in which it was agreed that illega l immigrants would be detected, deleted from electoral rolls and deported. It is from this Assam Accord under which the present updation of NRC finds its basis. DISCREPANCIES IN THE NRC PROCESS The NRC updation process has got a mixed response from people across all sections of the society. While, one group is concerned about the future of those whose names have not appeared in the list; another group rejoiced the detection of foreigners, after years of struggle. However, the main issue which should concern the people are the discrepancies and flaws in the NRC process. At this point, one must realise that an instrument such as NRC, which was meant to identify foreigners and deport them, if flawed, may turn it in favour of them. The final draft NRC has a large number of discrepancies and infirmities. The same was brought before the notice of the Registrar General of India and the State Coordinator for NRC (Assam) through a representation. In a summarised manner, the discrepancies can be put asFirst, the number of people excluded from the list is far less than those that were reported by the Government at various times. On 10th April, 1992, the then Chief Minister of Assam Shri Hiteswar Saikia had given a statement in the Assembly that there were 33 lakh infiltrators from Bangladesh in Assam, which was retracted after a few days. On 14th July, 2004, Sriprakash Jaiswal, Union Minister of State for Home made a statement in Parliament that as on 31st December 2001 there are 50 lakh Bangladeshi infiltrators in Assam. In 2017, the numbers given by Shri Kiren Rijiju, Union Minister of State for Home is a staggering figure of 80 lakh. But the NRC draft has only excluded 40 lakh people, which is half the estimate given by the Government. This shortfall is extremely significant and it is essential that reasons for such shortfall needs investigation. It has been said in some quarters that fewer persons applied and hence the shortfall. This however is erroneous as according to 2011 census, the total population of Assam was 3.11 crores. While, NRC official figures have shown that 3.29 crores applicants applied in 2015; which is approximately 6% more than the census figures. Second, most of the border and migrant-dominated districts, which had witnessed a decadal growth between 21% and 24% for the decades between 1991-2001 to 2001-2011 respectively, against a state average of increase by 18.19% and 16.93%, have given figures of exclusio n which are far below the state average with Dhubri at 8.25%, Karimganj at 8.17% and South

61

Salmara at 6.79%.The exclusions in NRC are totally contrary to this unnatural growth of population in these districts. The Table below clearly brings out the discrepancy: -

Sr. No

District

Percentage of applicant excluded from NRC

Decadal population growth 1991-2001

20012011

Assam

12.15%

18.19%

16.93%

1

Dhubri

8.25%

22.97%

24.40%

2

Goalpara

11.82%

23.03%

22.74%

3

Barpeta

13.69%

19.62%

21.40%

4

Morigaon

14.67%

21.35%

23.39%

5

Nagoan

15.08%

22.6%

22.09%

6

Karimganj

8.17%

21.87%

20.74%

Another surprising district is Nalbari where percentage of exclusion is 4.97%, equivalent to that of Jorhat at 4.58%. But the decadal growth of population of Nalbari, particularly in the period 1971-1991 was 75.78% and Jorhat was 33.10% as against a state average of 53.26% for the same period, though figures for 1991 till 2011 periods are slightly below the state average. However, the percentage of exclusion in respect of Nalbari is disproportionately low considering that it has an increase of more than 40% above the state average during 1971-1991. It is also important to note here that most of the reports and information regarding discrepancies and infirmities are particularly from border districts and migrant dominated areas in other districts. The primary flaw, which led to such low exclusion from these areas, appears to have been on the ground verification process, both under Rule 2(3) and 3(4) of the Schedule to the 2003 Rules under the Citizenship Act, 1955, persons included in the list even in the absence of the exhaustive list of List ‘A’ & List ‘B’ documents and merely on the oral statements of three neighbours, even during the family mismatch hearings. The biggest and most glaring instance 62

of field verification is that of ManowaraBewa case 5 of declared foreigner and in detention camp travelled all the way to the Hon’ble Supreme Court on the issue of admissibility of Gaon Panchayat Certificate and decided so by the Hon’ble Court on 05th December 2017. Her case as declared foreigner should not have proceeded at all. However, not only was an applicatio n entertained, the combined verification report marks her positive in satisfying all criteria in terms of List-‘A’ & List – ‘B’ documents and interestingly there is a finding of a photo ID match, part of the ground verification report which matches the photograph with that of the applicant at site and that too when ManowaraBewa is in detention camp for the last 4 years! Third, large number of reports of inclusion of declared foreigners have also come up from different parts of Assam. The Deputy Commissioner of Morigaon has publicly stated that 39 families (about 200 persons) to their knowledge, so far, have been included in the draft. In every district there are reports of such inclusion and that too in significant numbers, Dhubri reportedly thousands of Declared Foreigners and including their families have been included. Apart from the declared foreigners, even people whose cases are pending before the Foreigner’s Tribunal and the D-Voters have also found their names in the draft.6 An instance of this is the case of NaseruddinSeikh, a Declared Foreigner (DF) included in the draft list with two other family members. The surprising fact is that Naseruddin’s application passed all checks of List-A, List -B documents, Family Tree matching, Field Verification and multip le other checks even though he did not and could not have had the documents required in the basic list.7 Fourth, one very important fact and which was overlooked and not factored in during the whole process is that the exercise of segregating citizens and non-citizens is being undertaken after 47 years of the cut-off date of 25th March 1971. During this period a large number of foreigne rs have found their way into responsible positions in government and politics. Even those entering Assam prior to the cut-off date, those technically citizens nevertheless their sympathy and empathy would be with their brethren from Bangladesh. It is also a fact that a number of persons employed in the NRC process have been found to be declared foreigner, the case of Khairul Islam, School Teacher from Morigaon, declared foreigner by the Foreigners Tribunal by judgment dated 20th February, 2016 and upheld by the High Court on 15th May, 2018, but

5 ManowaraBewa 6 Press

v. Union of India, WP(C) No. 2634 of 2016 Release by PrabajanVirodhi Mancha

7 Ibid

63

who continued to be part of the NRC exercise.8 Similarly, a number of The Field Level Officers (FLOs) under NRC do not find their names in the NRC. In Garukhuti NSK of Sipajhar in Darrang District, out of 10 FLOs 7 are excluded. It surely raises doubts about their citizens hip. It is sufficed to say that the inclusion of such prohibited category, particularly after such an elaborate documentation and verification process requires serious investigation as to the nature and manner of gaps and discrepancies. Besides these discrepancies, there has been a number of fundamental administrative flaws in the process as well. The field reports are not digitized. As a result, beyond the Circleat the District and State level there is/was no material to undertake quality check. The quality of personnel employed for field verification left a lot to be desired.Field Level Officers (FLO's) employed for Co-ordination and assistance between applicant and officials were the Booth Level Officer's (BLO's) employed during elections, drawn from AnganwaadiWorkers, local persons. Managing an election, to tally voter's ID and identity, write voting slips etc. is one thing and to deal with citizenship issues in the format prescribed is another thing. Quality of other personnel employed from amongst college and school teachers and employees of departments

was also poor, as they were pushed into the job with very little knowledge or

training and which has showed up in the poor quality of type two verifications for family tree. Also, poor quality of supervision of officers along with possible fraud by data entry operators has resulted in a large number of rejections at LRCR level finding their way into the NRC Draft. There are such instances from across Assam, like the case of family who filed their application and left the State, were included in the draft without any verification. It is obvious from the above that there are serious discrepancies and flaws at various stages, particularly at the field verification stage which has resulted in a large number of foreigne rs being included in the draft NRC List. Such inclusions have been on account of serious lapses at the institutional level, particularly in the border and migrant-dominated districts of Dhubri, Goalpara, Barpeta, Karimganj, Nagaon, Morigoan and Darrang. The instances provided above are only a few cases acquired through personal efforts, but it is doubtless that a systematic inquiry at the official level will unearth many more of such facts. It is not possible to resolve the flaws and lapses through the public claims and objection process as provided under the NRC, largely because migrant/ foreigners live in concentrated zones not

8 https://timesofindia.indiatimes.com/city/guwahati/nrc-staffs-foreigner-status-sparks-

controversy/articleshow/65372137.cms (accessed on 23rd January, 2019)

64

with the general population and it is impossible for any individual to venture into their areas, even the police fear going into such areas. It is obvious that a re-verification in border districts and migrant dominated areas is essential but as a first step there should be an investigation and documentation of the procedural and substantive aspects of the exercise, which will then mak e the re-verification exercise fool proof. POSITIVE SIDE OF THE NRC PROCESS Albeit, all the flaws, discrepancies and several rumours spread throughout the national media; it is a positive sign that the state has been totally free of any violent incidents since the publication of the NRC. One major reason for this state of calm is that an overwhelming large section of the pre-1971 people who have been long considered as illegal migrants or ‘Bangladeshis’ have made it to the NRC. This has given them a sense of security which they had lacked all these years. The involvement of the Supreme Court seems to have lent a sort of sanctity to the entire process and initial apprehensions among linguistic and religious minorities after the first draft was published in January 2017; seem to have been largely dispelled after the figures of the final draft were made public. CONCLUSION It is true that the large numbers of the indigenous people did not even apply for inclusion in the NRC, many thinking that this was an exercise to detect illegal migrants or foreign nationa ls. Once the Standard Operating Procedures submitted to the Supreme Court by the Centre are accepted and the court takes into consideration the views of all the stakeholders that it has named- which include minority linguistic and religious organisations, apart from bodies representing the majority Assamese ethnic organisations- the whole picture will become somewhat clear. Till then, apprehensions and fears are certain to be there. Nonetheless, till all this final draft need not be seen as stateless or shorn of citizenship. With the speculation regarding the religious and linguistic break-up of those that have been left out continues, the Assamese ethnic organisations seem to have realised that although NRC ma y have highlighted the issue of illegal migration for the rest of the country, yet it is likely to be of little help for the indigenes to secure their land rights which have been severely compromised. Hence, the focus is gradually shifting from the NRC to the issue of constitutio na l safeguards for the Assamese people as stated in Clause 6 of the Assam Accord. Demands are now surfacing for the stringent measures, including eviction, to protect indigenous land and the tribal belts and blocks, in line with the recommendations of the Hari Shankar Brahma 65

Committee Report on the status of land held by the indigenous people. There is reference to measures that have been adopted towards safeguarding land and resources of the ethnic people in some of the north-eastern states bordering Assam. But most of these states are governed by ‘Inner Line Permits’ which severely restricts people from outside these states to settle permanently in these regions. On the contrary, Assam’s position is quite unenviable because all these years the question of constitutional safeguards for the Assamese people has been stuck over the failure to arrive at an accepted definition of who actually is an indigenous Assamese.

66

CONSTITUTIONAL VALIDITY OF CITIZENSHIP (AMENDMENT) BILL 2016 WITH SPECIAL REFERENCE TO ASSAM ACCORD: A REVIEW OF THE PROCESS OF UPDATING NATIONAL REGISTER OF CITIZENS -

Jayanta Boruah

INTRODUCTION Assam has been facing a serious predicament due to the inflow of illegal immigrants. This issue has brought about several social and political instabilities in the State of Assam from time to time. The Indian citizens residing in India as well as the local Assamese people had suffered devastating consequences and witnessed serious revolutions due to the said issue after Indian independence. The local Assamese community has been facing a serious threat to their identity since before Independence of India and is still facing the same threat even after India got freedom in 1947. It seems that even after India attained freedom, the people of Assam are not free from the threat of losing their identity, culture and hold over their own resources in their own home land. The greatest of the revolution that was seen due to this frustration amongst the Assamese people, after Indian Independence, was during 1979-85. This Revolution was termed as Assam Agitation which witnessed one of the massive massacres in modern Indian history, where a mob of local Assamese people killed around 2,191 suspected illegal immigrants which mostly included children and women on 18 February, 1983, this incident was termed as Nellie massacre. While on the other hand, 855 local people became martyrs sacrificing their lives for protecting the identity of Assamese community.1 This Agitation was finally concluded by signing of the Assam Accord between the members of All Assam Students Union (AASU) and Asom Gana Parishad (AGP) on one side and the Central Government of India on the other side, which fixed a separate date for determination of Illegal Immigrants in the State of Assam as compared to the other States of India. Accordingly Section 6A of the Citizenship Act 1955 was added. The situation at present again started causing serious tensions amongst the Assamese people due to the new Amendment to the Citizenship Act proposed by the current NDA Governme nt, at the time when the process of updating the National Register of Citizens is going on in Assam. This Citizenship (Amendment) Bill of 2016 is likely to alter the provisions of Assam Accord that came into existence after such a devastating Assam Agitation and for this reason Assam is  The Author is

a Research Scholar at National Law University and Judicial Academy, Assam ‘Nellie Massacre- How Xenopjolia, Politics General Assam’s Genocide’ The Quint.com (30 March 2018) www.thequint.com/explains/nellie-massacre-expl ained accessed 24 January 2019. 1 ShorboriPurkayastha,

67

witnessing a stage of instability in the law and order situation. In order to understand the entire picture of Citizenship Rights and the related issue of illegal immigrants that is very controversial and complex due to Assam’s unique nature of social and political existence, we will have to analyze the entire legal and political background in this matter, which may indeed become a very wide topic for this single paper but still a brief review is needed to bring about some insights into the issue that is not only going to influence Assam but may bring about serious consequences to the entire Indian territory. CAUSES BEHIND INCREASE OF ILLEGAL IMMIGRANTS IN ASSAM Assam shares a majority of her international border with Bangladesh, and for this reason the problem of illegal immigrants in Assam is mostly associated with Bangladesh nationals. The length of India-Bangladesh border is about 4,096 km, most of which is not properly fenced yet. However, we know that there must be generally two factors, via- Pull factors and Push factors which lead to the process of migration from one State to an another State. Here, good agricultural condition and job opportunities in Assam work as the pull factor while poor livelihood, constant flood, climate change orienteddisasters, etc. in Bangladesh work as push factors. Further, the problem of illegal immigrants from Bangladesh in Assam is also due to the vote bank policy adopted by the political groups within the State and also within India. Furthermore, the Assamese people who has a strong lineage with Bengali speaking Muslim population since before the partition of the State are alleged of exercising strong lobby for bringing Bangladeshi people illegally within the State. 2 STATISTICAL INTERPRETATION IMMIGRANTS IN ASSAM

OF

THE

PROBLEMS

OF

ILLEGAL

This section will include few statistical analyses about the facts relating to the issue of Illega l immigrants that will help us in understanding the magnitude of the problem.

2J

Das and D Talukdar, ‘Socio-Economic and Political Consequences of Illegal Migrant into Assam from Bangladesh’ Journal of Tourism & Hospitality (2016) www.omicsonline.org/pdfdownl oad.php? downl oad=open-access/socioeconomic-and-politicalconsequences-of-illegal-migration-into-assam-from-bangladesh-2167-0269-1000202.pdf&ai d=69610 accessed 21 January 2019.

68

40 35 Assam (in%)

30 India (in%) 25 20

15 10 5

0 1901-11 1911-21 1921-31 1931-41 1941-51 1951-61 1961-71 1971-81 1981-91 1991-01 2001-11

Period

Assam (in %)

India (in %)

1901-11

11

5.8

1911-21

20.5

0.3

1921-31

19.9

11

1931-41

20.4

14.2

1941-51

19.9

13.3

1951-61

35

21.6

1961-71

35

24.8

1971-81

23.3

24.7

1981-91

23.6

23.5

1991-01

18.8

21.3

2001-11

16.93

17.6

Table 1: Decadal Population Growth Rate in Assam Compared to In India. 3

3

CMF, basic statistics relating to Indian Economy.

69

25

20

15 Difference in Population Growth Rate between Assam and India 10

Estimated Migrants

5

0

-5

Period

Difference in Population between Assam and India

Growth

Rate

Estimated Migrants

1901-11

11.26

0.37

1911-21

20.78

0.8

1921-31

8.91

0.41

1931-41

6.17

0.34

1941-51

6.62

0.44

1951-61

13.34

1.07

1961-71

10.15

1.1

1971-91

-1.13

-0.17

1991-01

-2.49

-0.56

Table 2: Difference of Population Growth in India and Assam along with Estimated Migrants 4

4 Hiranya

K Nath and Suresh K Nath, ‘Illegal Migrants in Assam: Magnitude, Causes and Economic Challenges’ pdf. http://ssm.com/abstract=1750383 accessed 24 January 2019.

70

1200000

1000000

800000

Estimated Illegal Foreign Immigrants

600000

Estimated Legal Foreign Immigrants Interstate Immigrants

400000

200000

0

1951-61

1961-71

1971-91

Period

Interstate Immigrants

Estimated Legal Estimated Illegal Foreign Immigrants Immigrants

1951-61

260636

314183

493027

1961-71

340476

338015

165446

1971-91

290635

40803

646641

Foreign

Table 3: Number of Interstate and Both Legal and Illegal Foreign Immigrants in India5 2001 1991 1971 1961

Assam

1951

India

1931 1911 0

5

5

10

15

20

Ibid.

71

25

30

35

Period

India

Assam

1911

22.39

16.23

1931

23.49

22.78

1951

9.91

24.68

1961

10.71

25.3

1971

11.21

24.56

1991

12.12

28.43

2001

13.42

30.91

Table 4: Muslim Population Growth in Percentage in India and Assam6 OBSERVATION: From Table 1 the increase in population growth in Assam indicates that there has been migration into the state and this gets absolutely clear from Table 2 where the difference in the growth rate of population between India and Assam and the estimated migration is shown which further clarifies the fact that the problem of migration has been significant in Assam. However, Table 3 points the rate of inflow of illegal foreign migrants into the state which is again significantly high. Table 4 indicates the growth rate of Muslim population in both India and Assam where the rate is immensely high in Assam compared to India. All these facts are enough to prove that Assam is facing a serious threat of illegal immigration of foreigners into the state. CONSEQUENCES This Illegal Immigration into Assam has led to serious consequences across the state. The local people are facing identity crisis in the state as regards their culture and traditions. Further the political control has weakened. The law and order situation has been challenged from time to time, the greatest instance being the Bodo-Muslim conflict in 2012 which led to the killing of around 77 people and displacement of thousands of local people residing in the disputed area. 7 There has been a significant decline in the land area under forests from 39% in 1951-52 to 30% now. The resources of the state are getting scarce. The number of illegal voters is increasing 6

Census Report of India of Various Years. Staff, ‘Assam Violence Key Facts about the Bodo -Muslim Conflict’ Firstpost (04 May 2014) www.firstpost.com/india/ assam-violence -5-key-facts-about-the-bodo-muslim-conflict-1507865.html accessed 24 January 2019. 7 FP

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and similarly there are many other such consequences that are hampering the growth of the State’s development. But most importantly, this issue is challenging the integrity of the nation and is also increasing the crime rate in the country, encouraging several terrorist activities across the border.8 THE LEGAL AND POLITICAL FRAMEWORK REGULATING THE ISSUE OF CITIZENSHIP IN ASSAM The issue of citizenship has been a controversial one due to the huge inflow of illega l immigrants into the state. Moreover, the political setup of the State seems to be influenced very deeply by this issue. In order to study the impact of this issue in Assam in particular and in India in general, we will have to look into some of the vital legal and political aspects of this matter. This section will thereby focus on analyzing the political situation under the influe nce of which the laws governing the citizenship rights in Assam were framed, the constitutio na l validity of those laws, their drawbacks and such other information that can be possibly derived. INDIAN CITIZENSHIP ACT 1955, WHO IS AN ILLEGAL MIGRANT? Under the Citizenship Act of India an Illegal Migrant is a person not being an Indian staying in India without a valid passport or any other such documents, or is a person with a passport but staying here beyond the time limit permitted. An illegal migrant as under the above provisions will be deprived of Indian Citizenship, if they were born on or after December 3, 2004. However, the Act provided Indian Citizenship to persons irrespective of their parent’s nationality, if born on or after January 26, 1950 but before July 1, 1987. And if anyone takes birth after July 1, 1987 but before December 3, 2004 will be given Citizenship by birth only if either of the parents were citizen of India. But if born after December 3, 2004 then Citizenship will be granted only if both the parents are Indian citize ns, or if either of them is and the other is not an illegal migrant. Further, Citizenship by way of naturalization will be granted only if a foreigner resides within India for eleven years, if such foreigner is not an illegal migrant. Furthermore, Citizenship by registration will be granted to a foreigner who is not an illegal migrant on making of an application to the Central Governme nt of India, and the Central Government will decide upon such applications. In addition to above Citizenship by descent will be granted to a person born outside the territory of India on or after December 3, 2004, to an Indian citizen, if such person does not possess a valid passport of any

8

Supra n 2.

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other country or is registered at an Indian Consulate within 1 year from the time of birth of such person or on the expiry of the said time, on the permission of the Central Government. 9 ILLEGAL MIGRANTS (DETERMINATION BY TRIBUNAL) ACT (IMDT) ACT 1983 This Act was enacted by the Indian Government only for the State of Assam after witness ing the harassment suffered by the Bengali speaking Muslim minority groups due to Assam Agitation. This Act provided for detection of Illegal Bangladeshi Migrants in Assam and deporting them, while for the rest of India the same was to be done as per the provisions under the Foreigners Act 1946. This Act defended the Bangladeshi Immigrants by making the burden of proving them as illegal upon the State though a Tribunal set under the Act while the same burden was vested upon the alleged illegal immigrants to prove themselves as citizens of India. This Act was thereby challenged before the Supreme Court in the case of Sarbananda Sanowal v Union of India and accordingly the Court declared it as unconstitutional and struck it dow n in 2005. ASSAM ACCORD The Assam Agitation Movement after witnessing a serious devastating conflict for almost 6 years came to a conclusion on signing of the Assam Accord on 15 th August, 1985. The terms and conditions of the treaty was set by the All Assam Students Union after several negotiatio ns with the Central Government under the leadership of the then Prime Minister of India, Rajiv Gandhi. Later, a regional political party was formed by the local people who went on forming the Government of Assam under the banner of AxomGana Parishad. This Accord provided for recognizing all foreigners who entered Assam between 1951-61 as Indian citizens with full voting rights, while those who entered after 1951 but before 1971 will be granted citizens hip but with no voting rights which will be allowed only after 10 years and at last this Accord set March 24 of 1971 as the mark for determining illegal migrants and expelling them from the state.10 SECTION 6A OF CITIZENSHIP ACT 1955 The Citizenship Act of 1955 was amended accordingly after the signing of the Assam Accord to give effect to the provisions of the said Accord. As per this new Section all person of Indian origin who came into Assam before 1 st January 1986, including those whose names were there 9

Indian Citizenship Act, 1955. is Assam Accord’ The Hans India (17 August 2017) www.thehansindi a.com/ posts/index/ Hans/2015 08-17/what-is-assam-accord/170588/amp accessed 24 January 2019. 10 ‘What

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in the Electoral Rolls for the 1967 election to the House of the People and if residing in Assam since the date of their entering the State will be deemed as Indian citizens from 1 st January 1966. And also those persons who entered Assam after 1 st January 1966 but before 25th March 1971 and if their names were included in any of the Electoral Rolls to any of the Assembly/Parliamentary elections will have to register themselves with the Register ing Authority. While all those entering Assam afterwards, will be detected and deported accordingly.11 CONSTITUTIONAL VALIDITY OF ASSAM ACCORD AND SECTION 6A OF CITIZENSHIP ACT 1955 The Constitutional validity of both the Assam Accord and Section 6A has been challe nged before the Supreme Court of India though a petition filed by Assam Sanmilita Mahasangha on the ground of discrimination since it fixes separate dates for determination of illegal immigra nts for Assam and India and so it is against the general rule of uniformity. Further, they challenge the Assam Accord on the ground that AASU being a non registered students organization do not possess the power for giving effect to a Memorandum of Union with the Central Government. Upamanyu Hazarika, a Supreme Court Advocate argued that a separate date for Assam will prove handy for the fate of the local people. He stated that in Byrnyhat, a town in Meghalaya on the border of Assam, where a Bangladeshi immigrant will have to prove his/her citizenship prior to 1948 changes to 1971 on crossing the border which is only around 1 km away, this provision will work as magnet for Bangladeshi migrants into Assam.12 NATIONAL REGISTER OF CITIZENS, NRC The NRC for updating the names of the genuine Indian citizens in Assam has again been updated after 1951 NRC under the monitoring of the Supreme Court of India of which the first Draft was released on 31st December 2017 and the final Draft was released on 30 th July 2018. Eligibility for been included in NRC The following persons in Assam were held to be eligible for appearing in the NRCa. Persons having their name in the 1951 NRC;

‘Status of Bangladeshi Immigrants’ Press Information Bureau Government of India Ministry of Home Affairs http://plb.nic.in/newsite/PrintRelease.as p?elid=112915 accessed 24 January 2019. 12 ArunabhSaikia, ‘Who exactly is Assamese? A petition before the Supreme Court may change definition yet again’ scroll.in (26 April 2017) https://scroll.in/article/835523who-is-assamese-a-new-petition-in-supre me court-may-change-the-definati on-yet-again accessed 24 January 2019. 11

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b. Persons whose names are there in any of the Electoral Rolls for any elections held before midnight 24th March 1971; c. The Descendants of the above; d. Persons entering Assam after 1st January 1066 but before 25th March 1971, who are registered under the competent authority for the said purpose and has not been declared as illegal immigrants by any competent authority; e. Children of citizens of Assam if their citizenship is beyond reasonable doubt; f.

D-voters can include their names, however their names will appear in the new NRC only after the Foreigners Tribunal declares them as non foreigners;

g. Persons who can produce any of the documents mentioned in the list of documents to prove their residence in Assam prior to 24th March 1971; h. All persons who were residing in any art of India outside Assam before 24th March 1971; i.

All tribal members who are declared as Original Inhabitants of Assam under Clause 3(3) of the Citizenship (Register of Citizens and issue of National Identity Cards) Rules 2003 and

j.

All those members who can prove their citizenship beyond reasonable doubt before the Registering Authority.

PROCESS OF UPDATING NRC The process of updating NRC included the following stepsa. Publication of Legacy Data b. Distribution of Application form and their Receipt c. Process of Verification d. Preparing of the Part Draft of the NRC and its publication e. Verification and hearing of claims and objections filed against the Part Draft and f.

Preparing and publishing the Final Draft of NRC.

AFTERMATH The final Draft of NRC resulted in declaring 2.89 crore people as valid citizens out of 3.29 crore applicants while more than 40 lakh people were found to be invalid. However, it was made clear that this is just a Draft while the aggrieved people can file their claims and objections before the Tribunal from 30 August to 28 September 2018 and the reason for non 76

inclusion of the claimants was decided to be published from 7 August 2018. Home Minister Rajnath Singh stated the final NRC will be published once all the claims and objections are heard. CITIZENSHIP (AMENDMENT) BILL 2016 The present BJP government proposed a Bill in the Parliament for granting Indian citizens hip to Hindu minority groups from Bangladesh, Pakistan and Afghanistan on humanitarian basis. Further, it alters the provision of the original Citizenship Act of 1955 whereby a foreigner will be granted citizenship only after 11 years of stay which has been reduced to only six years of residence. However, the decision for granting citizenship will be taken by the Government of India and if any such person violates any law of the land then his/her citizenship may get cancelled.13 Arguments for and against the Bill; a Review of the Constitutional Validity of the Bill The Bill has been widely supported by the BJP ruling party both at the Center and at the State of Assam. The Cabinet Minister for Assam, Himanta Biswasarma clearly stated that it has always been the intention of the BJP party to give shelter to the minority groups of Hindus, Sikhs and other such Non-Muslim groups in India. He was of the view that the Muslim people that are facing humiliation in Pakistan, Bangladesh and Afghanistan can still seek shelters in other Islamic countries but for the Hindus, India is the only largest Hindu country. While on the other hand the Assamese people are strictly against this Bill since according to them Assam will suffer the most because of this Bill. As per AASU, Assam is already flooded with lots of Bengali Hindu Bangladeshis and this Bill is likely to increase the number at a large scale which will simultaneously create a great threat to the Assamese culture and language and will thereby alter the demography of entire Assam once for all. Further, this Bill seems to violate Article 14 of the Constitution of India since it discriminates between Non-Muslims and Muslims for granting citizenship and thereby it is held to be against the principle of equality. Furthermore, this Bill challenges the Basic Structure of the Indian Constitution, according to which India is a secular country, but this Bill appears to have recognized the concept of communa lhumanitarianism. Even though India is a signatory to the United Nation Convention on Refugee according to which granting citizenship to Refugees on humanitarian basis is an internatio na l

13 ‘What

is the Citizenship (Amendment) Bill? India Today (22 October 2018) www.indiatoday.i n/educati o ntoday/gk-current-affairs/story/what-is-citizenshi p-amendment-bill-2016-137201-2018-10-22 accessed 24 January 2019.

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customary law. But refugees are those people who lose their citizenship involuntarily or by force while on the other hand illegal migrants are those who migrates to an another country for economic or other such advantages. The Bill of 2016 is providing citizenship to illegal migrants while there shall be separate laws and policies to deal with the issue of refugee rather granting illegal migrant citizenship. Thus, this Bill cannot be defended even on the ground of granting recognition to the UN Convention on Refugees. 14 CONCLUSION There can be no doubt about the fact that the citizenship matter in Assam has been under serious controversy. However, the new NRC has revealed doubts on 40 lakh people whose fate is now to be decided by political turmoil. The Jurisprudence that governs the International law on citizenship provides that- no person shall remain stateless; as such the fate of these 40 lakh people assumes a great importance. Further, the provisions of Assam Accord, which came into existence after a severe conflict in Assam, has been altered by the newly proposed Citizens hip Bill of 2016 for which the political situation in Assam at present has again become unstable. Although, there is a very less chance of getting this Bill passed in the Rajya Sabha due to absence of majority of the BJP party, while all other major political parties are now at present holding their stand against this Bill. And even if this get passed in the Rajya Sabha, it is likely to be turned down by the Supreme Court of India on the ground of this Act being unconstitutional. Whatever may be the consequences, if this Bill becomes law, then there will be no meaning at all for making the NRC. Assam has already provided an extension of time for determinin g illegal immigrants as compared to the rest of the country; any further extension will make the State suffer a lot. Although, the work of the NRC should have began much earlier, still now also the situation can be managed if political inconsistencies are controlled for the sake of the broader interests of the nation.

14 Basanta

Nirola, ‘The Real Reason People of Assam are Against the Citizenship (Amendment) Bill 2016’ YKA www.youthkiawaaz.com/2018/05/all-you-need-to-know-about-the-citizenshi p-amendment-bill-2016/ accessed 24 January 2016.

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CITIZENSHIP LAWS IN INDIA: FAILURE TO STOP ILLEGAL IMMIGRANTS FROM BANGLADESH -

Karsin Manocha and Arisha Azhar

INTRODUCTION The meaning of the word ‘citizenship’ continued to be a matter of discourse among the liberals, republicans and ethno-nationals.1 The liberal conception of citizenship views the individual as the bearer of a package of rights, designed to protect her personal liberties. On its face, the liberal concept of citizenship is the most inclusive and universalistic. 2 Citizenship is a key institution through which competing demands for the membership are made. It is also a mechanism for determining how prospective diverse groups should be delimited and what ‘concrete action should result from such solidarity’. 3 Citizenship is an axis in the terms of engagement between individuals, social groups, and the state. It is made up of a bundle of rights and obligations, which form the basis for attaining a full membership, the terms of participation and a sense of belonging in the social body. 4 Citizenship is a way nationhood is experienced in practice. 5 In as diverse a social setting as India, citizenship is a ‘mechanism of incorporation’ for competing membership claims. 6 The form of incorporation, or citizenship regime, is shaped by the institutional practices and their underpinning ideological conceptions, which define the paradigm for the allocation of politic a l, social, economic, cultural and symbolic resources, privileges and duties. 7 When India gained Independence, it was the moment ‘to make Indians’.8 The question of citizenship became particularly became important at the time of the making of our constitutio n

 The Authors

are undergraduate law students at Faculty of Law, Jamia Millia Islamia. Peled and Gershon Shafir, ‘Being Israeli: The Dynamics of multiple Citizenship’, Cambridge University Press (March 11, 2002), pg 1-27. 2 Shani, Ornit, “Conceptions of Citizenship in India and the 'Muslim Question.” Modern Asian Studies, vol. 44, no. 1, 2010, pp. 145–173. JSTOR, JSTOR, www.jstor.org/stable/27764650. 3 H.H. Gerth and C. Wright Mills (eds.), From Max Weber; Essays in Sociology, London: Routledge, 1997, pp.176. 4 Shani, Ornit, “Conceptions of Citizenship in India and the 'Muslim Question.” Modern Asian Studies, vol. 44, no. 1, 2010, pp. 145–173. JSTOR, JSTOR, www.jstor.org/stable/27764650. 5 Roger Brubaker, ‘Immigration, citizenship and the Nation-state in France and Germany’, University in Minnesota Press, 1998. P. 132. 6 Gershon Shafir and Yoav Peled,’ Citizenship and Stratification in an Ethnic Democracy’, Ethnic and Racial Studies Vol. 21, No. 3, May 1998, p. 409. 7 Deborah J. Yashar, Contesting citizenship in Latin America: The Rise of Indigenous Movements and the Postliberal Challenge, Cambridge University press, Cambridge, 2005, p.47. 8 Kenan Malik, ‘The meaning of race’, (quoted Massimad’Azeli) London: Mavmillan, 1996, p. 138. 1 Yoav

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because the constitution sought to confer certain rights and privileges upon those who were entitled to Indian Citizenship.9 The constitution, however, did not intend to lay down a permanent or a comprehensive law relating to citizenship in India. It only talked about people who would be citizens of India at the date of the commencement of the constitution and then left the entire clause of citizenship for the further interpretation and regulation by the parliament. The parliament then enacted the Citizenship Act, 1955 making much more comprehens ive provisions for the cancellation of the citizenship subsequent to the commencement of the constitution.10 After Independence in 1947, The Indian Independence Act of 1947 repealed the Governme nt of India Act, 1935 which nullified the ban restricting Indian legislature to enact laws having impact on British nationality and sovereignty. 11 The Constitution of India came into effect on 26 January 1950 but the provisions pertaining to citizenship came into force on the day the Constitution was adopted, i.e. 29 November 1949 and were applicable to all of India with the exception of the State of Jammu and Kashmir. The Constitution of India provides for a unique mode of citizenship, i.e., national citizens hip and no concept of separate state-based citizenship exists alongside. While citizenship is not defined in the Constitution, Part II of the Constitution, i.e., Articles 511 provides for a framework for citizenship at the time of commencement of the Constitution. Article 8 details the rights of citizenship of persons who reside outside India but are of Indian descent who are required to register themselves to become citizens. Article 9 imposes a limitation on people who have voluntarily become citizens of another State and bars them from acquiring Indian citizenship. Article 10 is a provision detailing the power of the parliament as a limitation to the right of citizenship, rather than a provision that confirms a right. Article 11 is a significant provision in that it vests in Parliament plenary power to enact legislation on citizenship and its related aspects. It specifically empowers Parliament to enac t provisions in relation to the acquisition, loss and other matters related to citizenship without being constrained by the constitutional provisions and the principles that underlie them.

Durga Das Basu, ‘Introduction to the constitution of India’, 22nd Edition, LexisNexis, 2015. Durga Das Basu, ‘Commentary on the Constitution of India’, 7th edition, Vol, A1 pp. 135. 11 A.N. Sinha, Law of Citizenship and Aliens in India,1962, Lucknow: Asia Publishing House. 9

10

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THE CITIZENSHIP ACT OF 1955 AND ITS SIGNIFICANCE

The substantive framework for citizenship was put in place by the Citizenship Act of 1955, which was enacted by the Parliament in accordance with the powers detailed in Article 11. This Act was supplemented by the Citizenship Rules of 1956, which were repealed by the Citizens hip Rules, 2009. As of now, the Act and the Citizenship Rules of 2009 constitute the current legal regime of citizenship in India. After the Citizenship Act, 1955, various modes of acquisition of citizenship were prescribed: Citizenship by birth, Citizenship by descent, Citizenship by registration, Citizenship by naturalization, citizenship by incorporation of territory. The Act details modes of acquisition and loss of citizenship as well as other miscellaneo us matters. Section 2 provides for definitions. Sections 3 to 7 deals with various modes as to acquiring of citizenship. Sections 8 to 10 deals with modes as to loss of citizenship. Sections 11 to 18 deal with miscellaneous matters of administrative import, offences under the Act and concept of Commonwealth citizenship being repealed by 2003 Amendment. 12 There are three schedules which are left attached to the Act. The First Schedule concerning Commonwealth citizenship has been repealed. 13 The Second Schedule contains the oath of allegiance that potential citizens have to take. The Third Schedule spells out the requirements for naturalisation. The Fourth schedule lists out the specific countries whose citizens of Indian origin are eligib le to apply for overseas citizenship of India. The 1992 amendment sought to reframe this gendered provision in an egalitarian fashion.14 The 2003 amendment removed the requirement of being a national of another country. 15

ENCROACHMENTS IN ASSAM FROM BANGLADESH

Commonwealth citizenship as envisaged by The Citizenship Act, 1950, Sec. 11 meant ‘Every person who is a citizen of a Commonwealth country specified in the First Schedule shall, by virtue of that citizenship, have the status of a Commonwealth citizen in India’. 13 Repealed by The Repealing and Amending Act, 1960. 14 ‘Citizenship’. In S. Choudhry, M. Khosla, and P. Mehta (ed.), The Oxford Handbook of the Indian Constitution. Oxford: OUP. 15 The Citizenship (Amendment) Act, 2003. 12

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The geographical location of the State of Assam connects as it is with the rest of India through a ‘Chicken Neck’, has slowly metamorphosed in to a heaven of encroachers. Swarming, as they do, from all directions beyond the boundaries of the State and the country, they have a heaven reserved for them that is safe, secured and luring. As there is none to question their sudden godly emergence; none to inquire in to their identity their State of origin, their language, their ancestry and also none to ascertain as to why and how they cross the barriers of the international borders seemingly guarded by armed security forces. Therefore, the immigration and infiltration by the Bangladeshis go on and on forever having equally dangerous consequences such as a pristine people inhabiting the mystic land called Assam is slowly, silently and disastrously marching towards an invisible whirlpool of extinction- in terms of not only their lands or land rights, their very identity. The State and Central Governments, scared of losing the succour of illegal vote Banks and also of losing power, succumbs to the lures of the massive illegal vote banks built up over the decades, in reality, under their own invisible protective wings. To make the things worse, the indigenous lots, made up different pristine tribes, clans and ethnic groups, are afflicted with the malady of ease-loving, aversion for hard labour and dependence on the Bangladeshis. The cries of citizens of Assam are cries in the wilderness and therefore, invoke no attention of the powers-that-be. And all this provides a fertile soil for research in to an unexploded myth that is, as to why the Governments and the people behave the way they do, and further, why there is none- no intellectuals, no educationists, no administrators or social leaders, much less politicians, to feel concerned, even if their eclipse of identity in the whirlpool of surging infiltration from the most fertile human factory of the world, is imminent. In this dismal situation, the picture for the indigenous people is grim, the sky of their hope is gloomy and the prospect of their survival is sham or illusory. Assam- a land unique in its charm to cause exodus of all earthly beings from all directions and to all places having reserved forests, roadside or riverside reserves, Government waste land or water bodies or hills or the lands comprised in protected Belts or Blocks or the land assigned to religious and charitable institutes including the satras, the temples, the Thaans or any other place of sanctum sanctorum lures all.

ASSAM ACCORD AND SECTION 6A OF CITIZENSHIP AMENDMENT ACT, 1985

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In 1980, following the discovery of foreigners’ names on electoral rolls, the All Assam Students’ Union submitted a memorandum to the erstwhile Prime Minister of India, Indira Gandhi. Agitations against the influx of foreigners had begun as early as in 1974. In light of the situation where foreign participation was determining the fate of the polity and impacting the “political, social cultural and economic life of the State”, this memorandum16 was drafted and submitted. The memo provided context and evidence regarding the issue at hand. It presented data to demonstrate the massive increase in the population of Assam between 19511971. Till this point, the AASU movement had been non-violent. However, contemporaneo us with the controversial elections of 1983, where several illegal migrants were included in the electoral rolls, the peaceful agitations took a turn for the worse. On February 18, 1983, an indigenous Assamese tribe that was predominantly Hindu attacked the village of Nellie where a minority of Bangladeshi migrants had settled. These migrants were predominantly Muslim women and children.17 The official death toll stood over 2000, while unofficial sources maintained that the actual toll was closer to 10,000. This communal clash irrevocably changed the character of the Assam agitation and weakened its support base considerably. It is claimed that the agitation was on hiatus between 1984 to 1985 on account of the Nellie massacre and the sudden death of Prime Minister Indira Gandhi. In 1985, however, negotiations resumed between the Central government of India and AASU with Rajiv Gandhi as the new Prime Minister. These negotiations came to fruition in the form of the Assam Accord – a political settlement between the AASU, the All Assam Gana Sangram Parishad (a regional political party), the state government and the central government. Both the Assam Accord and the resulting Section 6A introduced by the 1985 amendment have had a far-reaching impact in that they still inform current debates on citizenship. Until the amendment in 1992 this provision only recognised patrilineal descent.

FUNDAMENTAL RIGHTS VIOLATION IN ASSAM Section 6A divided “illegal” immigrants (i.e., those whose parents or grandparents were born in undivided India) who came into Assam from Bangladesh into three groups: The first group

All Assam Students’ Union, Memorandum to the Prime Minister of India, 1980, available at http://www.assam.gov.in/documents/1631171/0/Annexure_9B.pdf?version=1.0&t =1444717499000. 17 See Hundreds die in Assam poll violence, BBC, 1983 can be assessed at: http://news.bbc.co.uk/onthisday/hi/dates/stories/february/20/newsid_4269000/4269719.st m 16

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(came to the state before 1966) was to be regularised. The second group (came to the state between 1966 and 1971) was to be taken off electoral rolls, and regularised after ten years. The third group (came to the state after 1971) was to be detected and expelled in accordance with law. These illegal migrants have been virtually conferred dual citizenship, as these migrants never renounced their Bangladesh citizenship as they have not taken any oath of allegiance to the Constitution. Due to influx of illegal migrants who are provided with deemed citizenship, the origina l inhabitants of Assam have been limited to a minority in their own state and has caused insecurity among them that their political rights have been diluted as they have become a minority, their political representation has been reduced. The deemed citizens after the period of 10 years will be included in electoral rolls and could vote and elect their representatives which would harm the political interests of the minority and therefore, Section 6A violates Articles 325 and 326 of the Constitution diluting the political rights of the citizens of Assam The amendment was done on the basis of an artificial classificatio n, bereft of any rationale. This classification was specially made for Assam, which is nothing but discriminatory. As, in Meghalaya, if a person is a post-1951 migrant he/she would face deportation. Thus, being in direct violation of Article 14. It has been held in Sarbananda Sonowal v. Union Of India 18 that such an influx is “external aggression” within the meaning of Article 355 of Constitution of India, and that Central Government has done precious little to stem this tide thereby resulting in violation of Art. 355. As a result of this huge influx, periodic clashes have been taking place between the citizens of India and these migrants resulting into loss of life and property, sounding in a violation of Articles 21 of the Constitution of the Assamese people as a whole as There have been instances of not only an assault on the life of the citizenry of the State of Assam but there is an assault on their way of life as well. The culture of an entire people is being eroded in such a way that they will ultimately be swamped by persons who have no right to continue to live in this country. Section 6A is in direct violation of Article 29(1) which gives protection to every section of the citizens having a distinct language, script or culture by guaranteeing their right to conserve the same. Article 29(1) is not subjected to any reasonable restrictions.

18

(2005) 5 SCC 665.

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The right conferred upon the citizens to conserve their language, Script and culture is made absolute by the Constitution as held by the Supreme Court in Jagdev Singh Sidhanti v. Pratap Singh Daulta19 that Right to conserve the language of the citizens includes the right to agitate for the protection of the language. Article 29(1) is not subject to any reasonable restriction like Article 19(1). It is to be noticed that Article 29 (1) does not refer to any religion, even though the margina l note of the article mentions the interests of the minorities. Therefore, all citizens irrespective of whether they belong to the majority or the minority are alike.

FAILURE TO STOP INFILTRATION FROM BANGLADESH

The disaster the original inhabitants of Assam are confronted with is no better than a mass suicide by a pristine people-who include not only the government leaders made up the indigenous people, but all classes of the same people at all levels who may be either corrupt or callous, hypo crates or self-seekers, intellectuals or scholars and teachers or bureaucrats. The government of India and State Government of Assam though having a legal power to detect and deport illegal immigrants in India, they have failed miserably in performing the functio n of State Security and the Indian Judiciary time and again have intervened and passed orders to provide some relief to the original inhabitants whose population has turned into minorit y in their own state.

In SarbanandaSonowal v. Union Of India 20 , the Apex Court has held that the provisions of the Illegal Migrants (Determination by Tribunals) Act, 1983 and the Illegal Migrants (Determination by Tribunals) Rules, 1984 are declared to be ultra vires the Constitution of India and are struck down; the Tribunals constituted under the Act shall cease to function; all cases pending before the Tribunals shall stand transferred to the Tribunals constituted under the Foreigners (Tribunals) Order, 1964 and shall be decided in the manner provided in the Foreigners Act. The Central Government was directed to constitute sufficient number of Tribunals under the Foreigners (Tribunals) Order, 1964 to effectively deal with cases of foreigners, who are illegally residing in Assam.

19 20

AIR 1965 SC 183. Supra Note 18.

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A Foreigners (Tribunals for Assam) Order of 2006 was promulgated which was again struck down being found to be unreasonable and arbitrary and which instead of expeditious ly discovering illegal migrants and deporting them, again did the opposite by the Supreme Court in SarbanandaSonowal(II) v. Union Of India 21 . In Louis De Raedt v. Union of India 22 , The Apex Court has held that the power of the Government of India to expel foreigners is absolute and unlimited and there is no provisio n in the Constitution fettering its discretion and the executive government has unrestricted right to expel a foreigner. In State of Arunachal Pradesh v. Khudi Ram Chakma 23 , it was held that the fundamenta l right of a foreigner is confined to Article 21 for life and liberty and does not include the right to reside and stay in this country, as mentioned in Article 19(1)(e), which is applicable only to the citizens of the country. After referring to some well-known and authoritative books on International Law it was observed that the persons who reside in the territories of countries of which they are not nationals, possess a special status under International Law. States reserve the right to expel them from their territory and to refuse to grant them certain rights which are enjoyed by their own nationals like right to vote, hold public office or to engage in politica l activities. Aliens may be debarred from joining the civil services or certain profession or from owning some properties and the State may place them under restrictions in the interest of national security or public order. Nevertheless, once lawfully admitted to a territory, they are entitled to certain immediate rights necessary to the enjoyment of ordinary private life. In SarbanandaSonowal v. Union Of India24 , the Hon’ble Supreme Court held that Bangladeshi nationals who have illegally crossed the border and have trespassed into Assam or are living in other parts of the country have no legal right of any kind to remain in India and are liable to be deported.

CONCLUSION

21

(2007) 1 SCC 174. (3) SCC 554. 23 1994 (Supp.) SCC 615. 24 Supra Note 18. 22 1991

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The research paper points out to the State and Central Government’s inability to enact proper laws to deport the illegal immigrants from the country. The challenge of stemming this flow and repatriating the illegal immigrants back to Bangladesh is indeed daunting. A bundle of multipronged, well-coordinated strategies pursued under an appropriate legal framework might be better able to address this problem in a more effective manner.

Like in a recent case of Assam Sanmilita Mahasangha&Ors v. Union Of India &Ors.25 , where the Hon’ble Supreme Court considered the necessity of issuing appropriate directions to the Union of India and the State of Assam to ensure that effective steps are taken to prevent illega l access to the country from Bangladesh; to detect foreigners belonging to the stream of 1.1.1966 to 24.3.1971 so as to give effect to the provisions of Section 6(3) & (4) of the Citizenship Act and to detect and deport all illegal migrants who have come to the State of Assam afte r 25.3.1971. The Court exercising the rule making power enshrined under Article 142 of the Constitutio n of India, passed the following directions:

a) Border fencing, Border Roads and provision for flood lights

The Court ordered various infrastructural requirements to be met to prevent illegal migration: i. Complete the fencing along the Indo-Bangla Border ii. Maintain the already completed fencing and Continuous patrolling along borders iii. Repair the fencing so as to constitute an effective barrier to cross border trafficking iv. Motorable roads along the international border laid to increase effective patrolling

b) Foreigners Tribunals

The court requested the Chief Justice of the Gauhati High Court to monitor the functioning of the Tribunals by constituting a Special Bench which will sit at least once every month to oversee the functioning of the Tribunals and to expedite and to finalise the process of selection of the Chairperson and Members of the Foreigners Tribunals.

c) Change in Existing Mechanism of Deportation of Declared Illegal Migrants

25 (2015)

3 SCC 1.

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The court directed the Union of India to enter into necessary discussions with the Governme nt of Bangladesh to streamline the procedure of deportation and to enforce a bilateral agreement between that provides for taking back nationals who stay illegally in the other country after due verification.

d) With regard to Monitoring and updating of National Register of Citizens

The implementation of the aforesaid directions will be monitored by this Court on the expiry of three months from today. In the event it becomes so necessary, the Court will entrust such monitoring to be undertaken by an empowered committee which will be constituted by this Court, if and when required. The Supreme Court has also given orders that national registratio n of citizenship must be completed in border areas by January 1, 2016. The Registrar of National Register of Citizens to update the National Register of Citizens with respect to Assam relying only on the details incorporated in the National Register of Citizens prepared in 1951.

e) International Commitments of India regarding Refugees and Immigrants

In the absence of any specific law dealing with refugees/illegal immigrants, all foreigners in India are covered by the Foreigners Act, 1946, which simply defines a foreigner as “a person who is not a citizen of India.” It does not distinguish between refugees and illegal immigra nts, nor does it define refugees as a specific category needing humanitarian protection. India needs to enact a national refugee law so that refugees are clearly defined and can be distinguis hed from illegal immigrants, followed by concerted action to detect Bangladeshi immigra nts, assign them to separate categories of refugees and illegal migrants, resettle or repatriate them, and prevent any further influx. India may also consider taking assistance and advisory services from the UNHCR, the International Organization for Migration (IOM), and other concerned international agencies with experience in this kind of complex issue.

Therefore, the Central and State Governments may together work upon the directions and guidelines of Supreme Court of India. REFERENCES • Alok Kumar Gupta, and SaraswatiChanda , “India and Bangladesh: Enclaves 88

Dispute”, 2000. th

• Durga Das Basu, Shorter Constitution of India, 14 Ed. Reprint 2011, Lexis Butterworths Wadhwa, Nagpur. • N.G. Jayal, Citizenship and Its Discontents: An Indian History, Harvard Univers ity Press, 2013. • Marcus F Franda, Bangladesh, the First Decade (New Delhi: South Asian Publishe rs Pvt Ltd; Universities Field Staff International, 1982). • Pranati Datta, “Push-Pull Factors of Undocumented Migration from Bangladesh to West Bengal: A Perception Study,” The Qualitative Report, Vol. 9, No. 2, June 2004. • Rizwana Shamshad, Bangladeshi Migrants in India, 2017, Oxford University Press. • S. Choudhry, M. Khosla, and P. Mehta (ed.), “The Oxford Handbook of the Indian Constitution”. Oxford University Press, 2016. • Sanjib Boruah, ‘‘Separatist Militants and Contentious Politics in Assam, India: The Limits of Counterinsurgency’’, Asian Survey, Vol. 49, No. 6, 2009. • Stephen Castles, “Migration, and Community Formation under Globalization,” International Migration Review, Vol. 36, No. 4, Winter 2002.

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INDIAN CITIZENSHIP LAWS -Kush Goel ABSTRACT: Citizenship law in India is governed by the Citizenship Act, 1955 which particularly deals with matters relating to the acquisition, determination and termination of Indian citizenship and The Constitution of India. India is one among few countries whose citizenship law is incorporated within the constitution itself. Due to inescapable circumstances arose as a result of the partition of India and Asian country and therefore the freedom of Indian state to either be a part of the Union or leave it, the citizenship law had to be incorporated within the constitution itself. “Domicile is different from citizenship. The person might possess one position and completely different domicile.” Part II of the Constitution of India (Articles 5-11) particularly deals with the Citizenship of India. “According to Merriam-Webster Dictionary, a citizen means a person owing allegia nce to and entitled to the protection of a sovereign state”. Citizenship provides rights such as right to vote and is also subjected to duties or obligation, such as paying taxes. Article 5 speaks regarding citizenship of India at the commencement of the Constitution. Article 11 gave powers to the Parliament of India to regulate the right of citizenship by law. Thus, citizens hip act was enacted by the Parliament. This act is to provide for the acquisition and termination of Indian citizenship and the same acts speaks about citizenship of India after the commenceme nt of the constitution. Nationality and citizenship are often used interchangeably in general discourse in India. There is a definite ambiguity regarding these terms, especially in more recent times, when ‘nationality’ and ‘nationalism’ have once again become sites of strife. Few groups of citize ns have been charged with ‘anti-national’ sentiments, even as their citizenship is seemingly accepted. In Indian citizenship law however at least as courts have interpreted these conceptsthere exists a clear distinction between citizenship and nationality. In a renowned case decided in the 1960s, the Supreme Court of India held that citizenship is applied only to natural persons and connotes a legal status that determines civil and political rights within the context of domestic law. Nationality can be applied to either natural persons or juristic persons and determines the civic rights of a person in the milieu of international law.

 The Author is

an undergraduate student at Himachal Pradesh National Law University, Shimla

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Therefore, this paper employs itself in two key areas of research. The first attempt is made in order to analyse “why India’s new citizenship law is so controversial and why some regions are angrier than others”. The second attempt made in this paper is focusing on “political rhetoric or constitutional morality” which is given in the theme itself. Keywords- The Constitution of India, 1950, The Citizenship Act, 1955, Merriam-Webster Dictionary, Citizenship, Domicile, Descent, Registration, Naturalization. INTRODUCTION: The right to nationality is essential to facilitating the actualisation of all other fundame nta l human rights. In this way International law provides that all persons have the right to a nationality, State’s still retain the right to determine how nationality is acquired. Citizenship in India has been deeply marked by colonial continuities and ruptures. It is being transformed by demographic and political shifts. In recent years, the rise of Hindu majoritarian parties at regional and national levels has added a further level of complexity to these trends. NirajaJayal has persuasively argued that the substantive character of Indian citizenship has modified over time, from ius soli to ius sanguinis. At the time of the commencement of the Constitution, He argues, the organizing principle was ius soli i.e. on the basis that birth on the soil of Indiawould confer citizenship rights although this was mixed with other bases. More recently, however, the organizing principle of Indian citizenship has leaned more towards ius sanguinis, i.e. based on descent or through the citizenship of parents, and expressly disfavouring those who are Muslims. People argue that along this shift, there are other changes afoot, because although there has been a shift towards the privileging of Hinduism in matters relating to citizenship laws more recently, this movement has not been uniform as Hindu Tamils from Sri Lanka have not benefited much from this trend. So, religion is not the sole illustrative issue for the complex trajectory of citizenship laws in India. The terrain of citizenship laws continues to be a shifting, evolving space that will no doubt see extra change in the future, in response to agonistic contests between different groups of Indian citizens. WHY INDIA’S NEW CITIZENSHIP LAW IS SO CONTROVERSIAL?: Citizens of India’s north-eastern states have been protesting strongly against a proposed new citizenship system that they claim will destroy their culture in the region. The protests have been diverse and dramatic-petitions, hunger strikes, effigy-burning, a rebel militant group threatening to end talks with the Indian state. The basis of their anger is the Citizens hip Amendment Bill, first tabled in the lower house of the Indian Parliament in 2016. It is set to 91

change the Citizenship Act of 1955, which has formed the basis of India’s citizenship system since it gained independence from the British Empire in 1947. The amendment seeks to allow select persecuted minorities from the neighbouring countries of Bangladesh, Pakistan and Afghanistan citizenship status in India after six years of residency. Other groups must wait 11 years to become naturalised citizens. In the north-eastern states, the fear is that this amendment would legitimise migration of Hindus from neighbouring Bangladesh in particular, potentially affecting the demographic make-up of the region. When the bill’s parliamentary committee began touring the north-east in May, protests grew steadily larger, stronger and more widespread. As almost 99% of their boundaries are international borders, the citizens of these states have been quick to point out that they would be the first victims of the new amendment if it makes it easier for minority immigra nts to travel across the border, settle in and become full citizens. The complaints are loudest in the state of Assam, which has waged a four decade struggle against the Indian state to prevent what some there call unchecked infiltration from neighbouring Bangladesh. The committee’s decision to visit the north-east and the media coverage of the protests has framed this as a north-eastern concern, not a national concern. But in reality, the Citizens hip Amendment Bill will change the character of citize nship not just for this area, but for India as a whole. When India achieved independence, its citizenship system was established on the basis of jussoli (birth within a territory), meaning that people were members of the politica l community regardless of their religion or ethnicity. While mistrust of Muslims has persisted into present day India, particularly in recent years with growing Hindu right-wing populis m, the law has so far upheld the secular, non-religious character of the Indian state. The Citizenship Amendment Bill would fundamentally alter this basic tenet, shifting the basis of citizenship towards jussanguinis (by right of blood). But, as historians such as Joya Chatte rji and OrnitShani have documented, there have been many challenges to the principle of citizenship by birth especially in the period immediately after the partition of India and Pakistan in 1947. In contrast to Muslims, Hindus were from the start considered “natural citizens” of India. Muslim citizens of pre-independence India were ostensibly given a choice between the two countries, but in practice they were subjected to arbitrary processes to prove their loyalty to the Indian state. Similar demands were not made of Hindu citizens crossing the border from the newly-formed Pakistan back into India. Regardless of which states or regions would be most 92

affected by a sizeable influx of migrants, the bill changes the character of Indian citizens hip and the basis on which it is granted, moving from secular to openly favouring specific groupsparticularly Hindus. It opens the door for the creation of second-class citizenship for nonHindus and most of all Muslims- not just in the extra-legal practices of discrimination and violence that exist in the present scenario, but in the law. Given that India repeatedly fails its own minorities, perhaps it’s not surprising that it is only prepared to offer refuge and asylum on the basis of ethnicity, not humanitarian need. It’s no coincidence that this amendment was introduced by the ruling Bhartiya Janta Party (BJP), led by the prime minister, Narendra Modi, which has an terrible track record in protecting India’s minorities, whether they are Muslims, Christians or Dalits. Nor has it shown any inclination to help rehabilitate South Asia’s largest persecuted minority, the Rohingya. Still, the bill also leaves out Muslim minorities in Pakistan, such as Shias and Ahmadis. There is also speculation about whether the bill is a means to appease India’s Hindu diaspora abroad an important funding base for the ruling party. Even the relatively hard line BJP is not immune to public resistance. The protests in the north-east prompted India’s government to backtrack and table discussions to address what it euphemistically referred to as “people’s concerns”. But by framing the amendment as a regional issue, the government has managed to confine public opposition to the people of the north-east. Because the region is already marginalised in Indian politics, the rest of the country is often apathetic about its concerns, which rarely become panIndian ones. Still, that the citizens of the north-east are protesting so vehemently – whatever their precise grievances- is currently the only sign of dissent. Unless it feels the heat of visib le and vocal public outrage, the Indian state is likely to continue its slide towards becoming a very different, less inclusive, and increasingly more unjust country. THE CONTEMPORARY INDIAN POLITICAL LANDSCAPE: This paper has so far concentrated on the context of citizenship laws in India from the time of formal independence in the middle of the twentieth century till the 1980s. During this entire period, the politics of India was dominated by the Congress party. The Congress was the leading vehicle for the anti-colonial, nationalist movement, and had also been the sheet anchor of the drafting process of the Constitution. In the post-independence phase, Congress governments under Prime Ministers Nehru, Shastri and Indira Gandhi had broadly adopted modernist and secular forms of governance. This changed from the 1970s onwards under Prime Minister Indira Gandhi who began to adopt strategic policies to court constituencies among 93

religious minorities such as Muslims, Sikhs and other groups in particular regions and states. Several commentators expressed alarm at the overt or covert communalization of politics which, they argued, would invite a backlash from Hindu majoritarian groups which had remained marginal in the legislative sphere since Independence. In the 1990s, this came to pass and the Bharatiya Janata Party (BJP) became a significant party representing the interests of the Hindu majority at the national level. From having a mere 2 seats in the 540 member lower House of Parliament in 1984, the BJP became the single largest party in general elections held in 1996, 1998 and 1999, securing more seats than the Congress nationwide. It formed the government at the Centre in 1996, but governed only for 13 days. In 1999, the BJP-led coalition government was more successful and lasted for its full five year term, the first non-Congress government in India to do so. From 2004 to 2014, India was governed by a Congress-led coalition. In general elections held in 2014, the BJP was returned to power at the head of a coalition government. What is striking, however, is that Prime Minister Narendra Modi’s government, although formally a coalition, can govern on its own as the BJP has a majority in the lower house of Parliament. At the time of writing in mid2017, the BJP has been remarkably successful in state elections and is in power in 17 out of the 29 states in India. Since 2014, the BJP and Hindu majoritarian policies have clearly been on the ascendance in Indian politics, a context which frames the policy changes in the sphere of citizenship that we examine in this section. RECENT CHANGES IN CITIZENSHIP LAW IN INDIA: Some broad trends can be noted in successive attempts at amending citizenship laws by BJP governments (which have been in power in 1999-2004 and 2014-present) and in the case-law emanating from the Indian judiciary in recent years: i)

A hostile attitude towards ‘illegal migrants’ who, it is argued, have swamped

states neighbouring Bangladesh including Assam and Arunachal Pradesh since the 1960s and must be reined in through changes to citizenship laws. Paradoxically, the same attitude is not exhibited towards a similar trend in Western India where people from Pakistan have similarly run afoul of citizenship laws while crossing the border from Pakistan. As Jayal carefully documents, the difference may be that of religio n. The ‘illegal migrants’ in East India are largely Muslim while in West India are largely Hindu.

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ii)

An increasingly open and sympathetic attitude towards claims of citizens hip

advanced by Hindus, Buddhists, Jains, Sikhs and Christians, especially when made from the South Asian region, on the ground that being religious minorities, they face persecution in Muslim-majority societies. The same sympathy is not extended to persecuted groups like Ahmaddiyas and Shias or, for that matter, to Tamils from Sri Lanka. There is an actively hostile approach to claims advanced by Muslims generally. iii)

An active pursuit of policies aimed at the eventual goal of dual citizenship for

people of Indian origin. Though aimed at the overall origin, these policies seem aimed at benefiting groups located in particular regions of the world, including North America and the United Kingdom, which are more affluent and better placed to assist politica l parties and policies of foreign investment. These trends are reflected in the body of two recent attempts at amending the Citizenship Act of 1955, introduced in 2015 and 2016. The Citizenship Bill of 2016 was introduced in the Lok Sabha and is pending before a Parliamentary committee. The 2016 Bill has been criticised as being biased against Muslims. One would be negligent but, in characterising this issue purely as one of religious bias. As mentioned, this Bill is also silent on the Tamil refugees from Sri Lanka, who are predominantly Hindu and constitute one of the largest refugee groups in India. Tamil refugees have not only been at the receiving end of the government’s indifference but have also been subjected to differential treatment. As per the rules of a new fee regime of citizenship that was implemented in 2016, Hindus from Bangladesh and Pakistan, who were eligible to apply for Indian citizenship have to pay a nominal fee of Rupees 100.58 Hindus from Sri Lanka, i.e. Tamil refugees however, are required to pay Rupees 10, 000.59 Prima facie there seems to be no discernible rationale for this differential treatment. These are but a couple of illustrations of the government’s attitude towards Tamil refugees. The purpose of these illustrations of legislative and policy measures that exclude or allegedly discriminate against the predominantly Tamil refugee population legally residing in India was to complicate the claim that the shift in citizenship laws in India is shaped by religious and communa l considerations alone. The story of the sustained neglect of Tamil refugees indicates religio n, while undoubtedly an important factor, is not the only factor at play. Beyond this, in the broader political landscape, the issue of nationalism has come to the fore in recent years. Right wing groups have charged that various groups of people harbour ‘antinational’ sentiment. Typically, these charges are levelled at Muslims and other minor ity groups, but also at members of the Hindu majority who are academics, writers, artists, public 95

intellectuals and anti-superstition activists who do not subscribe to the views of these right wing ideologues. What is worrying is that very often; these charges of fringe groups have resulted in state-sponsored charges of sedition and other criminal proceedings. Traditiona l symbols of nationalism, such as the national flag and the national anthem are being elevated in their symbolism by both state and non-state actors, and people who object to this trend are subjected to forms of abuse, from psychological to physical to murder in extreme cases. To understand these trends, one has to adopt a broader perspective. Laws that seek to prohibit cow slaughter and secure the banning of beef may seem, at first blush, to be about issues other than citizenship. However, if we view citizenship as being about deeper issues of identity, includ ing about what individual citizens can eat, read, think or do, then these laws do implicate aspects of citizenship. This is equally true about laws which seek to make the ‘Unique Identifica tio n Document’ or ‘Aadhaar card’ mandatory for all banking and tax transactions and for being able to use a cell phone. The latter promises to embed in the Indian legal regime, the largest system of State surveillance ever conceived and will undoubtedly have implications for the enjoyme nt of broader rights and privileges. CONCLUSION: This paper aimed to analyse why India’s new citizenship law is so controversial and why some regions are angrier than others and political rhetoric or constitutional morality. This also has sought to provide an overview of the historical circumstances and events that have shaped the constitutional provisions and legislative landscape relating to citizenship rights in India. These are some revealing cracks and tensions, which the judiciary is often called upon to resolve. The Indian judiciary’s track record in playing the role of an umpire has been less stellar on this issue than on most other constitutional issues. This makes it imperative that other institutio na l actors step in to prevent a situation where this important constitutional terrain is captured by particular groups. Constitutional stability requires a balance among competing groups and their interests and current Indian citizenship laws exhibit a tendency to move towards an extreme end. When ordinary politics and the courts do not seem able to play a moderating influe nce, some other actors are required to step in to fill the gap. On this issue that is of vital interest, civil society groups and academics may have to play that role, at least in the short term. Raising the profile of these issues, which usually stay below the national radar, is therefore an imperative. REFERENCES: 96

# The State Trading Corporation of India Ltd. And Ors. v. The Commercial Tax Officer, Vishakhapatnam and Ors. (1964 SCR (4) 89) # High Court of Delhi (2010), “Namgyal Dolkar v. Government of India, Ministr y OfExternalAffairs”, (http://www.mcrg.ac.in/AddReading/2013/NAMGYAL%20DOL KAR%20Case.pdf) # “Tibetan refugees to get Indian passports”, The Times of India, April 18, 2017 (https://www.pressreader.com/india/the- times-of- india- new-delhi-edition/2) # “Government sets conditions for Tibetans to get passports, says move out of settlements, forgo benefits”, Hindustan Times, June 26, 2017 (http://www.hindustantimes.com/india- news/govt- riders- for-tibetans-to- get) #Vijaita Singh, “Centre opens gates wider for Tibetans going abroad”, The Hindu, February 4, 2018 (http://www.thehindu.com/news/national/centre-opens- gates-wid erfor-tibet) # Ko, S. (ed.) 1990, Nationality MartinhusNijhoff Publishers

and International

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Law in Asian Perspective,

D-VOTERS: ABUNDANCE PRECAUTION & ILLEGAL PERSECUTION - Megha Sood and Anmol Gupta “Effectiveness in the trending process, An endeavor to gorge, to chasm, & ultimately to bridge in the gap”

ABSTRACT The concept of d-voters comprises, two words “D” & “Voters”. D is the abbreviation given to dubious which means doubtful. Voting is the very axiom of every society to nurture the amicability, so as to crochet the social mold of clover. Every citizen of the nation has evinced to be that caster, who has worked till the last drop of his sweat to pave the tenor for the development of the nation as far as doable. This paper brings into the limelight the way, how contemporaneously this NRC helps to flourish the nation at the height of seven skies along with the comparative study of the registration process of other nations. Discrimination in every field assists in abbreviating the number of cases up in the air. Even Constitution of India has guilelessly channelized the head on process to embrace every illegal feud. For every democratic nation NRC forms the basic condign of the very existence of every individual irrespective of any discrimination. The concept of the “D-voters” forms the pedestrian over 3W Principle:-

3W Pri nci ples

Who ca n a ccess over NRC Proces s ?

When i t is to be a ccess?

In wha t rega rd?

This paper also throws the light upon how this vaunt web of discrimination has put up the fate of some of the Indian Nationals is at the verge of selvage, leading to the cunctation of justice on a whole. The bare bones of legislature have mustered self-moving, self-regulating and selfstarting adequacy in every individual. The illegal persecutions in NRC has ante-up a deep blow to the efficacy of the kinfolks to fight for a square deal. This paper also reflects such paradigms

 The Authors

are students at Lovely Professional University

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which are the glared matters of the daily headlines. The crescive notch of such inequalities attained by illegal persecution has ruined the convivial truce of the nation on a whole. Such risks are always there with the bells on to concoct walloping social repercussions over the dwellers of the society. Since the time immemorial the supreme law is known to be the giant hub, containing large number of resources with an endeavor to provide the ample of precautions in the legal framework for the registration of the citizens of the nation head on, which was affirmed to place everybody on equal footing. Lastly this paper reveals such illegal persecution in the implementation of the constitutional & political processes which are impeding the credibility of the nation, once the plausibility is destroyed the society will become vulnerab le to the illegal persecution hampering the social consistency of every discrete. So to curb the edifice of such persecutions, an embankment comprising a legal framework is regarded to be used as social security tool, which sequentially safeguards the rights and interests of the clan at large.

Keywords: Abundance precautions & illegal persecutions in NRC, crescive notch of d-voters in registration process curb the edifice of such inequalities, sequential safeguards of rights and interests.

INTRODUCTION “A tool of law never deny, Rather commanding the government to codify, For giving the answer to every why, Men always boards the odd bus, taking the odd way, But law affords a legal thruway.”

Racial prejudice, anti-Semitism, or hatred of anyone with different beliefs has no place in the human mind or heart. -Billy Graham The terrene avant-garde has involved itself in dealing with many cans of worms. Each member of our society is today making an endeavor to cope up with the perplexity running right from 99

the problems of the environment ending up to the economic problems. The ways to resolving or getting the answers, solutions to such difficulties is not so hard to find as it is thought to be. However there is only one unique problem which our society is undergoing, under the shade of irons in fire for a very long time. The discrimination on the basis of the race of an individ ua l be it the man or the women. Bruce Schneider has described that failure modes are very different. In modern era, equality must be a priority. One often hears about cases of injustice against minorities in every field, particularly when it comes to the registration of the citizens. If villainy is being done, there is a preconceived notion that injustice is being done to those who are weak in numbers in comparison to the upper strata governing the society as a whole, meaning thereby having the full control over the mechanis m. It usually never occurs to people that hassle can be done to the creamy layer of the society, i.e.Blue Blood People.1 But nowadays, there has been several extracts depicting that the illega l persecutions in NRC has ante-up a deep blow to the efficacy of the kinfolks to fight for a square deal, because of which it is been phony that that there has been considerable increase of the pitfalls on the part of the government. The struggle for those who are required to prove their identity continues even after they are declared to be belonged from their particular niche. D-Voters are the moiety of the people who are pseudo foreigners, finicky bootleg perching in the others home land. All their citizenship rights, entitlements & privileges as a Nationalist of the particular nation are held back unless those aliens pan out themselves to be the Nationalis ts of that very Nation. D-VOTERS AS CROOKED GALLING As the facet of Elections whacks in the autonomous nation like India, no one will abide up to hark to the thousands who were on spur of the moment called foreigners & are peeled from voting rights. Since 1997, whilst recalibrating the lists of voters, the Election Commission had etch the letter “D” as a suffix to more than 2.3 lakh names, naming the game thereby for those people whose citizenship is abruptly begird with the question. Such an illegal persecution has come into cruet to weed out the foreigners from the legitimate citizens in the region that has seen waver of the migration for over the years. On the other hand, most of the names, which are enlisted in the

1 Agnes

Flavia,Law and The Politics of Minority Rights In India, 37 (2001).

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voters list, are not likely to be the actual citizens. 2 All those who are debarred from their legal voting rights are actually restrained under the influence of the elite class, who are running the administrative carts of the nation. So even by the advent of this concept of D-Voters either one could assume that all those who are declared to be illegal immigrants will be flushed out? Or one could expect a better life & dignity for those who are the genuine citizens? REPREHENSIBLE AMENDMENT OF CITIZENSHIP BILL The root cause of these Abundance precautions & illegal persecutions in NRC lies pretty well in the coeval form of the Citizenship Amendment Bill 2016, 3 which is unworthy of becoming an Act, because when any confabulation follows to become an enactment it is a condign which is to be free from any kind of politics thereby in fugacious of the legislations that has gone around the barn, pie in the sky of the core democratic ideals of India. It is to be lug into light that the very end in view of the amendment is to rejuvenate the regnant Citizenship Act 1955, which cocksure the provision for the acquisition & determination of the Indian Citizenship for certain Category of illegal migrants. Not only this additionally, this bill has slackened the citizenship criteria for such immigrants & hitch on the assertive calibers of persons Of Indian Origin (PIO) & Overseas Citizen of Indian (OCI) together. There are several loopholes, in this current proposal following are some of them:1. The illegal immigrants who are to be granted the benefit of this particular legisla tio n who are required to qualify for the citizenship only on the basis of the religion. 2. There is desideratum that goes completely against one of the basic tenets of the Indian Constitution, “Secularism.” 3. Moreover both Overseas Citizens of India & Persons of Indian Origin have been merged in a haphazard manner, marooning the cleft orifice in the definition of their positions as citizens. DEVOIR OF ABUNDANCE PRECAUTION It is imperious because this flimsy amendment hasn’t materially expanded the rights of both OCIs & PIOs because there is a need to consider the fact that whether the entire system should be dispensed with, permitting the dual citizenship. It this argument focuses on the dual

2 3

TANWEER FAZAL, NATION-STATE AND MINORITY RIGHTS IN INDIA 205-06 (1ST ed. 2014). Ari. L Goddard, Fate of The Citizenship Amendment Bill, Economic Times, Jan. 07, 2019.

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citizenship, and then it will surely be harnessing the goodwill among the Indian diaspora, thereby facilitating the considerable increase in4 :-

Volitionsal work

altruistic alms of India.

Hunch, Trade, Sojorn Therefore chattels of the citizenship of the country will manifestly impels to the shunning of the need for the specific registration or providing the work permits, thereby entailing the full protection against expulsion & simultaneously providing the access to the public employme nt & decreasing the administrative difficulties. Consequently this amendment has scraped the fate of the Northeastern states. Moreover this bill has even echoed the 1962 Indo-China war & has led to the unjust incarceration. It has made an embodiment to the concern of the deepest prejudices as this amendment law is passed to incarcerate the freshly corded relations hip between India & China. Those who are illegally made to fall into the category of D-Voters by the advent of this bill are prime-facie placed at inferiority and on the other hand get the oppression from the society as compared to those who are decaled to be the genuine citizens by this amendment. 5 There is always bigotry against those who are suddenly declared to be the D-Voters in certain cases. A trunk full of laws has been framed for the protection of the interest of the genuine class with in a night, but no single law has been made in support of the unconsidered class of immigra nts and thereby making them more prone to be victims of the society. There is various social, gender’s specific movement’s lead by accorded by this abundantly & illegally left behind class who has worked till the last drop of his sweat to pave the tenor for the development of the nation as far as doable. Furthermore, harassment isn’t just mental but is also emotional as well. Because this class of immigrants has considered this pious land belongs equally to them as well.

4 VivanEyben,

The Backdoor Push for the Citizenship Amendment Bill,( Dec. 26, 2018 13:32:04 GMT) https://www.newsclick.in. 5 SANJAYKUMAR & PARVEEN KUMAR, MEASURING VOTING RIGHTS IN INDIA, 49-55 (1st ed. 2013).

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MIFFNESS OF ASSAM This recent Amendment in the Citizenship bill, 2016 has lead the people of the northeastern states to come on the roads to fight for their rights, to raise their voice so as to save the land from which most of them has earned the bread & butter for generations after generations. It’s the moment after when BJP had led to the Non-Democratic Alliance which has ultimate ly allowed the illegal migrants from certain minority communities in Afghanistan, Bangladesh & Pakistan eligible for Indian Citizenship. Evidently this Citizenship bill is not setting up in coordination with most of the northeastern communities, particularly it is violating the Assam Accord of 1985, according to which all those illegal migrants who had entered Assam from Bangladesh after March 25, 1971, are as per this new proposed amendment bill required to be deported to their parent countries. But simultaneously this bill sets out very different terms which in reality have forced the majority of the northeastern to come out their shelters to raise their voices in search of the new shade for their survival on a whole. This amendment has hampered the ongoing NRC- updating process on passing of the bill ultimately. Assam is worst affected state because of the reason that it already facing the illegal advent of large number of Hindus from Bangladesh in the past several decades, most likely to seek shelter their on permanent basis, which is in the process of causing the further damage to the state’s demography & thereby reducing the number of Assamese & other indigenous communities into a minority.6 This bill is endangering the language as well as the culture of the Assam & ultimately changing the demography of the state once for all. The state government has condemned its support as its support will render the credibility of the Assam Accorded meaningless & will directly affect the identity of the state dwellers along with the other indigenous communities of the state on a whole. It is also crucial to realize that the secular country India doesn’t have the adequate resources to absorb anyone & everyone who crosses the border. It is to be taken into consideration that the demography of the Indian Territory is the large one. If one goes as per the population wise too, India secures second position.

6

Ravish Kumar, The Free voice on Democracy, Culture & the Nation, 97 (2018).

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Therefore one needs to think & plan wisely before opening the borders to every single refugee on the humanitarian grounds & providing each one of them permanent citizenship to them are two very different things. DOCILITY IN THE REGISTERATION PROCESS OF OTHER NATIONS In a recent survey of 2017 by the Economic Times- 7

Allow people to register to their government

Efficient Implementation process.

Let their citizens to rank the proposed legislation.

The allowing them to vote for any new legislation.

Automatically register the people to vote.

According to above quoted mechanism, it has been evident that it is due to the flexibility in the registration process of the developed countries like USA, majority of the genuine citizens & nationals have been able to secure the rights rather to form the minority on the advent of the other national’s belongings to the other nation. It is a very serious issue and maneuver to be taken to swept off one’s feet this. Indian society does not believe this slant because of their venereal axiom that they don’t have enough resources as the other developed nations has. It is only in the implementation process where the Indian Civilization is lagging behind in the rat race of the development of the Nations. VEHEMENCE WHACK BY PIVOTAL GOVERNMENT It seems like with the advent of this amendment in The Citizenship Bill, BJP is trying to strengthen its vote bank, playing the shear politics behind the veil of this amendment bill & on a whole is destroying the indigenous culture and language of the northeastern states. 8

7 D.Majumdar, 8

Survey of National Registration Process, The Economic Times, 9 (11/07/2017). Poornima Joshi, BJP to help B’desh immigrant Hindus, The Hindu, Jan. 07, 2019.

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Particularly in Assam migrants from Bangladesh are in continues process of settling in Assam. If such settlement is continued, then the native population of the Assam will be overwhelmed by these migrants thereby impeding the credibility of the nation, once the plausibility is destroyed the society will become vulnerable to the illegal persecution hampering the social consistency of every discrete. Particularly on July 15, 2016, it was the BJP which had introduced this said Citizens hip Amendment Bill. It was under the reign of Modi government, during its 2014 Lok Sabha campaign, BJP had promised to amend the Act to make a way for legalizing minorities from neighboring countries into India. Clearly this was nothing but the beginning of sowing of the seeds of the votes of the minority at large & reaps the same at the advent of suitable time, so it is nothing but a cunning formula to strengthen its vote bank. So evidently BJP has targeted Assam for the same as with the formation Citizens hip Amendment Bill Act, 2018, a lot of people from Bangladesh will come & settle & in addition to this it will make those who had already migrated after March 24, 1971 citizens of India. So the main issue is that whenever this Act is amended it was worsen the situation of Assam at different times only, not whole of India, not even for other parts of India, not for anyone else but for Assam. This will ultimately hurt the spirit of Assam Accorded. The current governme nt hadn’t even paid any heed to the continuous requests made by various student unions for deportation of those who had entered into Assam after March 24, 1971 but instead of that the government had decided to provide them the citizenship. WALLOP ALOFT THE REALM The burning fact of today’s scenario is that if India being a multifarious country wants to hold the fort of secularism then citizenship is not the groove to go. Outwardly the citizenship bill subsumes the certain lines of rules down the lines of religion, as the same is not unknown in India. Synchronically this new bill has however made this enunciated

lucid. Since

independence, the immigration laws in India have been the enkindled subjects. In a self-ruling country like India it has become very arduous for the country to bespeak its citizens from the books of nationality and moving their accounts into the books of the non-citizens of the Nation. This problem has further bifurcated into two heads:-

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1. The movement of masses during the reign of Indo-Pak partition on the basis of the religion, and 2. The isochronous incursion of immigrants & refugees owing to the subdued pliancy in the neighboring countries. So these citizenship laws are imperious to be sheer peculiar at times whenever such movements has occurred and each of such squeaks are squeezed to their last drop by our law makers to extract best out of it. Similar is the case in today’s eon wherein this Amendment Bill has proved to be fatal for one community on one hand & on the other hand this same bill has brought fortune to the shattered lives of the minority community. WAY FORWARD The equality of every citizen is to be sailed in the same boat. Every individual forms the core requirements for the effective functioning of the civilized nation. Be it any organization or the individual, everyone preserves the right to equality be it, the personal, sensitive & commercia l sense as well as the interests of the discrete. There are no dedicated laws as to the protection of interest of every community or providing the equality to each one of them as a whole against the blowing wins to crime in India.

The legal challenge includes:-

Lack of proper surveillance system

Lack of laws for the protection of laws against minority

Lack of security legislation model for securing the interests

The legal challenge includes:1. Lack of proper surveillance system, 2. Lack of laws for the protection of laws against minority, 3. Lack of security legislation model for securing the interests of every member of the community at large, 106

Thereby making it has become extremely difficult to ensure the protection of equality of the weaker clan of the society at large. Though digitalization has paved the pace of the functio ning of every sector in the modern scenario & is a rapidly spreading phenomenon in the world but no endeavors has been made for ensuring the interests of one who has been crushed by the term D-Voters within span of the one night only who are the victims of the crimes from the hands of the illegal persecutions. Judicial advancements have always been bait for increasing crimina l applications against the innocents burdened by the advanced & illegal precautions. Many new possibilities have opened up for the prepetition of discriminating on the inherited rights of the kinfolks of the same clan. The illusion so created by this dark web of illegal persecutions in the world to the informing the civilians about the laws favoring the one stronger clan over the weaker section has incepted all over the world. The three organs combined efforts have been tackling the problems by introduction various laws. Definitive steps are required to be undertaken by the government of India so that it lives up to the objective of improving the conditions of the weaker sections in India but no concern has been shown by the governme nts to make an step of hospitality towards the victimized clan. So in the light of above, there is a dire need of plugging the loopholes in the best interest of the country.

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NATIONAL REGISTER OF CITIZENS: LEGAL FRAMEWORK AND IMPLEMENTATION -

Moiz and Akanksha Singh1

National Register of Citizens (NRC) is the register which compiles the name of all the legitimate Indian Citizens of Assam basically the first register was prepared in 1951. The updation of the list took place basically on the basis of the names of the persons or their descendants which appears in 1951 NRC or 1971 electoral rolls up to the midnight of 24th March 1971. In 1985 it brought an end to a six-year-long agitation where the Assam accord was signed between the leaders of AASU-AAGSP and the Government of India. In this in was clearly established that whoever entered Assam between 1951 and 1961 would be given full citizenship while those who entered after 25th March 1971 will be deported.

In this research paper we aim to analyze the impact of the National Register of Citizens over the people of Assam. Why the government has come up with the list and how it is going to affect the people of Assam? And as the list gets compiled and there are names of the people who don’t find mention in the list after going to the tribunal what will be the outcome and how the Citizenship Amendme nt Bill 2019 will create a havoc after the due process. And how the left over people who don’t have their names in the list and who can’t exercise their rights under the bill and even after complying with the rules and regulation, they will be declared as illegal migrants, will they be deported ? But we don’t stand firm with any of the deportation treaty with the countries surrounding Assam. INTRODUCTION The citizenship could be offered in two ways that is ‘Jus Solis’ and ‘Jus Sanguinis’ meaning place of the birth and relation with blood ties respectively. While the Article 5 of the Indian Constitution talks about who will be known as the citizen of the country, a person born within the territory, he has the domicile within the territory, or his either parents were born within the territory of India, or he is resident before the commencement of the constitution for not less than 5 years will be a citizen.

1

The Authors are students at Aligarh Muslim University.

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And the Article 6 of the Indian Constitution talks about the right of citizenship to the people who have migrated from Pakistan to India, they will have the right when his parents or grandparents either of them was born in India as per the Government of India Act ,1935, the person migrated before 19th July 1948 has become ordinary resident in the country, or people who migrated after 19th July 1948 have been registered by the officer appointed by the Government in the manner prescribed, if a person ceases to have lived around 6 months in the country before he gives the application would have the right to citizenship. In the Treaty of Yandabo in the year 1826 Burma gave away Assam it would aim to exclude the illegal immigrants to protect the culture of the people of Assam. And when the East Pakistan got separated from the West Pakistan and became Bangladesh where in 1971 the partition created a lot of problems as it was based on the communal lines. There was a lot of moveme nt from the other side of border in search of livelihood. While in 1985, Rajiv Gandhi, through the Assam accord ensured people of Assam that the government will protect their cultura l, tradition. Now in 1951 during the Census the first National Register of Citizens was made to keep note of the illegal immigrants it was carried under guidance of the ministry of external affairs and while the facilities of passport and visa started this procedure suffered a huge setback during the census of 1961 which majorly pointed out that there have been around 2 lakh people who have illegally entered the state. To identify the illegal immigrants in the year 1965 as per the data provided in the National Register of Citizens there were National Identity Cards issued on this basis to distinguis h between a citizen and an illegal immigrant. Government of Assam in 1966 dropped the idea to do so as they concluded and found it to be impracticable while this project might have eased the cause. WHAT IS THE RATIONALE BEHIND THE MOVE? Basically the rationale behind the move to update NRC was to be aimed to detect the illega l immigrants so as to protect the social cultural and economic aspect of the state. Assam Accord. In 1985 it brought an end to a six-year-long agitation where the Assam accord was signed between the leaders of AASU-AAGSP and the Government of India. People who came after 24th March

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1971 must be deported while who came in between 1961-1971 must be deprived of the voting rights and can be treated as the citizen and can enjoy citizenship rights, in 1985 there took place an agreement between the centre, government of Assam and All Assam Students’ Union (AASU) was included further in which it was decided that the NRC must be updated on the basis of NRC1951 and the electoral rolls of 1971 this came to be known as Assam Accord. Wherein 2009 Assam public works filed a petition while in 2013,SC, headed by the Bench of Justice Ranjan Gogoi and Justice Rohintan Fali Nariman, asked both the central and state and government to complete the NRC with the Citizenship Act 1955. The SC wants it to be implemented readily so as to accomplish the task and SC would be monitoring the situatio n. This marks the beginning of the gigantic task of the identification of illegal migrants Pilot Project Also, a Pilot Project took place on 7th June 2010 which was attempted to play a vital role in the updation of the National Register of Citizens but the step could not harness the recognization of the immigrants and it turned into a brutal action and it came to an end as police killed 4 people such became the faith of it, after this it was considered to be an impossible task. Last Step On 17th December 2014 SC fixed the date to update NRC then 30th July 2018 the date was decided so as the to complete the final draft of the NRC. POSSIBLE CHALLENGES There are a lot of challenges regarding the NRC and the upcoming Citizenship Amendme nt Bill will create a lot of problems regarding the issue. Conflict with the Citizenship Amendment Bill,2016 The Citizenship amendment Bill 2016 only talks about providing the citizenship to Banglades hi Hindus who entered illegally after 1971. And there might be the case that certain names of Hindu Bangladeshi might not appear in the list after the completion of NRC so now will the NRC list prevail? Basically, there should be illegitimate exclusion of any person it should not be discrimina ted on the basis of religion as this would make a negative impact over the country’s decision. And many politicians talk about that this might lead to social unrest and communal tensions among

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Hindus and Muslims even in the neighbouring states but it is not happening like that this just to provide the fuel to the fire. Earlier the citizenship which was acquired by the process of naturalization a person had to stay here for 11years but now if the bill gets the green light the duration would drop to 6 years. Illegal immigrants will get a chance to become a citizen and it is basically for Hindus, Christians, Buddhists, Sikhs, Jains, Parsi’s the argument is that the neighbouring countries like Pakistan, Afghanistan and Bangladesh here minorities face a lot of atrocities so there is no other country for them but on the other hand Ahmadiyya Muslims which are in minority and face a lot of difficulty in Pakistan there is no mention for them. Imagine if a person’s house has been burned in a fire what would you do to help him you would provide him with shelter in your home or help him making his new home but you would not make him the permanent resident of your home similarly in this immigration and providing citizenship to the Hindus there are 1.7 crore Hindus in Bangladesh. The people of Assam stand clear as they don’t want immigration no matter; he is a Hindu/ Muslim. This would disrupt the social order of the state. Lately the bill of the citizens hip amendment has been passed in Lok Sabha and the people of Assam are not in favour of it and there have been protest around 200 Assam organizatio n and few of them from the ruling party are leading the protest. POLITICAL BENEFIT While during the Campaign of 2014 Lok Sabha Elections, Narendra Modi said that he would make illegal Bangladeshi pack their bags out of the eastern states during the speech. But now if we look at citizen amendment Bill 2016 this just changes the view of how we look at the illegal immigrants because the bill only provides the citizenship specifically to a [articular group of belonging to a particular religion. All sorts of politics have been done on this where Amit Shah claiming that the Hindu Bangladeshi should not worry about anything they would be held secured and protected. While Mamta Banerjee quiet years ago asked for a law that a person who lived for 5 years should become a citizen and she even went on adding that there would be communal tensions down the line and this might lead to a civil war. The Citizenship Amendment Bill 2019 which has been passed lately by the Lok Sabha contradicts Assam accord of 1985.

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CASES AND THEIR INFLUENCE Sarbananda Sonowal Case In the case of SarbanandaSonowal (Chief Minister of Assam) there was a petition in 2005, a three-judge Bench remarked that the IMDT Act was ultra vires with the Foreigners’ Act, 1946 and was struck down since it applied only to Assam it even at variance with the whole of the country. While the Nehru-Liaquat Pact paved way for the Eastern Pakistan date as 1950 and 19th July1948 is the cut-off date for Western Pakistan. The law cannot be held unconstitutio na l as it was less effective than previous. Sonowal judgment completely challenged the tribunal which was compelling that it would be responsible to look after as to who will be illegal immigrant and RC Lahoti argued that why different law for Assam why is it not same with the whole country and this is in violation with Article 14 in my opinion. Basically, intelligible differentia should be the basis of law of Assam could get separate dispensation. Secondly rationale object is that Indian citizen should not be harassed under this practice. This judgment wasn’t enough while in 2014 Justice Nariman judgment has discussed a little bit about RC Lahoti and expressed that the National Register of Citizens should be completed until 2016 which changed the date to 2018. Assam Shang Militia Mahasang Case Until or unless Constitution bench doesn’t give all the answers to the 13 questions raised in the case them the whole practice of the NRC is under question if the constitutional holds the section 6A unconstitutional

then the whole exercise would come of no use first the stress

should be laid on 6A There is a demand that there should be a unified rule for the whole of the country while when the section 6A was heard at full length the court accepted the petition to challenge the constitutionality and there were around 13 question raised in 2014, some of them are as follows , Is Section 6A is constitutional when it has a different cutoff date for Assam from the rest of the country? Whether Section 6A violates the right to life of people of Assam under Article 21 whose culture and life’s have been adversely affected by invasion illega l migrants from Bangladesh. Whether Section 6A violates the right to equality? Whether Section 6A has infringed the political rights of citizens in Assam? and whether Section 6A violates rule of law? DOCUMENTS REQUIRED

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List A Documents For inclusion of names of any person in updated NRC, the applicants must produce any one of the following List A documents issued before 24 March (midnight), 1971 where the name of self or ancestor appears (to prove residence in Assam up to 24 March (midnight), 1971): ·

1951 NRC

·

Electoral Roll(s) up to 24 March (midnight), 1971

·

Land & Tenancy Records

·

Citizenship Certificate

·

Permanent Residential Certificate

·

Refugee Registration Certificate

·

Passport

·

LIC

·

Any Govt. issued License/Certificate

·

Govt. Service/ Employment Certificate

·

Bank/Post Office Accounts

·

Birth Certificate

·

Board/University Educational Certificate

·

Court Records/Processes

Further, the following two documents are also accepted as supporting documents if accompanied by any one of the documents listed above: · Circle Officer/GP Secretary Certificate in respect of married women migrating after marriage (can be of any year before or after 24 March (midnight), 1971). · Ration Card issued up to the midnight of 24 March 1971 can be adduced as supporting documents.2 Now if we analyze the LIST A we will find that there is a lot of problem relating to the above mentioned credentials as how many people we find having citizenship certificate, permanent

2

https://en.wikipedia.org/wiki/National_Register_of_Cit izens_of_India#Publication_of_Legacy_Data

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residence certificate, the people usually don’t have passport it is difficult for poor people to get such documents while a refugee certificate when people move from a country it is diffic ult from them to think about getting a certificate further LIC policies usually rich people use to avoid tax, government issued Driving License every licenses if we search and find there are a lot of people who don’t have it, Post Office account is it really needed at this time? How many peoples have it? Land tenancy records, in India people don’t give a view about all these stuffs, and how many peoples are having their education certificate the University board certificate or the court certificate of the cases this makes me question the requirements. List B Documents If any of the documents of List A is not of the applicant himself/herself but that of an ancestor, namely, father or mother or grandfather or grandmother or great grandfather or great grandmother (and so on) the applicant then have to submit List B documents to establish relationship with such ancestor, i.e., father or mother or grandfather or grandmother or great grandfather or great grandmother etc. whose name appears in List A. Such documents shall have to be legally acceptable document which clearly proves such relationship. The applicants must produce any one of the following List B to establish the linkage: .

Birth Certificate

.

Land document

.

Board/University Certificate

.

Bank/LIC/Post Office records

.

Circle Officer/GP Secretary Certificate in case of married women

.

Electoral Roll

.

Ration Card

.

Any other legally acceptable document3

CONCLUSION The point of people of Assam over the practice of NRC is this that want their civilization and culture to be safeguarded against any of the illegal immigrants while they rebel against the Citizenship Amendment Bill 2019 where the bill has been passed in Lok Sabha people of 3

https://en.wikipedia.org/wiki/National_Register_of_Cit izens_of_India#Publication_of_Legacy_Data

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Assam want the illegal immigrant to be treated as illegal immigrant not to be classified on the basis of religion which this bill aims to do so this has alarmed the ruling party as the Northeast of India is currently unhappy with the Bill as they don’t want any influence of the alien parties in their culture and life.

They form a simple argument that if a person would get the citizenship of India and he starts living in India then who will pay for his livelihood, health and hygiene as it lacks opportunity and suffers from poverty. The entire exercise of NRC will become useless if the Constitutional bench holds the Section 6A of the Citizenship Act unconstitutional the 13 questions raised are supposed to be answered by the Constitutional Bench for the practice to be Constitutional. And after who don’t get their names in the list once the list has been completed, they can challenge it and can take this onto the tribunal the foreign tribunal and further even if their judgment could not satisfy the petitioner, they can further challenge it in the Hon’ble High Court and Hon’ble Supreme Court and approximately this might take around 6-8 years for this practice to be completed. If suppose we are to deport the people back to their respective country’s so we don’t stand firm with any of the deportation treaty and for the illega l immigrants from Bangladesh we are not even having any deportation treaty with them

Basically the government wanted to play good amount of politics in it but this roll of dice does not seems to favor them they were thinking this would help them to just strengthen their vote banks which would be increased by the addition of the immigrants but this went against the will of the people of Assam the people of Assam want to preserve their culture, tradition a linguistic identity it doesn’t bother to them whether the person who is an immigrant is a Muslim or a Hindu. The Citizenship Amendment Bill of 2019 which has been passed lately by the Lok Sabha is beyond the Secular Character of the constitution of India and the final list is yet to arrive in the first list 40 Lakh people didn’t find mention in the list it is yet to be seen how the governme nt is going to deal with and what they would do if a particular person wont finds its name in the list, notably the former presidents family didn’t finds it place in the list.

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Hence the people of Assam want to fight for their culture and linguistic identity. “Being a refugee is a circumstance, it’s not a lifestyle. It’s not a choice,” -Gomez Lopez, (a refugee from Mexico who arrived in Canada via Blaine, Wash., in 2012)

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NATIONAL REGISTER OF CITIZENS: LEGAL FRAMEWORK AND IMPLEMENTATION -

Monika

- CHAPTER I- UNANSWERED AND UNACKNOWLEDGED QUESTIONS FIND ANSWERS IN THE PAGES OF THE HISTORY- TRACING THE HISTORY OF THE ASSAM CRISIS

INTRODUCTION 19th Century Economic Opportunities turned into 21 st Assam Citizenship Crisis In the 19th and 20th Century, the demographic contours of Assam underwent drastic changes due to sliding of power in the hands of the British administrators and opening of new economic avenues like growth of the tea plantation industry, building of railways, discovery of coal and oil to name a few. Assam started witnessing influx of migration form rest of the British India because started pouring in from different regions in search of better jobs and life style. 1 Legal Instruments Adopted to counter the ‘Soon to be Problem of Illegal Infiltrates’ 2 For the first time in 1950, the Government of India retaliated to the problem of migrants by passing an act of the parliament called the Immigration (Expulsion) Act 1950 which empowered the Central or State governments to order removal of those people from Assam who were ordinarily residing in some place outside India. Further, the Nehru- Liaquat Agreement was signed to ensure that the right over immovable property of those who fled Assam to survive communal violence of 1950 remains undisturbed by anyone acquiring such property.3 In 1951, the Census of India and National Register of Citizens (NRC) were prepared. The NRC contained detailed information about (i) each and every house and holding in each and every village; and (ii) each and every individual present in such dwellings. Several attributes of an individual like name of the father or the husband, sex, nationality, occupation etc. were recorded in the register.

 The Author is

a student at UILS,Chandigarh University, Gharuan, Punjab Paper on Foreigners’ Issue, HOME & POLIT ICAL DEPARTMENT , GOVERNMENT OF A SSAM (October 20, 2012)https://assam.gov.in/web/home-and-political-department/white-paper1 1 White

2 Id.

at 6- 12

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The Foreigners Act of 1946 is one of the major legal instruments which govern the gray and complicated area of ‘Foreigners’ in India. The Pakistani nationals were brought under the ambit of this act when the definition a ‘foreigner’ was amended to extended it to include those who are non-citizens of India. As per the 1961 Census, over a span of a decade, 220600 infiltra tes were depicted in Assam. This lead to the Police taking up the task of (i) detection; and (ii) deportation of such infiltrates. A series of programs and schemes namely, issuance of ID cards to citizens, prevention of infiltration in India of Pakistani infiltrates (PIP), establishment of Foreigners Tribunals by way of Foreigners (Tribunal) Order 1964, the 6-year long Assam Agitation and subsequent signing of the Assam Accord on 15 th August, 1984. Assam Accord; Purpose, Contents, Implementation and the NRC4 In 1979, when elections to the Mangaldai Lok Sabha Constituency were conducted, names of ‘persons with suspected nationalities’ were included in the electoral roll. Owing to this, a strike was called upon by the All Assam Students Union (AASU) with the demand to (i) detect; (ii) disenfranchise; and (iii) deport these foreign nationals. This strike culminated into a 6- year long agitation which leased a furry of violent acts including the Nellie Massacre (1893).

5

This matter figured in the central discourse when ASSU write a letter to the then PM Indira Gandhi on 2nd February, 1980, putting forth their demands and proposing solution. During the span of 5 years from 1980- 85, 32 rounds of formal and informal discussions and deliberatio ns took place and finally reaped into the present day Assam Accord. The Assam Accord is a Memorandum of Settlement which was signed on the 15 th August, 1985 between the All Assam Students Union (AASU), All Assam Gana Sangram Parished (AAGSP) and Central Government on the Foreign National Issue. The Accord unfolded into the following three spheres; the foreigners’ issue, issues regarding safeguards and development and other issues comprising; issuance of Indian Citizens hip Certificates (ICC), sealing international borders, setting up of check posts at land and riverine routes, maintaining death and birth register strictly, clearing a belt of land area along the border for easier detection of infiltrates.

4 Assam

Accord, GOVERNMENT OF A SSAM (August 15, 1985)https://assam.gov.in/documents/1631171/0/Annexure_10.pdf?version=1.0 5 Supra note

1 at 11

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As far as the foreigners issue is concerned, it was agreed that in order to detect, disenfranchise and deport immigrants, they were divided into three categories. January 1st 1966 is the base date for unfolding this process. The three categories are as follows; (i) those who came to Assam prior to January 1st , 1966 were to be ‘regularized’ and have full rights of a citizen; (ii) those who came to Assam between 1 January, 1966 and 24th March, 1971 (inclusive) were to be ‘disenfranchised’ that is, their names were to be removed from the electoral rolls and they were to register themselves with the Registration Authority and on completion of 10 years from such date of registration, their names were to be again added in the electoral roll; while (iii) those who came to Assam on or after 25th March, 1971, will be deported back to their home country. The Accord also voiced the concern of Assamese to preserve their cultural identity and ensure economic development. Specific demands about relaxing upper age limit for governme nt employment opportunities were also made. ‘Explicit’ demand for updating NRC was not given in the Assam Accord.

CHAPTER 2- NATIONAL REGISTER OF CITIZENS (NRC); LEGAL FRAMEWORK AND IMPLEMENTATION During the course of the discussion between the AASU and the Government, the former submitted to the latter in January 1980 and 1990, the first memorandum demanding ‘update of NRC’ and modalities to bring into effect such update. However, no concrete step was taken in the direction until 2005 when on 5th May a tripartite agreement was reached between the then Hon’ble Prime Minister Dr. Manmohan Singh, Chief Minister of Assam and AASU. 6 Legal Framework To give legal standing to this agreement, The Citizenship (Registration of Citizens and Issue of National Cards) Rules, 2003 were amended in the year 2009 and section 4 A was inserted to lay down the framework for the implementation of the NRC Update process. This newly inserted section differentiates NRC update process for Assam from rest of the country, by providing that the process of enumeration of data shall not be undertaken by collecting data

6 Convention of NRC,

Citizenship and Dissent, NCHRO (September 23, 2018) http://nchro.org/wpcontent/uploads/2018/10/NCHRO-Convention-New-Delh i-NRC-Dissent-23.9.18-Paper1-A minul-Haque.pdf

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manually from each and every house hold, rather it will be done by way of inviting and receiving such applications from those who wish their names to be registered in the NRC. In August 2007 a ‘cabinet sub-committee’ chaired by Dr.Bhumidhar Barman was formed to examine the modalities for updating NRC and its recommendations were accepted by the State Cabinet and sent to the Government of India in June 2008. Based on the proposed modalities, a polite project was carried out in 2 circles namely BarpetaandCheay (Kamrup) District in June 2010. This project was soon stopped amidst protest launched by AASU against complexity in its structure. Again a new ‘cabinet sub-committee’ headed by Shree Prithvi Maji, framed simple modalities for the process of updating NRC in consultation with the stakeholders. The recommendation of this committee was accepted by the Centre and the State Government. The NRC process was to be conducted taking into consideration (i) NRC 1951; and (ii) electoral roll (before March 25th 1971).7 The issue of updating the NRC in particular and the Assam citizenship crisis in general were brought before the Hon’ble SC on various occasions by way of writ petitions. In case of SarbanandaSonowal v. Union of India &Anr (2005) the Illegal Migrants (Determination by Tribunals) Act, 1983 was held unconstitutional, in 2009 an NGO called the Assam Public Work approached the SC while on 17th December 2017 the SC passed an order in a batch of petitions in the case Assam SanmilitaMahasangha v Union of India to kick start the NRC process. After giving several deadlines for producing a draft NRC, the Registrar General of India and the NRC authorities released the first draft NRC on 31 st December, 2017 and the final draft was released on 30th July, 2018. Implementation8 The NRC in Assam is updated by calling in applications from people of Assam to be a part of the NRC process. The applicants produce certain documents corroborate their claims and in case their claims are not sustained, they are subjected to the proceedings of the Foreigners Tribunals and eventually depending upon the judgment or the opinion of the tribunal, they are either deported or given citizenship as the case may be. Eligibility to be a part of the updated NRC is ascertained by producing valid documents enumerated in List A and List B. List A contains such documents which are issued before 7 Supra note 8 Supra note

6 at 1 6 at 1- 6

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March 24, 1971 and which are issued either in the name of the applicant or his or her ancestors while List B contains those documents which are issued before the above stipulated date in the name of the ancestors of the applicant and which are furnished to establish relationship between the claimant and his or her ancestor. The following processes are carried during the process of inviting applications and their verification; Publication of Documents The NRC authorities have published documents like NRC 1951, Voter list of 1965, 1966, 1970 and 1971 in form of digital platforms like the ‘Legacy Data.’ Receipt of ApplicationsAs per a document of Indian International Centre, New Delhi, about 68 lac families comprising of 3.29 Crore applicants filed for inclusion of their names in the NRC. Process of Verification undertaken by the Officials; Legacy Data and the Family Tree A new device called the ‘Family Tree’ was introduced to have a check on the misuse of Legal data. It was not a part of the modalities initially proposed. It efficiently traces the connection of a claimant to his ancestors using the Legal Data platform. Panchayat Link Certificate; Cancellation and RestorationIn order to establish a married woman’s relation with her parents, a new document called the ‘Panchayat Link Certificate’ issue by the village Panchayat. These documents were termed as ‘supporting documents’ in the modalities proposed for NRC updating process. However, the Hon’ble Guwahati High Court passed an order in February, 2017 terming this document as ‘personal.’ This order was overturned by the Hon’ble Supreme Court who restored its legal validity subject to verification of its content.

9

CHAPTER 3- PROCEDURAL HURDLES IN NRCThe following are the procedural hurdles in the NRC which needs to be addressed; Problems with the verification using the ‘Family Tree’10 -

9 Supra note

6 at 3

10 Ibid

121

There are certain documents called the Weak Documents and their validity is ascertained by Family tree verification. But this process is also ploughed by certain inevitable problems like one legacy person’s name appears in various applications or lack of knowledge of a person about his ancestry which mandates manual verification of the family by NRC Officers who are not adequately trained. Ambiguity surrounding list of documents to be submitted for verification of Citizens hip Claim11 The documents which were required to corroborate the claims of citizens hip were surrounded by the air of ambiguity that once surrounded the entire issue of Aadhar. The general masses is confused as to which document has validity because the documents to be considered are undergoing revision process and the positions are clear between the judiciary and the executive. Instead of order of the SC and repetitive guidelines issued thereafter by the relevant authorities regarding legality of the Panchayat Link Certificate, the verifying officers were not considering it as valid documents and were insisting on producing an alternative form of document. This practice is sufficient to exclude significant number of genuine citizens (married women) out of the NRC. Owing to the illiteracy and non-familiarity with governmental work, the claimants often end up finding the ‘claim forms’ abstruse to comprehend. Further they often do not possess relevant document to prove their claim. Notice of Verification process not reached12 It was stated in the White Paper on Foreigners issue that many of the suspected foreigne rs worked as rickshaw driver or manual workers and they had no permanent settlement, therefore, notices of verification often ended up at their temporary addresses and rendering these applications unverified. Misuse of power of NRC OfficialsIn case a person’s application for inclusion of his name in the NRC is rejected, the process of re-claim is very cumbersome. The manner in which the grievances of such persons are handled is not satisfactory. Absurd and arbitrary replies such as technical glitches, necessity of resubmission of link document, declared foreigners (DF) and their relatives, doubtful Voters (D Voters), are given to their query.

11 Ibid 12 Supra note

6 at 4

122

Those applicants who are in the ‘hold category’ such as DF and their relatives, D Voters etc. cannot re-apply or re-claim for inclusion of their names in NRC during the pendency of their matters before the Foreigner Tribunal. In spite of giving repetitive extensions (31 st December 2018 being the latest) around 10 lac people have not been able to file fresh claims. How can the NRC process be carried out when the constitutional validity of 6A is still awaiting decision of the Constitutional bench of the Supreme Court-? 13 The constitutional Validity of Section 6 A of the Citizenship Act 1955 was challenged before the Hon’ble Supreme Court of India in the case Assam SanmilitaMahasangha v Union of India by way of a writ petition. The Apex court comprising of a 2 judge bench of Justice Ranjan Gogoi and Justice R F Nariman clubbed a batch of petitions in this matter. The Hon’ble bench took a rather contradictory stand by ordering completion of the NRC Updating process and simultaneously framing nine questions to be referred to a Constitutional bench for decision which has not come yet. Absence of Deportation Policy with Bangladesh14 The ‘detection’ and ‘deportation’ of ‘suspected’ and ‘declared’ foreigners is done by the Border Police Personnel. The foreigners are mostly detected by personal surveys. The Police Officia ls are also furnished with information by ‘internal sources’ about any suspected foreigner. The lists of the families are collected from the VDPs, the numbers of members in the family are checked and the moment any member’s name is not present on the list, he or she comes under scrutiny of the Police. Such persons are given opportunities to prove their citizenship by producing valid documents and an enquiry is started in event of failure of such documents to establish such claims. The documents which need to be produced are as follows; a. For those who came to Assam before January 1, 1966; the Voters list of 196, the NRC of 1951, refugee certificate, revenue record and school certificate before 1966; and b. Those who are not able to produce any of the above stated documents but produces documents which prove their entry into Assam on or before 24 th March, 1971;

13

Mohsin Alam Bhat, On The NRC, Even the Supreme Court is Helpless, THE W IRE (January 7, 2019 https://thewire.in/law/nrc-supreme-court-crisis 14 Supra note

1 at 19- 22

123

The matter is referred to the Superintendent of Police (SP) for approval sought to start an enquiry. After receiving the enquiry report, the SP sends the matter before the Tribunal in case the claim made in accordance are doubtful or if it is made as per point ‘b,’ an enquiry is conducted in the latter category on these suspected foreigners in the stream of 1966 to 1971, their names are taken out of the electoral roll for ten years and they are required to register themselves within 60 days, failing which leads to their deportation. The copy of the judgment of the Tribunal is sent to the SP. Those who are ‘declared foreigners’ after such judgment are kept into detention centres and handed over to the Border Security Force (BSF). The BSF sends the necessary details of such persons to their counter parts in Bangladesh and to the Ministr y of External Affairs. Their counter-part in turn submits the documents of such persons for verification and once such verification is done the person is deported or pushed back into his own country. The SC has been monitoring the process and is pushing the government to draft a deportation policy with Bangladesh but the demand of SC seems to have no effect on Government as it was reinstated by the Bangladeshi officials that the Indian Government has not raised the issues with them. Given this lenient outlook of the Indian Government towards having dialogues with the Bangladeshi government surrounding major, the Bangladeshi government has termed the issue as a “local matter under toned by ethnic outlook.” ‘D’ Voters 15 During revision of the electoral roll in 1997, the letter ‘D’ was marked against the names of some of the voters who were unable to furnish proof of their citizenship to the local verifica tio n officers (LVO). The report of these officers was considered by the Electoral registration Officer in whose hands laid the power to decide whether to refer the case to the tribunal through the SF. Depending upon the decision of the court the name of voters was either confirmed or removed from the electoral roll. Updating NRC is not Solution to the Gigantic Problem which includes deeper and gravest humanitarian crisis 16 -

15 Supra note

1 at 23

NRC will not Resolve Assam’s Humanitarian Crisis, THE W IRE (August 16, 2018) https://thewire.in/politics/nrc-final-draft-citizenship-assam-violence

16 MarkandeyKatju,

124

Section 3 of the Citizenship Act 1955 provides that an individual can acquire citizenship by birth. An amendment passed during the Rajiv Gandhi Government provided for any one born in India between January 2, 1950 and before July 1, 1987, to become a citizen of India by birth irrespective of the nationality of the parents while those born after July 1 st to become citize n only if at least one of the parents was an Indian citizen. Another amendment was introduced in the year 2003 whereby people taking birth in India afte r Dec 3, 2003 were given citizenship provided both of his parents were Indian Citizen or one parent was Indian citizen while the other was NOT an illegal immigrant. CHAPTER 4- CONTRADICTIONS BETWEEN THE CITIZENSHIP (AMENDMENT) BILL, 2016 AND THE NRC The Citizenship amendment bill 2016 seeks to make an amendment to the Citizenship act of 1955 by introducing provisions for granting citizenship to immigrants belonging to 6 religio ns from three nationalities namely Sikh, Hindus, Jain, Buddhists, Paresis and Christians from Bangladesh, Afghanistan and Pakistan respectively, thus isolating Muslim immigrants. This in itself is violates the provisions of the Indian Constitution. These immigrants must have been victims of religious persecution in the above mentioned countries and must have entered Assam on or before 31st December, 2014. Petitions against the Citizenship Amendment Bill17 In case this bill turns into an act of the parliament, it will lead to striking down of all the proceeding pending against the above stated illegal immigrants (if proven to be victims of religious persecution) and will grants them citizenship by the process of naturalization but here comes leverage, the time period of such naturalization is reduced from 11 years to 6 years. To complement this amendment, amendments were also introduced in the Passport (Entry in India) Rules 1950 by way of inserting Rule 4 (1) (ha). This rule exempted the immigrants who are victims of religious persecution from application of the Rule 3 which restrained entry into India of who do not own a valid passport or stays in India beyond the expiry of the valid travel document.

17 AbirPhukan,

Citizenship Bill; Legislative Chaos or Amnesia?,THE W IRE (January 12, 2019) https://thewire.in/rights/citizenship-bill-legislative-chaos-or-amnesia

125

This amendment bill has added more fuel to the fire and made this already chaotic matter into a complete havoc. It is not helping in solving the root problem of infilt ration of illega l immigrants and updating NRC without taking into consideration the agreed cut-off date of 25th March 1971 for deporting these infiltrators. Religious persecution- how to prove? On the one hand the government has taken a gigantic step by bringing in this amendment and on the other hand there is no reasonable framework to identify the ‘victims of religio us persecution.’ As per a reply to JPC, the government seemed rather ‘vague and internally naïve’ as it proposed to verify these infiltrate by relying information from the information given by the security agencies and supportive evidences available in form of print or electronic media. Thus, there is tremendous possibility of misuse of such process. CHAPTER 5- CONCLUSION The 19th Century quests of British for opening the doors of beautiful, peaceful and resource rich land of Assam to the rest of British India in search of new economic avenues, has taken a complete opposite turn. The huge influx of immigrants in Assam of infiltrates has created geopolitical- social- legal and cultural complexities. After more than 7 decades of violence in name of preserving cultural identity of Assam humanity is sacrificed. The concern of Assamese surrounding ‘economic burden’ of these immigrants is the chore of the problem. Anything in between are chaos and marathon resulting from political maneuvers and loud and fast pacing public and legal discourses. The whole process of NRC is plagued by massive legal- political- social- humanitarian and technical flows.

126

CITIZENSHIP IN ASSAM AND EXCLUSION: A STUDY OF THE WORKING OF THE FOREIGNER’S TRIBUNALS AND NATIONAL REGISTER OF CITIZENS (NRC) WITH REFERENCE TO THE CITIZENSHIP (AMENDMENT) BILL, 2016 -

Md Mubarak Ali

ABSTRACT Cross-border migration and the subject of citizenship are highly controversial issues in the State of Assam and the rest of North-East India. The issue of Bangladeshi migrants in India has become a major concern for policy making in recent years. Since partition the migratio n issue has been dominant in the politics of Assam but it was only in the late seventies that the movement against illegal migration gained vibrancy. During the period of Assam Movement (1979-1980) against illegal migration, ethnic and religious riots, demonstrations and general civil disorder resulted in as many as 5000 deaths and dislocation of 1 million people. After a series of violent activities, demonstrations, strikes, blockades, various rounds of talks with the government resulted in the signing of the Assam Accord on 15 August, 1985. In the name of identification of illegal migrants, Muslims and Bangla-speaking Hindus have been targeted. In 2016 the Government of India has introduced the Citizenship (Amendment) Bill and got passed in the Lok Sabha on January 8, 2019 to grant citizenship to non-Muslim migrants from Afghanistan, Pakistan and Bangladesh. In the meantime the process of updating the NRC is also in full swing. The paper will study the issue of ‘D-voters’ and examine the working of the Foreigner’s Tribunals. The paper will also highlight the provisions of the proposed Citizens hip (Amendment) Bill, 2016 and its impact on the process of updating the National Register of Citizens (NRC) process in which about 40 lakh names have been excluded in the final draft released on July 31, 2018. Key words: Bangladeshi, Hindus, Muslims, Citizenship, Foreigners, Illegal, Migrants, Exclusion.

 The Author is

a Research Scholar at Dept. of Political Science, Aligarh Muslim University

127

INTRODUCTION Citizenship refers to the status of an individual as a full and responsible member of a politica l community. In a democratic set-up like India, there exists a controversy in citizenship regarding who is entitled to be a citizen and who is not. In the electoral politics, where identity and votebank bank politics is vehemently practiced, citizenship is used as a tool of assimilation and exclusion, and minorities are often targeted in this context. In this context, the politics in the State of Assam comes to mind very first. Assam is a multi- lingual, multi-ethnic and multicultural state in India since ages. Since Independence, and even before, there was the controversy of language which developed into the controversy of citizenship on religious lines on the pretext of ‘Bangladeshi migrants’ with the passage of time. On July 19, 2016, Union Home Minister Rajnath Singh introduced the Citizens hip (Amendment) Bill, 2016 in the Lok Sabha with the provision of granting citizenship to the nonMuslim migrants/ refugees / asylum seekers from Afghanistan, Pakistan and Bangladesh. After introduction, the Bill ran into controversy and the Bill was sent to the Joint Parliamentar y Committee. The Committee under the chairmanship of Rajendra Aggarwal, tabled its report in the Lok Sabha on January 7, 2019 and the Bill was passed in the Lok Sabha on January 8, 2019. It is yet to be introduced in the Rajya Sabha at the time of writing this paper. Since the Bill is meant for the whole country but there has been sharp reactions in the politics of Assam. There have been several protests and bandhs since the introduction of the Bill. The Bill was supported in the Bengali-dominated Barak Valley but vehemently opposed in the Brahmaputra Valley. In the meantime the process of updating the National Register of Citizens (NRC), 1951 was also in full swing. In the final draft of the NRC, published on July 30, 2018, almost 40 lakh names were left out. Among those left are mostly Muslims and Bangla-speaking Hindus. The paper examines the provisions of the Citizenship (Amendment) Bill, 2016 and NRC process. It attempts to understand the implications of NRC on the working of Foreigner’s Tribunals (FTs) and the politics prevailing in Assam the light of Citizenship (Amendment) Bill. Qualitative and descriptive methods have been used in the study and is based on secondary sources like books, journals, magazine stories, newspaper reports, government reports, NGO reports, web portals etc.

THEORITICAL FRAMEWORK

128

There is no universal and precise definition of citizenship. The concept and meaning of citizenship have been interpreted differently in different regimes and reigns. Aristotle regarded citizenship as “privilege of ruling class” in the ancient and Greek and Roman state systems. The modern concept of citizenship has been derived from The French Revolution (1789) and the consequent Declaration of Rights of Man and Citizen. Rousseau in his “Social Contract” (1762) wrote that citizen is a free and autonomous person. He is entitled, according to Rousseau, to participate in all those decisions which are binding on all citizens. John Locke (1632-1704) regarded the idea of natural rights as the basis of citizenship. Locke argued that the ‘right to life, liberty, and property’ was the mainstay of natural rights T. H. Marshall in his “Citizenship and Social Class” (1950) observed that citizenship implies full membership of a community: those who possess this status are equal with respect of to the rights and duties associated with it Liberal Theory of Citizenship, which T.H. Marshall advocated, says that the idea of citizenship runs counter to the idea of class division of society. In India, citizenship is governed by the Citizenship Act, 1955 which have been amended in 1986, 1992, 2003 and 2005. The original Citizenship Act that gave citizenship on the princip le of ‘jus solis’ to everyone born in India which meant those who born in India are citizen of the country by the virtue of his birth. The 1986 amendment added the condition that to ones’ own birth in India, one could get citizenship only if either of one’s parent was an Indian citizen at that the time of birth. In another amendment in 2003, the law requires that in addition to the fact of birth either both the parents should be Indian citizen or one parent must be an Indian citizen and other should not be an illegal migrant. With these exclusionary amendments, the narrow principle of ‘jus sanguinis’ has become more important than the fact of ones birth on Indian soil. According to Faizan Mustafa, exclusion of outsiders or others is central to modern citizenship concept.

NATIONAL REGISTER OF CITIZENS (NRC) AND CITIZENSHIP POLITICS IN ASSAM Cross-border migration and the subject of citizenship are highly controversial issues in the State of Assam and the rest of North-East India. Since partition the migration issue has been dominant in the politics of Assam but it was only in the late seventies that the movement against illegal migration gained vibrancy. During the period of Assam Movement (1979-1980) against illegal migration, there were ethnic and religious riots like Nellei massacre in 1983, demonstrations and general civil disorder resulted in as many as 5000 deaths and dislocatio n of 1 million people. After a series of violent activities, demonstrations, strikes, blockades, 129

various rounds of talks with the government resulted in the signing of the Assam Accord on 15 August,

1985. The accord addressed the foreigner’s

issue, economic developme nt,

safeguarding the Assamese culture and the issue of citizenship certificates. The key elements of Assam Accord was detection of foreigner’s, deletion of their names and deportation and the updating the National Register of Citizens (NRC), 1951. For the purpose of detection and deletion of foreigners, the base date is January 1, 1966 and for deportation the base date is March 24, 1971. Foreigners who came to Assam between January 1, 1966 (inclusive) and March 24, 1971 to be detected in accordance with the provisions of the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1939. The National Register of Citizens (NRC), 1951 which is a unique phenomenon in Assam, was prepared under a directive of Ministry of Home Affairs during the census of India and included all those whose names were in the 1951 Census of India. It is a list of all the legal citizens of the state. It is governed by The Citizenship Act, 1955, and The Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003 (amended in 2009) and a 2010 order of the Ministry of Home Affairs, published in the Gazette of India. Initially the NRC registers were kept in the offices of DCs and SDOs, but later transferred to police in early 1960s for facilitating verification of infiltrants/illegal immigrants. The process of updating the NRC was initiated in 2005 by former Prime Minister, Manmohan Singh. The process has taken pace in the BJP-led NDA government since it took over in 2016. It is currently operating under the supervision of the Supreme Court. For updating the NRC, the documents that could be submitted as proof are: a)

Electoral Roll(s) up to March 24, 1971 (midnight);

b)

Land & Tenancy Records;

c)

Citizenship Certificate;

d)

Permanent Residential Certificate;

e)

Refugee Registration Certificate;

f)

Passport;

g)

LIC documents;

h)

Any government- issued license/Certificate;

i)

Service/ Employment Certificate;

j)

Bank/Post Office Accounts;

k)

Birth Certificate;

l)

Board/University Educational Certificate, and

130

m)

Court Records/Processes.

If a name in any of the above given documents is not of the applicant but that of his/her ancestors, namely,

father, grandfather or grandmother

or great grandfather or great

grandmother (and so on) of the applicant, other documents are required. In such cases, the applicant has to submit following mentioned documents to prove the relationship with such ancestors whose name appears in the above mentioned documents: a)

Birth Certificate

b)

Land document

c)

Board/University Certificate

d)

Bank/LIC/Post Office records

e)

Circle Officer/GP Secretary Certificate in case of married women

f)

Electoral Roll

g)

Ration Card, and

h)

Any other legally acceptable document

The complete draft of NRC was published after almost 33 years of signing of Assam Accord on July 30, 2018. Of 3,29,91,384 applicants included in the complete draft. 40,70,707 applicants have been declared ineligible for inclusion. Among those excluded, 37,59.630 names have been rejected and 2,48,077 have been kept on hold. The minorities and the marginalised, especially the poor and illiterate sections mostly Muslim community Bangla speaking Hindus who are not in possession of the prescribed documents to establish their citizenship credentials or are unaware of the intricacies of the NRC updating process, could not find a place in the final draft NRC list. According to official sources, about 27 lakh Muslim women having no other documentary proof except certificates issued by the local Panchayats do not appear in the list. According to Akram Hussein, president of HatishalaBhalukabari Gram Panchayat (GP) in Kamrup district, most of these women belong to extremely impoveris hed backward classes and have neither birth certificates nor any other documents connecting them to their parents. He says, “Most of them never received any formal education, and so have no school documents, and were married off before the age of 18. As a result even their voter ID cards do not carry their parents’ name and address.” The Supreme Court allowed the gram panchayat certificate issued by the panchayat secretary as a valid document that could be submitted for the inclusion in the NRC, and most women have submitted only this as they had no other document.

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Out of 40,70,707, names not included, 2,48,077 people were kept on “hold”, which included people belonging to four categories: D- voters, descendants of D- voters, people whose cases are pending in Foreigners Tribunals (FTs) and descendants from these persons. “D” (doubtful) voter is a unique phenomenon found in the electoral rolls of Assam of 1997 during the revisio n of electoral rolls in the pursuance of instruction of the Election Commission of India dated January 5, 1998 .The letter ‘D’ was marked against the names of those electors who could not prove their Indian citizenship. “D” meant that the status of citizenship of the elector is disputed or doubtful. Among those marked with “D” are mostly Muslims and Bangla-speaking Hindus. Over 60 percent of them are married women. Since their names almost never appeared on land records, or family trees, or school enrolment lists, women are particularly vulnerable. S R Darapuri (former IG, UP Police) criticised the concept “D” voter. He put, “The concept of ‘DVoter’ is completely illegal and has no place in the Constitution. There can be citizens and noncitizens but not doubtful citizens”. The NRC exercise, can be argued, has worsened the already difficult situation for the D-voters who are under suspicion of not being Indian citizen. FOREIGNER’ TRIBUNALS AND EXCLUSION The Foreigners’ Tribunal (FTs) are quasi-judicial bodies meant to furnish opinion on the question as to whether a person is or is not a foreigner within the meaning of Foreigners’ Act, 1946. FTs were established in 1964, but gradually wound up between December 31, 1969 and March, 1973. It was revived in 1979. Over the years, 36 FTs came to be functional across the State. Since 2015, the number of FTs has been raised to 100 and the criteria for the selection of Member has also been relaxed. With the relaxed provision any practicing advocate who has completed 45 years of age as on May 1, 2015 and 10 years of legal practice can be eligible for the post in contrast to the earlier norm of only a serving or retired district judge could be appointed as an FT Member. According to a report in Indian Express, since 1964 the Foreigners’ Tribunal have identified an estimated 90,000 foreigners, but some of them are dead or “untraced” as per the government sources. Till April 2018, 899 people, who have been declared foreigners’ and ‘D-voters’, were held in detention camps. Also, 29,738 have been deported, but most of these had been convicted of crimes in Indian courts, and very few of them were among those declared foreigners by the tribunals. Of these deported between March 2013 and December 2017, only two had been declared foreigners by the tribunals.

Abhishek Saha of The Sunday Express (August 5, 2018) covered the working of FT2, Barpeta. In the report it is mentioned that in the absence of a government lawyer, the Member of Barpeta 132

FT2 is also acting as State lawyer. So the question arises, how a Member of FT who has to decide the case, is also State lawyer representing the views of executive? It can be argued, while discharging his duties as State lawyer and Member of FT, would he be doing justice with his responsibilities while representing diverging views as a public prosecutor and judge simultaneously? The report also states that this is the case in many of the 100 FTs across the State, even the as the burden of proof under the law in on those accused of being foreigners. In more than 30-odd years since the FTs came into existence, the report states, till December 2017, they have disposed of just 2.40 lakh case while a little 2.45 lakh cases were still pending with them. According to report, a lawyer who has cases at FT2, Barpeta, says that on an average 20-25 cases are at various stages lined up before FTs. If we consider the working of FTs, which is overworked and overcrowded, presided on an average by one Member each, it hard to imagine, how many years, will the FTs take to decide the mammoth cases of 40 lakh people excluded from National Register of Citizens. Abhijeet Choudhury, claimed to have been a lawyer in 400 cases at various FTs in Barpeta for eight years, says “any mistake, however slight in regarding the names and spellings, discrepancies in age between one document and another or an answer to a question that does not match submitted document, might led to a person having being declared as a foreigner ”. Another lawyer gave the example of a brother who came as a witness of his sister and was unable to say correctly the year she was married. She was declared a foreigner. According to the report, there is no systematic procedure for the D-voters to get notices from FTs. There are numerous instances of people marked ‘D’ in 1997 only getting notices in the past four years. S R Darapuri states that there are complaints that people are not being given a fair chance to defend and prove them as Indian citizen before the FTs. They are not being served notices properly just because it sent to their temporary addresses or the places that have been washed away or relocated because of massive erosion caused by river Brahmaputra every year but only exist official records. He further says, “In majority of cases, we found people declared foreigners ex-parte. And therefore, they end up languishing in jails in the name of detention camps. We also found that people were declared foreigners but they have not been provided with a copy of judgement so that they can challenge the verdict in superior courts.” The BJP Government in the State has been accused of putting pressure on the FTs to declare people as foreigners. Lawyer Abhijeet Choudhury says that of his first 300 cases, only one or two were declared foreigners. In last one year, he added that the number stands at 35 of 100 cases.

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CASES OF EXCLUSION Two men Ashraf Ali, 41 and Kismat Ali, 40 migrants from Bihar and Utter Pradesh respectively were sent to a detention camp in August 2015, by the Foreigners’ Tribunal, which declared them as illegal migrants from Bangladesh. Both were picked up by gun-toting policemen from their homes around midnight on August 11, 2015. They were first taken to the Dimakuchi police station and then to SP (Border)’s office in Udalgiri”. At the SP (B)’s office about 120 km from Guwahati, the men were told that their names had been marked as D-voters in the electoral rolls. Then the two were driven to Goalpara, about 310 km away and dumped into the detention section of the district jail, meant to accommodate illegal Banglades hi migrants awaiting deportation. On July 30, 2016 Gauhati High Court dismissed their petition. They then went to the Supreme Court, which called reports from the governments of Uttar Pradesh and Bihar. Based on the reports, the apex court ordered a CBI probe. Reports from UP and Bihar governments, and then by the CBI, all proved that Kismat and Ashraf were Indian citizens following which the Supreme Court on August 22, 2017 asked the Foreigners’ Tribuna l in Udalgiri to pass a reasoned orders. Accordingly, the Tribunal reopened the matter and passed separate orders for Kismat and Ashraf on October 30, declaring both as citizens of India, and ordering their release. On October 30, 2017 they finally returned home after having spent exactly two years, two months and 17 days at the camp. Another case is of a retired Junior Commissioned Officer (JCO) in the Indian Army, Md Azmal Haque, who served for 30 years. He got a notice from the Foreigners’ Tribunal of Kamrup district asking him to prove that he was a genuine citizen of India and had not illegally entered the country from Bangladesh after 1971. For Haque, this was not the first time that he has seen such a notice, or that it is only during the BJP regime that this was happened. He said, “My wife Mamtaj was served with such a notice in 2012when I was posted in Chandigarh. We had to rush to Assam and prove her citizenship. A few years ago, my elder brother’s wife too had gone through the same trauma and humiliation.” In Barpeta district, Amina Begum, 47 and her husband Shahzahan Qazi, who is a school teacher in teacher, have not found their names in the draft of NRC published on July 30. The names of their three children were out too. Amina and Shahzahan were marked as ‘D-voter’ in 1997 but they said, they received a notice from the Foreigners’ Tribunal only in 2016. In March 2017, they were declared Indian citizens. But this change in the status was not reflected in the latest electoral rolls and they had been kept out of the draft NRC too. Apart from the above, there are numerous cases of exclusion. It is argued that the poor and illiterate, mostly Muslims and Bangla-speaking Hindus bore the brunt of these excesses as they 134

have no resources to contest the case and challenge in High Court and Supreme Court. They have been forced live leave in acute distress and trauma. A large number of families lost their livelihoods while fighting their cases and are forced to sell their properties in order to bear the legal expenses. CITIZENSHIP (AMENDMENT) BILL, 2016 The Constitution deals with the citizenship from articles 5 to 11 under part II. The Constitutio n, however, did not intend to lay down a permanent or comprehensive law relating to citizens hip in India. It simply described the classes of persons who would be deemed to be the citizens of India at the time of commencement of the Constitution and left the entire law of citizen to be regulated by some future law made by Parliament. In exercise of this power, Parliament has enacted the Citizenship Act (57 of 1955), making elaborate provisions for the acquisition and termination of citizenship

subsequent to the commencement of the Constitution. The

Citizenship Act, 1955, has been amended in 1986, 1992, 2003, and 2005.

The Citizenship (Amendment) Bill, 2016 (bill no. 172 of 2016) was tabled in both the Houses of the Parliament on July 19, 2016, during the monsoon session. The bill has sought to insert the proviso in Section 2 of the Act in sub-section (1), after clause (b) as, “ Provided that persons belonging to minority communities, namely, Hindus, Sikh, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan, who have been exempted by the Central Government by or under clause (c) of sub-section (2) of Section 3 of the Passport (Entry to India) Act, 1920 or from the application of the provisions of the Foreigners Act, 1946 or any order made thereunder shall not be treated as illegal migrants for the purpose of this Act”. Section 2(1)(b) of the Citizenship Act, 1955, defines an “illegal migrant” as a foreigner who entered India (i) Without a valid passport or other prescribed travel documents, or (ii) With a valid passport or other prescribed travel documents but remains in India beyond the permitted period of time. This means that those who are non-Muslims from the said countries came to India without any valid travel documents or have stayed in India beyond the specified period of time shall not be treated as ‘illegal migrants’ and hence, cannot be deported. Another proviso to be inserted in clause (d) of the Third Schedule is as, “Provided that for the persons belonging to minority communities, namely, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan, the aggregate period of residence or service of a Government in India is required under this clause shall be read as ‘not less than six years’ in place of not less than ‘not less than eleven years’”. The bill proposes to reduce the 135

number of years from eleven to six required to live and obtain citizenship by naturalisa tio n non-Muslims. According to a report in Frontline (August 31, 2018), before the introduction of the Bill, the ruling NDA government at the centre issued two gazette notifications on September 7, 2015, the Foreigner’s (Amendment) Order, 2015and the Passport (Entry into India) Amendment rules, 2015, to exempt these six non-Muslim minority communities in Bangladesh “who were compelled to seek shelter in India due to religious persecution or fear of religious persecution and entered India up to December 31, 2014” and came “without valid travel document or with valid travel document but validity expired” from the application of Foreigners’ Act, 1946, and orders made thereunder in respect of stay in India without such documents or expiry of those documents and prohibition under Passport (Entry into India ) Rules. The ruling NDA government in the centre has also relaxed long-term visa norms for these communities. Pratap Bhanu Mehta while writing in the editorial piece in The Indian Express (May 23, 2018) declared the Bill clearly violates Article 14 of the Constitution. He further writes, “The direct exclusion of Muslims from being eligible from this pathway under any circumstances makes the Constitutional form and citizenship communal”. CONCLUSION After going through above discussions, it can be argued that the religion based approach of the ruling government for the determination of citizenship has cast a shadow over the measures for a permanent solution to the vexed foreigners’ issue in the State. When all the major politica l parties are focused on their electoral calculus, the NRC issue assumes more politica l significance. Over the last few years, K V Thomas writes, “the BJP was quite successful in Assam exploiting these demographic changes, especially in giving the linguistic and ethnic issues a communal colour. They are known to mainly concentrate on the indigenous Assamese and the Bengali Hindu vote bank. Since, there are a number of Bengali Hindus also in the 40 lakh, whose names have been excluded from the draft NRC.” By introducing the Citizens hip (Amendment) Bill, it is argued, the BJP has given message to them that you don’t need to worry we have the provisions to protect you. Mohan Dutta in an article in The Citizen (July 31, 2018) stated that without justice, the 40 lakh who are on the verge of being stateless are also victims of violence where lynching and murders are new normal. He further writes, “Stateless people are often the targets of a wide range of societal violence, often without access to juridica l structures and processes. Beyond questioning the techniques of marking citizens however, the very basis of the Assam Accord needs to be critically interrogated. The idea that citizens hip can be reproduced as a category to exclude and to legitimise violence needs to be examined. 136

The NRC as a framework, therefore, disproportionately targets poor minorities who have over generation formed the backbone of economy.” The political mainstreams must take the lead and prepare the ground so that that the regions geographical location becomes an advantage instead of stoking nativist sentiments.

REFERENCES “Assam’s Anxiety.” Frontline, Volume 35, Number 17, August 18-31, 2018, pp. 115–19. Assam

Accord

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Settlement.

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1985,

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https://assam.gov.in/documents/1631171/0/Annexure_10.pdf?version=1.0. Baruah, Sanjib. “Non-Citizens and History.” Frontline, Volume 35, Number 17, August 18-31, 2018, pp. 126–29. Basu, Durga Das. Intoduction to the Constitution of India. Lexis Nexis Butterworths Wadhwa, 2012. Dutta, Mohan. “The National Register of Citizens And The Politics of Exclusion and Hate.” The

Citizen,

July

31,

2018,

https://www.thecitizen.in/index.php/en/NewsDetail/index/4/14538/The-NationalRegister-of-Citizens-And-The-Politics-of-Exclusion-and--Hate. Gouba, O. P. An Introduction to Political Theory. Sixth, Macmillan Publishers India Ltd, 2013. Home & Political Department Covernment of Assam. White Paper on Foreigners ’ Issue. 2012. “Indian

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Delhi,

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http://epaper.indianexpress.com/1761913/Delhi/August-03,-2018#page/1/1. “Indian Express Delhi,

Tue, 31 Jul 18.” July 31, 2018, 2018, pp. 1, 8, 11, 12,

http://epaper.indianexpress.com/1757844/Delhi/July-31-2018#page/1/1. “Indian

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http://epaper.indianexpress.com/1767240/Delhi/August-07,-2018#page/14/1. “Indian

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http://epaper.indianexpress.com/1973198/Delhi/Januaray-09-2019#page/7/1. Mehta, Pratap Bhanu. “The Seething State.” Editorial Page, The Indian Express, May 23, 23 May 2018. “Millions in Limbo.” Frontline, Volume 35, Number 17, August 18-31, 2018, pp. 122–25. Mustafa, Faizan. “Assam List Is against Humanity- The New Indian Express.” New Indian Express,

August

01,

http://www.newindianexpress.com/opinions/2018/aug/01/assam- list-is-against137

2018,

humanity-1851521.html. “Office of the State Coordinator of National Registration (NRC), Assam.” Government of Assam, http://nrcassam.nic.in/admin-documents.html. Accessed 14 Aug. 2018. The Citizenship (Amendment) Bill, 2016. no. 172, 2016, pp. 1–4. The Citizenship Act, 1955.Pdf. “The Indian Express.” November 19, 19 Nov. 2017, p. 10. ---. Delhi, October 02, 2 Oct. 2017, p. 7. “Their next Stop.” The Sunday Express, August 5, 4 Aug. 2018, pp. 8–9. Thomas, K. V. “The Politics of Citizenship: The National Register for Citizens (NRC) in Assam.” The Hindu Centre for Politics and Public Policy, October 06, 2018, https://www.thehinducentre.com/the-arena/current-issues/article25142441.ece. United Against Hate. Fact Finding Report on Assam, Doubtful Citizenship, Distorted Rights. 2018.

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D- DOUBTFUL OR DEPRIVED? -

Nasima Sultana Choudhury

Several countries over the years are dealing with the issue of immigration. Illegal immigra tio n has taken the centre stage in the domestic as well as international politics. The state of Assam has been in bedlam since 1950s on the issue of illegal immigrant1 . This has manifested itself in a mass movement known as the Assam Movement or Assam Agitation2 (1979-1985). This movement, led by All Assam Students Union (AASU) and various others was started to impel the Government to identify and expatriate illegal immigrants from the land of Assam. The ‘immigrant alien’ was seen as disruptive for the ethno-space of Assam. The issue of illega l immigrants has led to bloodbath several times. Figures on immigrants in Assam, however, is a matter of intense political contestation with various sources stating varied figures. The issue gained significant political concern because of its implication for the electoral processes in Assam. The anxiety over immigrant figures raised suspicions on various electoral rolls but the wrath of anger and anxiety for the first time gave way to a prolonged movement, the Assam Movement around the issue of by-election in 1979 in Mangaldai parliamentary constitue nc y following the death of the sitting MP. The revision of the voters’ list for the by-election drew attention to the extraordinary upsurge in the number of voters since the previous election. This led to the boycott of elections until the names of people were removed who have illega lly slipped their names into voters list. In the year 1997, the Election Commission ordered intensive revision of Assam’s electoral rolls with qualifying date 01-01-1997. As per this order, house to house enumeration was carried on in the state of Assam. The draft was published on 24-07-1997. This simmered suspicions on the published voter list. To tackle to this, the letter ‘D’ was marked against the names of those people who failed to prove that they entered India before March 24, 1971. According to the

 The Author is

a Research Scholar at Jamia Millia Islamia. The Centre for Media and Democracy, in an article, “Illegal immigration US” dated August 10, 2008 stated: “Illegal immigration (also referred to unauthorized or undocumented immigrants) refers to the migration of people across national borders in a way that violated the immigration laws of the destined country.” 2 This movement spearheaded by All Assam Students Union (AASU) was started demanding the eviction of illegal immigrants. The movement started in the year 1979 and continued till 1985 with the signing of the Assam Accord. These years witnessed total breakdown of political stability, imposition of President’s rule, boycotts and trail of violence. 1

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Assam Accord3 , people who entered India after March 24, 1971 will not be considered as Indians and have to be deported to their place of origin. In other words, people who failed to furnish their citizenship credentials at the time of verification by the officers appointed for this purpose were marked as ‘D’. ‘D’ connotes that the citizenship status of the elector was doubtful/disputed. On January 5, 1998, the Election Commission barred all persons against whose names ‘D’ was marked in the electoral rolls from exercising their franchise and contesting elections. The earlier procedure required the commission to refer all ‘D’ cases to the tribunals under the IM(DT) {Illegal Migrants (Determination by Tribunal) Act} which were supposed to ascertain the credentials of the marked voters and submit reports. In 2005, in SarbanandaSonowal v. Union of India case the Supreme Court has struck down the IM(DT) Act. These cases from thereon have been referred to new tribunals, Foreigner Tribunals, set up under the Foreigners Act of 1946. However, many people who were absent during the revision of rolls or missed the process in some way or the other due to certain circumstances was also marked as ‘D’ voters, thereby depriving them of voting rights. There is no guarantee that the cases of ‘D’ voters will be settled immediately as thousands of cases are still stacked in the tribunal waiting to get clearance. THE SCAPE OF CONTESTATIONS:

a. Not established by law In 1997, the Election Commissioner ordered the officials to carry out intensive revision of electoral rolls in the state of Assam with qualifying date 01-01-1997. As per such order house to house enumeration was done in Assam. The people were required to furnish their documents and prove that they were the citizens of this country. Failing to do so, the people were stripped from all the rights and duties that a citizen of this country gets. From thereupon, the letter “D” was marked against the name of doubtful citizens. The category was used to create a group of

3

The Assam Accord is a Memorandum of Settlement (MoS) signed between representatives of the leaders of the Assam Movement and the Government of India on 15th August, 1985 marking an end of the Assam Movement. A package for the economic development of Assam, including a second oil refinery, a paper mill and an institute of technology, was also worked out. The central government also promised to provide ‘legislative and administrative safeguards to protect the cultural, social, and linguistic identity and heritage’ of the Assamese people. It also mentions that people who came to Assam on or after 25th March 1971 should be detected and deported to their country of origin.

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disenfranchised people were not recognised by any state.Our Constitution doesn’t speak of such a category as ‘D’ voter. The Election Commission introduced this category. The Indian constitution has not established the category of D voter. It lacks a legal backing and is ambiguous in nature. b. Only in Assam The category of D voter exists only in Assam. This category doesn’t exist in any other corner of the world. c. Detention camp and jail are ought to be separate In an exclusive interview with The Telegraph during his visit to Assam University Kabir, the 39th Chief Justice of India said, "There is a big difference between detention and arrest. The government can detain a person on mere suspicion. But they can't be kept with criminals or even under trials in jails. If the suspected foreigners are lodged with hardcore criminals in jails, it's a gross violation of human rights."(Bhattacharjee, 2015) Once a person has been declared as a “foreigner” they are to be deported by following certain procedures. Since this involves the Home Ministry and the External Affairs Ministr y, it takes time. Till that time, they are to be housed in detention centres. Although Assam has at present six detention camps, however these are functioning on a makeshift basis and that too inside jail premises.(Baneerjee, 2016) In Barak Valley, the Central Jail of Silchar has been used to house such people. Although the government of Assam, in a notification dated April 5, 2010, declared the central jail in Silchar as a detention camp for a temporary period. The process of converting the existing jail in Silchar into a detention camp for suspected foreigners under the Foreigners Act, 1946, continues even after seven years. The government has indulged in largescale violation of legal and human rights of such suspected foreigners by compelling them to share space with criminals, convicts and under trial prisoners. ‘D’ voters are not crimina ls or charged for any offense so they are not to be lodged in jail but rather in detention camps until their status is determined. d. Violation of Universal Declaration of Human Rights Inserting the letter ‘D’ in front a name robs a person of his/her nationality. He /she are derecognised as an Indian national. The person is barred from exercising his/her voting rights. This violated the Universal Declaration of Human Rights (UDHR) Article 15 Clause 2. 141

Article15. (1) Everyone has the right to a nationality. (2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.4 By disenfranchising ‘D’ voters, they are eliminated from political participation. In a way, their sense of identity is disrupted by categorising them in a ‘doubtful’ status. They are pushed into statelessness, with no state recognising them as their citizens. Many people have been declared so without any prior information or without giving them sufficient time to present their case. e.

Violation of Article 21 of the Indian Constitution

Many people are detained in jails after being declared as “foreigners”5 or a reference is made to the tribunal for the period of pendency of the trial which is indefinite in violations of Article 21 of the Constitution of India. Article 21 states that: “No person shall be deprived of his life and personal liberty except in accordance with procedure established by law.” Article 21 has been interpreted to guarantee rights including: rights to prisoners, the right to legal aid, the right to a speedy trail and the right to claim compensation for the violation of the rights in Article 21. Furthermore, the expression ‘procedure established by law’ in the article requires that there must be a valid law justifying an interference with a person’s life or personal liberty, and it is directed that the procedure provided by law must be strictly followed. The procedure of tagging names with D is nowhere established by law and arbitrarily making reference also contravenes due process principle. (Laskar, 2012) f. A trail of troubles Reports suggest that 80%-90% cases are forwarded without any basis or preliminary enquiry. The tribunal has travelled beyond power and provision. Most of the enquiry officers wear an attitude of negligence. There are cases where people had to languish in jails for an error in names and address of residence. One homemaker from Silchar had to face harassment because her name was misspelt. 4

The Universal Declaration of Human Rights is a document adopted by United Nations General Assembly on 10th December, 1948. The document consists of 30 articles which are considered to be bas ic rights which every human being is entitled to. 5 According to the definitions stated in the Foreigners Act, 1946 and the Registration of Foreigners Act, 1949, the term “foreigner” means a person who is not a citizen of India.

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The lack of awareness has led to the harassment of people. Government has moulded it into a political issue to stay in power. Despite having necessary documents people are declared as foreigners. Numerous cases have been reported were people were later found to be citizens of this country after languishing in jails. This category has become a means to harass people. The poor are the biggest sufferers. They are not educated enough to understand these lengthy procedures or to hire lawyers to represent their case. Cases are referred to tribunal haphazard ly and they are deprived from proper representation. In spite of having long standing documents 8-10 members in a family are accused without probing a proper inquiry. Before forwarding a case to the tribunal, the voter ought to be given sufficient time and opportunity to prove their bona-fide.

g. No repatriation treaty with Bangladesh Repatriation means to send someone to their own country. India, although has enacted various laws, set up tribunals to detect and deport foreigners. But it has not signed any repatriation treaty with Bangladesh to send back the people who are declared as foreigners who came from Bangladesh. Without treaty, Bangladesh is not bound to accept people and accommodate them on its soil. The Supreme Court has already directed the Union to sit into negotiation table with Banglades h to chalk out the cumbersome process of deportation. This can be done only when both the parties agree to do so. Otherwise India is producing a group of “unrecognised people” who are fated to languish in uncertainty. But the Modi led government has not taken up the case with its counterpart. As recently as October 2017, Bangladesh Information Minister HasanulHaqInu told an Indian journalist that in the past 30 years there has been no unauthorised migration from Bangladesh to Assam. He emphasised that no Indian government has ever complained of this. While issues such as terrorism, smuggling, drug and human trafficking are routinely discussed and the two governments have agreed on the modalities of cooperation on those matters, illega l migration has never featured in official discussions between the two governments. 6 India and Bangladesh hasn’t entered into agreement where Bangladesh will take back the people declared as foreigners. Without agreement all these efforts of detection and deportation is absurd h. Burden of Proof

6

Baruah, Sanjib: Stateless in Assam, The Indian Express, January 19, 2018.

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“The right to a free trail is a fundamental human right to which all accused persons are entitled. The major objective of this is to provide fair trial. The criminal justice system presumes that an accused is innocent until the prosecution has proven the person’s guilt beyond reasonable doubt. The burden of proof lies on the prosecution to show that the accused is guilty-the defence must only attempt to disprove the accusations made by the prosecution.”(Case, 2010) After the scrapping of IMDT Act, the Foreigner Tribunals has been working under the Foreigners Act, 1946. This reverses the burden of proof upon the accused to prove his/her citizenship. It thus stands against the values and motive behind the presumption of innocence. The person is considered to be an offender from the starting and has to prove his/her innocence. It dilutes the concept of neutrality. The person has to strive to prove that he/she is a citizen of India otherwise one is declared a foreigner. In many cases, the judges pass ex-parte judgement without even listening to the concerned person. Many people are not economically stable enough to hire a lawyer to represent him/her. There are also cases where one doesn’t receive notice leading to his/her absence from the tribunal. CONCLUSION:The study establishes that marking ‘D’ voters is leading to human rights violation. The letter ‘D’ if marked before an individual’s name takes away their citizenship by disenfranchis ing them. It casts doubtfulness on their nationality and their identity as an Indian national is scrapped off. Not being recognised as Indians renders the people stateless and stands against the Universal Declaration of Human Rights Article 15. Statelessness renders a person vulnerable and dismisses their rights. They become people with no land. D leads to a trail from the harassment faced by the ‘D’ voters right from hiring a lawyer, lengthy paper works to spending nights in jail cum detention camp. They have to undergo all these only to prove themselves as Indian Nationals. If failed to do so due to many circumstances, they are supposed to languish behind the bars or waiting to be deported without any treaty to facilitate that. Moreover, lack of awareness and education also has a bearing on the vulnerability of people marked as ‘D’ voters. This system overrides the Indian Constitution and has vested certain powers on officials who cannot be questioned for their actions. The study shows how certain people have misused this power. This has further aggravated the situation of ‘D’ voters whose fate is decided by the officials.

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Lastly, this mechanism of identifying foreigners has endowed the Government machinery with powers to carry the task while the other parties involved have none to address their grievances or are not assured any protection. Instead they undergo a row of deprivations and rightless. Their fate solely lies on the officials involved in this process, thus making one party the sole negotiator. This is leading to scraping of human rights. Whether one is considered a foreigner, illegal immigrant or an Indian, everyone is entitled to basic human rights. “To be stripped of citizenship is to be stripped of worldliness; it is like returning to a wilderness as cavemen or savages… A man who is nothing but a man has lost the very qualities which make it possible for other people to treat him as a fellow man… they could live and die without leaving any trace, without having contributed anything to the common world.” -Hannah Arendt, The Origins of Totalitarianism(Achiron, 2005)

BIBLIOGRAPHY:Achiron, M. (2005). Nationality and Statelessness.

In M. Achiron,

Nationality and

Statelessness (p. 7). Inter-Parliamentary Union with the United Nations High Comnmissio ner for Refugees. Baneerjee, C. (2016, May Friday). eclectic Northeast. Retrieved April Saturday, 2017, from eclecticnortheast web site: https://eclecticnortheast.in/largest- foreigners-detention-centre- inassam-in-the-pipeline/ Baruah, S. (2015). India against itself. In S. Baruah, India against itself (p. 46). New Delhi: Oxford University Press. Bhattacharjee, N. (2015, September Thursday). The Telegraph. Retrieved April Saturday, 2017,

from

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https://www.telegraphindia.com/1150903/jsp/northeast/story_40457.jsp#.WOvn99J97IU Borooah, V. K. (2013). The Killing Fields of Assam. Economic and Political Weekly, XLVIII, 43-52. Borooah, V. K. (2013). The Killing Fields of Assam. Economic and Political Weekly, XLVIII, 44-45.

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Case, S. A. (2010). Handbook of Human Rights Documentation Centre. In S. A. Case, Handbook of Human Rights Documentation Centre (p. 88). New Delhi: Oxford Univers ity Press. Laskar, O. (2012, June Tuesday). RightSpeaks. Retrieved April Saturday, 2017, from RightSpeaks web site: http://rightspeaks.blogspot.in/2012/06/deportation- illegal- foreigner shuman.html Mardell, M. (2016, November Thrusday). BBC NEWS. Retrieved April Saturday, 2017, from BBC NEWS Web site: http://www.bbc.com/news/electio n- us-2016-37922961 Patnaik, J. (2004). HUMAN, RIGHTS : THE CONCEPT AND PERSPECTIVES : A THIRD WORLD VIEW. The Indian Journal of Political Science, 65, 499-514. Patnaik, J. (2004). HUMAN, RIGHTS : THE CONCEPT AND PERSPECTIVES : A THIRD WORLD VIEW. The Indian Journal of Political Science, 65, 499-514. Roy, A. (2010). Introduction: Enframing the Citizen in Contemporary Times. In A. Roy, Mapping Citizenship in India (pp. 2-32). New Delhi: Oxford University Press. Sitharamam Kakarala, D. P. (2012). INDIA AND THE CHALLENGE OF STATELESSNESS. Delhi: National Law University, Delhi. Tymstra, J. H. (1993). The Function of Qualitative Research. Social Indicators Research, 29 (3), 291-305.

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THE CITIZENSHIP (AMENDMENT) BILL, 2016: THE CONFLICT BETWEEN CONSTITUTIONAL MORALITY AND MORALITY OF THE POPULAR MAJORITY -

Pranay Jalan

ABSTRACT The Citizenship Act, 1955 was enacted to provide for the acquisition and determination of Indian citizenship. The Citizenship (Amendment) Bill, 2016 for the first time, proposes a divide on religious grounds to the Citizenship Act, 1955 which was truly secular since its enactment in the early years of Independence. The Bill exempts persons belonging to minor ity communities namely: Hindus, Jains, Sikhs, Parsis, Christians and Buddhists from Afghanis ta n, Bangladesh and Pakistan from being deemed to be ‘Illegal Migrants’ under the said Act. This creates a religious divide which permeates through the secular moral fabric of the Constitutio n. The popular belief which exempts these illegal migrants belonging to minority communities for having fled religious persecution in their respective countries, cannot be allowed to be substantiated as a popular moral overriding the morality of that of the Constitution. Constitutional Morality embraces the constitutional values that are at the heart of our Constitution. This principle entails within its gamut notions such as the rule of law, ensuring a balance between fundamental rights and directive principles of the state policy, respecting multicultural values and opinions, secularism and social justice. In upholding the supremac y of the Constitution, these values act as a guiding beacon while safeguarding the Constitutio n against threats that might arise in the nation-building process, thus, paving way for good governance. The notion of egalitarian citizenship pre-necessitates integration and universalization by guaranteeing equality before the law as well as equal protection of laws. With the onset of the Citizenship (Amendment) Bill, 2016 the State of Assam is torn in conflict with the indige no us communities protesting against the said Bill since it poses a threat to the ethnicity and demography of Assam. The Bill may jeopardize the ongoing National Register of Citizens of India (NRC) updating process. The provisions of the Amendment Bill are in discord with the provisions of the Assam Accord, 1985 which aims at protecting these indigenous communities from the influx of illegal immigrants. Harboring a safe passage to The Citizens hip (Amendment) Bill, 2016 has thus, left the lives of 40,07,707 persons whose names have not  The Author is

an undergraduate student at Gujarat National Law University.

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appeared in the final draft of the NRC, dangling by the rope of an immoral legislative action. The function of a secularist regime is to protect and promote the multicultural interests in the truest sense of democracy. The interests of the indigenous communities of Assam are based on the moral values that the Constitution safeguards from being annexed by legislative action. Keeping in mind that secularism is one of the tenets of the basic structure of the Constitutio n and that the legislature exercised its powers in contravention to the provisions of the Assam Accord, 1985, the paper rules out any form of social or political anathema and seeks to examine the paradigms of public policy and constitutional morality at stake, prior to the enforceability of the bill as The Citizenship (Amendment) Act, 2016. INTRODUCTION As noted by Aristotle, there is a fine line of difference between what constitutes to be moral and immoral. A person possessed of a good character will be more virtuous than a person who derives justice from the plain reading of the law as the law may preclude decency. Therefore, given the diversity of human experience, it may be impossible for the law to realize true decency in all circumstances.1 However, the morality or immorality of the law can be gauged from human experience in the manner that such moral enormities cannot bind the human conscience even if instituted through well-crafted laws. The tyrannical use of power can, however, be used to achieve the ends through the means as per its own discretion, even if its immoral, therefore, examining the law by pegging it to a Supreme authority is imperative. If one is to examine the institution of slavery as overriding basic constitutional provisions, one would find that the mere force of a legal enactment was sufficient to do something that would otherwise be immoral and repugnant to the right to live with dignity. As a result, oppressive laws that undermine the public morality can be subjected to the citizens if the constitutional safeguards were to be undermined. To establish the Citizenship (Amendment) Bill, 2016 as an oppressive law serving to be a conflict between constitutional morality and public morality, we shall first examine the emergence of the Assamese community as an ethnic majority through statutory provisions that aims at preserving the sentiments reflected in upholding public morality. As a result, public morality comes to be adequately protected by constitutional values. Secondly, as the proposed Amendment Bill opens up a framework for the inclusion of constitutionally immoral policies, 1

BRUCE P. FROHNEN & GEORGE W. CAREY, CONSTITUTIONAL MORALITY AND THE RISE OF QUASI-LAW 46 (Harvard University Press 2016).

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it encroaches upon the public morality as established in the previous section. Lastly, with the inclusion of the changes as proposed in the Amendment Bill, the basic structure of the Constitution is undermined. I. THE EMERGENCE OF ASSAM AS AN ETHNIC STATE a) Reaching Agreements in a State of Crisis Popular morality is based on “shifting and subjecting notions of right and wrong” and constitutional morality is derived from “constitutional values”. In the case of an incongr uity between public morality and constitutional morality, the values of the Constitution shall prevail.2 For the purpose of upholding the popular morality of the citizens of Assam, the recognition of the Assamese majority as an ethnic community is of great importance. Ethnicity is a sense of identity or a feeling of belonging to a particular ethnic group. In addition to the subjective self- consciousness, ethnicity or ethnic identity also involves a claim to status and recognition either as a superior group or as a group at least equal to other groups. 3 It is pertinent to note that ethnicity is at the confluence of social, political and juridica l dialogues. In formulating policies or promulgating judicial pronouncements, the legislature or the judiciary cannot isolate itself from the values that are embedded in the society. Rather, it can be argued that their legitimacy is forged from societal values delineating what is morally acceptable in a society of unequals. As observed by Holmes, “Values are the life-blood of law; a law is the witness and external deposit of our moral life”. 4 In the context of citizenship laws, migration dominates the anxieties around which discourses of the crisis in citizenship are woven. 5 Such a crisis often witnesses a conflict between the concerns to preserve ethnic values and the morality of the legislature towards establishing safeguards. Citizenship, therefore, emerges as a momentum concept having the ability to expand and deepen itself by undertaking integrative and universalizing practices in dealing with the ‘crisis in Citizenship’.6 However, despite claims of citizenship as a dynamic and

2 Naz

Foundation v. Govt of NCT Delhi &Ors, (2009) 160 DLT 277 (Del).

3

PAUL R. BRASS, ETHNICITY AND NATIONALISM, THEORY AND COMPARISON 14 (Sage Publications 1991). 4 OLIVER

W. HOLMES, THE COMMON LAW 6 (Harvard University Pres s 2009).

5 ANUPAMA 6 Id.

ROY, MAPPING CITIZENSHIP IN INDIA 23 (Oxford University Press 2010).

at 27.

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inclusive process, the theory of categorization and apprehension towards migration is engrained in the Citizenship laws of the country.7 The question of ethnicity in Assam has always been a debated issue since the time of partition of the territory of East Pakistan (modern-day Bangladesh) as hordes of illegal migrants crossing over the porous border continued to throng the demography of Assam. This problem was recognized by the Central Government way back in 1950 when Parliament passed the Immigrants (Expulsion from Assam) Act of 1950 for the detection and deportation of illega l migrants hoarded in Assam.8 Suffering from fallacies in procedure and implementation the Act was put into disuse by 1957 as immigration continued unfettered and unabated. In the year 1971, the issue aggravated in the wake of the liberation war in Bangladesh as several lakhs of Hindus and Muslim refugees fled to Assam. This was just the beginning of lifting the political veil which later took the form of the Assam Movement. Over the years that followed after the culmination of the war, the demands of the Assamese community to attain parity with other nationalities was isolated from the political air. However, the issue attained a centre-stage at the 1978 Mangaldoi Lok Sabha Election, which witnessed a surge in the number of prospective voters, thereby instilling a sense of apprehension towards the issue of illegal influx. The events that followed took the form of The Assam Agitatio n which emerged as a popular movement against illegal immigrants in Assam. 9 The Agitatio n witnessed rampant protests towards the administration of the then ruling party as a result of their failure to deal with the issue of illegal immigrants in Assam. It was a portrayal of public sentiment against the illegal influx from Bangladesh which risked the identity of the indigenous community. As put by the Assamese Author Sanjib Baruah, the presence of large numbers of 'foreigners' instilled a sense of unease at the change in the demography, language, and access to resources, primarily land and employment, around which powerful popular movement wove itself.10 The original community experienced a differential treatment being meted out to them through this demographic erosion. In the wake of the Assam Movement, this difference was translated

7 Id. 8

The Immigrants (Expulsion From Assam) Act, 1950, No. 10, Acts of Parliament, 1950 (India).

9

SANJIB BARUAH, INDIA AGAINST ITSELF: ASSAM AND THE POLITICS OF NATIONALITY115 (University of Pennsylvania Press 1999). 10 See

supra note 5, at 27.

150

in terms of linguistic and cultural distinctiveness, moving towards the concerns over unequal development and discrimination emerging from differential treatment in the national-politic a l field. If the former was grounded in issues of an Assamese ethnic identity11 , the latter chose to prioritize issues of development and access to resources. 12 The Agitation, was, however, brought to a stall with the Memorandum of Settlement between the leaders of the agitation and the Central Government. The Assam Accord signed on 15th August 1985 was an agreement between the leaders of the agitation and the representatives of the Government of India. The Accord, thus, shifted the issues of implementation of citizens hip laws and misappropriation of Citizenship rights from the back-rooms of political horse-trading into the public domain. b) Putting forth a Differentiated Citizenship to Combat the Crisis As the Assam Movement that lasted for six years between 1979-1985 gathered force amongst the Assamese community, the sentiment that was reflected in the movement became a major highlight of the Citizenship (Amendment) Act, 1986. Following the terms of the Accord to ensure constitutional and administrative safeguards in protecting the cultural and linguistic identity of the Assamese community13 , the Citizens h ip (Amendment) Act of 1986 pushed its way thereby granting due recognition to a sixth category of Citizenship which was to exclusively apply to Assam. 14 While the Amendment of 1986 opened up a framework for the universalization of citizens hip by carving out a space for addressing the concerns around Citizenship in Assam, the notion of migration came to be associated explicitly with illegality. This proved to be in contrast to its age-old interpretation as a mere condition of passage into citizenship at the time of the commencement of the Constitution of India. 15 This portrayed the attitude of the legislature to pave way for an inclusive notion of citizenship. The Assam Accord as a sentimental epilogue revolving around the concerns of ethnic ity proposed the trend for a model of citizenship that was different yet equal. This differentia ted model of citizenship was vested in universalism by taking into account the specific needs of

11 Id.

at 98.

12 Id.

at 99.

13 The

Assam Accord, 1985, Cl.6, Memorandum of Settlement, 1985 (India).

14 The

Citizenship (Amendment) Act, 1986, § 6A, No. 51, Acts of Parliamen t, 1986 (India).

15 See

supra note 5, at 96.

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people belonging to groups which were disadvantaged at the peril of generalized applicatio n of the standards of citizenship.16 The Citizenship Amendment Act, 1986 affirmed this notion of differentiated citizenship in conferring deferred citizenship to those who arrived between 1 st January 1966 and the midnight of 25th March 1971 leaving their legality at the discretion of the Tribunal set up under the Foreigners Act, 1946. While the legality of those who arrived after 1971 was to be detected and deported following the Illegal Migrants (Determination by Tribunal) Act, 1983. 17 Even though the IMDT Act transgressed the reasonable nexus in seeking the object of the Act and was set aside as unconstitutional18 , if one were to go behind the objectives of the Act, one would find that the IMDT Act came in the form of a reassurance in its exclusive applicability to the State of Assam in dealing with the issue of illegal influx at a time when the Foreigners Act, 1946 contained similar provisions. The IMDT Act contained provisions for the identification and deportation of illegal migrants and to restore peace and harmony amongst the indigenous communities. Therefore, the Act even though unconstitutional; the legislative intent of extending a differential treatment to deal with the apprehensions of the Assamese community echoes in its codification. Thus, the statutory provisions enumerated above with its exclusive application to Assam put forward the theory of a differentiated citizenship, proving its allegiance to the morality of the Assamese community. II. THE

CITIZENSHIP

(AMENDMENT)

BILL,

2016

AS

OPPOSED

TO

CONSTITUTIONAL MORALITY a) The Moral Forbearing of the Amendment Bill on The Citizens of Assam “The issue of unabated influx of illegal immigrants in Assam has resulted in a noticeable change in the demographic pattern of the State and has reduced the Assamese community t o a minority. Graver concerns shall follow pertaining to National Security if the matter goes overlooked”.19

16 Iris

M. Young, Polity and Group Difference: A Critique of the Ideal of Universal Citizenship, 2ETHICS 99, 250-274 (1989). 17 See

supra note 14.

18 SarbanandaSonowal v. 19 Governor

Union of India, AIR 2005 SC 2920.

of Assam, Report on Illegal Migration into Assam, 1 (1998).

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The Apex Court has reiterated the issue of national security in Assam while observing that the concern is not of illegal migration but that of external aggression and internal disturbance that ensues on account of large scale illegal migration of Bangladeshi nationals. Having regard to the Constitutional mandate in Article 355 20 the Court held that is the responsibility of the State to take measures for this purpose.21 Following this Supreme Court directive, the process of NRC (National Register of Citizens) was expedited to deal with the ‘influx of illegal migrants into the State as an act of external aggression’. Aiming to protect the social, political and cultural identity of legitimate citizens of Assam, this move came almost after 30 years from the drawing up of the Assam Accord in 1985, which proposed safeguards in order to ensure democratic citizenship based on the realization of rights of the citizens in the truest sense. A democratic citizenship can be ensured when the persons forming a part of the community mutually recognize and frame rules, and consent to be governed by such rules vesting the power in a political sovereign.22 The Assamese community in expressing its concerns towards the loss of political rights due to the eroding communal identity vested their confidence in the Central Government through the Memorandum of Settlement, Assam Accord, 1985 which was couched in a language that made a promise of ‘constitutional, legislative and administrative safeguards’. According to sociologist T.H. Marshall, a democratic citizenship is not solely based on politica l enfranchisement, but it relies on ensuring equality through granting equal civil, social and political rights.23 Prior to the passage of the impugned bill, the Passport (Entry into India) Amendment Rules, 2015, extended the cut-off date from 25th March 1971 (as per Assam Accord) to 31st December 2014 for the detection of deportation of migrants belonging to religious minorities.24 Based on the Citizenship Act, 1955, the NRC process in its final stage of completion sifted out the names of as many as 40,07,707 persons who could not establish their presence before the midnight of 25th March 1971. The NRC as a tool to grant equal political and civil rights to 20

INDIAN CONST. art. 355, § 1.

21 See

supra note 18.

22 ANUPAMA

ROY, OXFORD INDIA SHORT INTRODUCTIONS: CITIZENSHIP IN INDIA 13 (Oxford University Press 2016). 23 Id. 24

at 12.

G.S.R. 685 (E) and G.S.R. 686 (E), Gazette of India, September 7, 2015

153

genuine citizens of Assam prescribed the cut-off year as 1971. It had been successful in disenfranchising dubious or ‘D-voters’ for alleged lack of proper citizenship documentation as almost 2.48 lakh people got the D-voter tag during the NRC process. There is a huge potential of identifying D-voters through the NRC process once the process of filing claims by the ambiguous persons is over. This could only be possible if the amendment to the notification is declared to be ultra-vires the Object of the Act, therefore avoiding any scope for such D-voters to pass off as legitimate citizens after a certain period of naturalisation. Since, the NRC pushes for an electoral roll comprising of only genuine citizens, the proposed bill which encompasses the religious minorities, shall also have the effect of hijacking the list of voters which may further dilute the political rights of the Assamese citizens. Thus, this is in clear violation of Article 32525 of the constitution which bars the inclusion into electoral rolls on religious grounds. Although the pool of migrants sifted out in the process have been granted the opportunity to file their claims, a large number of them who could not otherwise establish their claims and were therefore excluded from draft NRC shall be rendered eligible to take shelter under the impugned notification and subsequently become legitimate Indian citizens at the cost of the ethnic identity of the original inhabitants of Assam. The Apex Court has held that the notion of right under Article 21 of the Constitution, the right to life is wide enough to include not only the right to lead a healthy life so as to enjoy all faculties of a human body in their prime condition but it would even include the right to protection of a person’s tradition, culture, heritage and all that gives meaning to a man’s life. 26 Further, Article 29(1) of the constitution ensures the citizens residing in the territory of India the right to preserve and conserve their own distinct language and script of culture. 27 As noted by Durga Das Basu, the term ‘its own’ means the regular language used by an individual and does not bar other citizens or persons belonging to other religion or community from using it. 28 Part III of the Constitution is transcendental, inalienable and primordial and therefore forms the soul of the basic structure of the Constitution. To diminish the promises under this Part of

25 INDIAN 26 Sunil

CONST. art. 325, § 1.

Batra v. Delhi Administration, (1978) 4 SCC 409.

27 INDIA

CONST. art. 29, § 1.

28

8 DR. DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA 132 (Lexis Nexis Butterworths Wadhwa- Nagpur 2008).

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the Constitution is to deny individual justice to the civilized societies of Assam. The moral forbearing of the proposed amendment, thus, encroaches upon the inalienable rights of the citizens of Assam by dissolving the ethnic community. b) The Proposed Amendment as Opposed to Secularism The Preamble to the Constitution grants a Secularist identity to the sovereign that is India. Despite the fact that the word secular took a more material form after the Constitution (42 nd Amendment) Act, 1976, it is undisputed that India was a truly secular country since its inception as a sovereign since the Freedom of Religion enshrined in Part III of the Constitutio n upheld this Secularist identity.29 The partition of India in 1947 accompanied the creation of two independent dominions, India and Pakistan (comprising of modern-day Bangladesh). While India became a secularist state, Pakistan and later Bangladesh chose to tread on a theocratic path. Theocracy, thus, proved to be a fertile ground for these nations to mete out religious persecution to religious minorities which continued till date. In encompassing the woes of these religious minorities who allegedly entered the territory of India, the Citizenship (Amendment) Bill, 2016 proposes a religious divide by exempting illega l migrants who are Hindus, Buddhists, Jains, Sikhs, Parsis and Christians from the ambit of illegal migrants under the current provisions. 30 The beneficiaries of this proposed provision, i.e. the illegal immigrants, shall qualify for citizenship by the virtue of being a religio us minority in their respective countries31 , which goes against one of the basic tenets of the Indian Constitution, i.e. Secularism. In identifying the relationship between religion and state, the Constitution does not make a rigid distinction between the two and it can be ascertained from its permissive attitude in upholding the conscience and dignity of every religion equally. The Constitution excludes secular activities such as lawmaking and judicial process from the influence of religion and practices which derogate public order, morality, and health and are against the principles as embodied in the fundamental rights.32

SUBRAMANIUM, CONSTITUTIONA L MORALITY – IS IT A DILEMMA FOR THE STATE, COURTS AND CITIZENS? 66 (CPS 2016). 29 GOPAL

30

The Citizenship (Amendment) Bill, 2016, § 2, No. 172, Acts of Parliament, 2016 (India).

31 Id. 32 Bommai

v. Union of India, AIR 1994 SC 1918.

155

The language of the proposed amendment goes against the secular principles embedded in the Constitution as only specific communities are included for granting citizenship while excludi ng a particular community. The amendment, therefore, encourages the minorities of the neighbouring countries to illegally migrate to India and get citizenship on a stay of six years. This amounts to a very liberal invitation to those people to cross the border flouting the provisions of the Foreigners’ Act.33 In creating this communal divide on the grounds of religion, the bill shall prove to be highly inimical to the indigenous people of Assam and the federal structure of the State. Several reports have claimed the population of 40,07,707 excluded from the final draft of the NRC to comprise of a 50-50 composition, that is an equal number of Bengali Hindus and Muslims. Therefore, the basis of classification in defining a genuine Assamese identity is unreasona ble as the move shall witness an equal number of the otherwise ineligib le Bangladeshi Hindus qualifying for a legitimate Assamese identity by enforcing this inclusive yet constitutiona lly flawed policy. The proposed enactment overlooks the fact that while the Ahoms strengthened the foundatio n of the Assamese language and culture, the Muslims saved the foundation of the same from every danger or threat. The Muslims accepted the Assamese language and started establishing schools and colleges that led to the emergence of a multi-cultural diversity in the State.34 This move by the Central Government is fuelled by a political agenda. The proposal of a Bill inclusive of religious minorities served to be a moral plank of the ruling national party in the Assam State elections. It has been observed by the Supreme Court that any party or organisation which seeks to fight the elections on the basis of a plank which has the proximate effect of eroding the secular philosophy of the Constitution would certainly be guilty of following an unconstitutional course of action. 35 In the words of the great statesman-philosopher Dr. Radhakrishnan: “Being a secularist State, the country shall not identify itself with nor shall be controlled by any particular religion. No religion should be accorded special privileges for that would be a violation of the basic principles of democracy. This view of religious impartiality shall ensure that no group of citizens arrogate to themselves rights and privileges that it denies to others. 33 Lok

Sabha, Report of the Joint Committee on The Citizenship(Amendment) Bill, 2016, 21 (2018).

34 Shahiuz

Zaman Ahmed, Identity Issue, Foreigner's Deportation Movement and Erstwhile East Bengal (Present Bangladesh) Origin People of Assam, 67IHC, 626-627 (2006). 35 See

supra note at 30.

156

No person should suffer any form of disability or discrimination because of his religion but all alike should be free to share to the fullest degree in the common life.” 36 Secularism forms an integral part of the basic structure. Therefore, outright rejection of a Muslim community as the absolute other and the acceptance of a multi-diverse community by virtue of them being a religious minority is both publically as well as constitutionally immora l because it overrides the promise of an Assamese identity and permeates the basic structure of the Constitution. Therefore, given the facts of the situation, a policy which proposes a communal divide is deemed to be negated by the Constitutional Principles.

36 Dr.

S Radhakrishnan, The Report of The University Education Commission, 1 Ministry of Education:GoI, 257259 (1963).

157

III.

CONCLUSION

Constitutional Morality is an indispensable condition for ensuring harmony between the practices of the State and the beneficiaries subjected to such practices. The Citizens hip (Amendment) Bill, 2016 suffers from severe fallacies on the grounds of morality and public considerations. The Bill undermines the rule of law in its nomenclature as the illegal migrants shall be incentivised to explicitly engage in illegal activities that were once clandestine. As the proposed Amendment renders the illegal immigrants to be legal, they will be immune to deportation throughout the naturalisation period at the end of which they will be rewarded with a status equal to a legitimate citizen of the country. Although their names shall not appear on the electoral rolls before the expiry of this period, they might continue to fraudulently acquire identity cards and voting rights in a similar manner which the State of Assam has endured in the recent past. In addition to national security, the moral threat that the Bill poses to the functioning of the country as a democracy shall not be overlooked. The far-reaching implications of the proposed enactment shall render the concept of India as welfare-state to be dysfunctional. Thus, the transition of the Bill into an Act shall prove to be a constant source of conflict as it imbala nces the relationship between the diverse perspectives of public and constitutional morality which would otherwise be in harmony if the Bill was to be enacted while incorporating these moral considerations.

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CITIZENSHIP LAWS IN INDIA: PROGENY OF IDEOLOGICAL POLITICAL RHETORIC AND ITS IMPLICATIONS ON REFUGEES - Prathiksha Chandrasekhar Ullal and Harita Ramachandran

ABSTRACT Citizenship of a particular country not only carries with it a sense of identity but it also proves to be a launch pad for the assertion of one’s rights. With growing intolerance towards various groups, religions and ethnicities that can be witnessed on a global level, citizenship laws almost serve as the social lens through which we can understand the perceptions of people. It is not to be forgotten that politics play a major role in the arena of citizenship laws. With global leaders starting from Adolf Hitler to Donald Trump, using the political rhetoric to internalize their ideals in the minds of the people they govern regarding various issues like ethnic ity, naturalization, illegal immigrants, citizenship issues continue to be dynamic and relevant. In the Indian context, the framers of the Constitution envisioned the future for an independent India which ensures dignity of the Individuals by resting such an ideal on the three pillars of liberty, equality and fraternity. The citizenship laws in India have recently come under a heavy load of criticism for the exclusion of certain communities, religions etc. these legislative changes go against the ideals such as secularism, unreasonable classification which have been enshrined in our Constitution. Tolerance and harmony has been the guiding spirit behind the Constituent Assembly as they have tried to incorporate a secular and inclusive set of princip les and provisions in the Constitution. The change in the perception regarding these ideals highlights a significant change in the contemporary social conception which has a lot to do with the political scenario as well. This paper seeks to highlight the political ideologies that give a strong indication of the legislative intent behind the present citizenship laws around the world. The paper then compares and contrasts the citizenship laws around the world influe nced by such political rhetoric. The paper further delves into the depths of the issue by analysing how to remedy their discriminatory stance with respect to the emerging refugee crisis which is heavily linked to their religion. The central focus of this paper however rests on the recent amendment to the citizenship laws in India and how it goes against the core tenets of constitutional morality set forth by the makers of the constitution. This is particula r ly dangerous for the visions of the secularism in India and the harmonious co-existence of



The Authors are Students of Christ (Deemed to be University), Bangalore.

159

religions in the country. This paper also analyses various refugee laws both domestic laws and international treaties to analyze the approach adopted towards refugees and its effects on identity and citizenship laws. This paper also highlights the possible causes of xenophobic tendencies as one of the causes for Brexit and seeks to link it to the contemporary situations to complete analyze the situation and to examine whether political rhetoric played a role in this case as well. The main focus however shall be on the Indian citizenship laws and what could possibly neutralize the effects caused by the recent amendment and possible recourses to maintain status quo. Keywords:

Political Rhetoric, Constitutional Morality, Xenophobia, Brexit, Refugee,

Secularism INTRODUCTION The central theme of contemporary political theory still revolves around the complex nexus between the state and its citizens. It is pertinent to understand the notion of a State from a historical development of thought process to appreciate its subsequent evolution. Zeller observes that ‘the politics of Aristotle is the richest treasure that has come down to us from antiquity and the greatest contribution to the field of political science that we possess’. 1 Plato and Aristotle both conform to the idea that a State has a natural and organic origin, which is quite divergent to the beliefs of the Sophists who gave it a connotation of a conventional and a historical institution.2 Citizenship flows from the State and their relationship is governed by certain laws made to regulate their effective working in the society. Aristotle defined State as an institution composed of people who can be rightly called as citizens who actively participate in the functions that are carried out by the State. 3 The State and the citizens are often connected by a vital link constituted by political rhetoric which in simple terms is a means of persuasive communication. Aristotle has also emphasized on the three ideals on which political rhetoric rests- Logical argumentation (Logos), use of the emotion to invoke and elicit support (Ethos) and by means of tending to believe the statements due to the credibility of the speaker (Pathos).4 Political rhetoric is often an indispensable tool in ascertaining the stance of various governments on a number of issues- particularly with respect to citizenship. The media plays

1

Charles Howard Mcllwain, The Growth of Political Thought in the West: from the Greeks to the end of Middle Ages, at 50-51(1932). 2 J. C. Johari, Political theory and Socio-Political Philosophy, at 286 (2015). 3 id. at 292. 4 Anthony F Arrigo, What Aristotle can teach us about Trump’s rhetoric, The Coversation, (January 23, 2019, 9.00 AM) https://theconversation.com/what-aristotle-can-teach-us-about-trumps-rhetoric-107761.

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an important role in transmitting this rhetoric thereby making politics a participative process. The three major effects on how people perceive information can be categorized into – Agenda setting, priming effect and framing. 5 The media in the agenda setting phase, influences people by choosing what to cover and limiting public knowledge only to what has been covered by media. The priming effect focusses on the agenda which relates to a particular politica l personality by re-emphasizing the statements made by the

person through eye-catching

headlines which sends out a clear message in making the person remain in the memory of people. The framing effect is based on presenting the problem in different positive ways leading to a cognitive bias to make a choice of one over the other.6 These communication technique s are often used by politicians who use rhetoric as a means of influencing people and convinc i ng people by use of the components of ethos, pathos and logos effectively. The concept of citizenship is often linked to politics and tends to be a political pawn which can be influenced by political rhetoric. The paper will deal with how political rhetoric has had a bearing on various concepts like xenophobia in Britain, ethnic outbidding in America and ethnic cleansing in Germany. All these have either been influenced by citizenship or has molded the perception of citizenship in their respective countries. The paper will further examine the Indian experience of dealing with refugees by taking the instance of the Rohingya crisis and how the political rhetoric and votebank politics has led to a humanitarian concern for thousands of Rohingyas who have been rendered ‘stateless’. The paper further takes a turn on closely examining the recent amendment to the Citizenship Bill which seems to be exclusio nar y in nature. The conclusion will summarize the entire discussion on the interplay between political rhetoric and citizenship and highlight the need for a more inclusive approach to citizenship to ensure the prevention of gross human right violations CONCEPT OF CITIZENSHIP SKEWED TO SUIT POLITICAL RHETORIC: THE EXAMPLE OF UK, USA AND GERMANY (a) The close nexus between Brexit and Xenophobia “I want my Country back and take back control”, was one of the campaign slogans during the referendum that took place in Britain wherein the people of Britain voted to leave the European Union.7 Theresa May, the present Prime Minister of Britain in her speech stated that “if you

5

David L Heflert, Political Communication in Action: From theory to Practice at 44,45 (2018). at 47 7 Graham Taylor, Understanding Brexit: Why Britain voted to leave the European Union, 2( 1st ed. 2017). 6 id.

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believe you are the citizen of the world, you are a citizen of nowhere”, having a rather striking similarity with the speeches of Hitler. 8 However, it is clearly seen that this decision has deep rooted reasons, one of which is the instance of immigration and the rise of xenophobic tendencies in the UK and these extend beyond mere political and legal reasons. 9 Immigratio n was one of the main focal points as there was a major influx of EU workers into the UK which was creating a great burden on housing and employment facilities for the citizen of the UK.10 The extent of political rhetoric is rather alarming as it intends to persuade people strongly , with very few evidence or empirical data to support their claims. Gary Younge vehemently opposes Brexit as he says this move leads to ‘de-humanizing Migrants11 and he also relies on the Ipsos Mori poll to show that immigrants in UK constitute only 5% and not 15% as believed by the people of UK backing the leave campaign.12 It is rather pertinent to understand the term ‘Xenophobia’ in the wake of the emerging refugee crisis. Xenophobia can be defined as denigration of individuals based on perceived differences 13 and simply put, it is the fear of outsiders. The major conflict in this regard is between the liberal notions of multi-ethnic cosmopolitan cities and communitarian approach alongside national identity and pride. 14 This is the power of political rhetoric which has been illustrated through these various examples . The world politics is now moving towards intolerance due to the collapse of the liberal order and the views of universalism has taken a backseat due to the alarming use of political rhetoric. The use of rhetoric to give effect and encourage racist and xenophobic beliefs poses the greatest threat to humanism and the unity of the greatest nations on the planet. (b) Anti-immigrant stance of Donald Trump: Favoring ‘ethnic outbidding’ American Presidential speeches and oratory techniques have often been perceived as great sources of political rhetoric. The political rhetoric of Donald Trump has made his stance on immigrants- Mexican Americans and Muslims crystal clear from the very beginning. The history of American racism can often be understood by drawing parallels to the foundation of Nazism in Germany which is based on the eugenistic conception of a genetically superior race

Jonathan Davis, Andy Hollis, Theresa May’s Brexit speech had shades of Hitler, The Guardian,( Jan 26th 7:00 p.m.). https://www.theguardian.com/politics/2018/oct/12/theresa-mays-brexit-speech-had-shades-of-hitler 9 Taylor, supra at. 2. 10 Id. at 2. 11 Victor Jeleniewski Seidler, Making sense of Brexit: Democracy, Europe and Uncertain Futures,107(2018). 12 Gary Younge, Brexit: A Disaster Decades in the making, The Guardian,(Jan 26 th 6:00 p.m.) https://www.theguardian.com/politics/2016/jun/30/brexit-disaster-decades-in-the-making 13 Mikael Hjerm, National Identities, National pride and Xenophobia: A comparison of 4 western countries, 41 ISO. 335,335 (1998). 14 Id. at 336. 8

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than other Americans like Mexican Americans, African Americans etc. 15 The concept of Trump’s rhetoric can be characterized as creating xenophobic tendencies by a process of ethnic outbidding. This concept is applied when there are multiple ethnic groups and in order to appease certain ethnic groups, politicians resort to favoring them even if it is at the expense of others. The trajectory taken by Donald Trumps is to appeal to white nationalists by eugenis m at the cost of Muslims and Mexican ethnic groups. 16 The rhetoric regrading immigrant policies has worked to the favor of Trump and the Republicans due to the way immigrants have been portrayed and by highlighting the potential harm that can be caused by such immigrants in order to be perceived as the ‘protectors’ of national interest and security.17 Trump has made attempts to end birthright citizenship, it being his strongest rhetoric derived from his anti-immigrant stance. This in essence would mean, that the babies born to non-US citizens residing in the US will not be considered to be a naturalized citizen of the United States of America . 18 Trump and his administration are convinced that such a change does not require a Constitutional amendment. His recent stand on building the Trump Wall even on the face of the government shutdown is clearly indicative that his antiimmigrant stance. This will be the center of his political speeches and strategy for firmly sealing his victory in the upcoming Presidential elections. (c ) The German experiment of ethnic cleansing spearheaded by Adolf Hitler The Nazi hatred towards the Jews manifested itself in many ways, however depriving them of their citizenship was one of the measures adopted by the Nazis. The history of the laws depriving Jews started way back in 1933 by means of the Law on the Revocation of Naturalizations and the deprivation of the German Citizenship wherein few lost their citizenship by revoking naturalization. The scope was however expanded in the Eleventh

Huerto, Why President Trump’s racially charged Immigration rhetoric and policies are so dangerous, Scholars Strategy Network(January 21, 2019 , 1:30 PM) https://scholars.org/brief/why-president-trumpsracially-charged-immigrat ion-rhetoric-and-policies-are-so-dangerous. 16 Zack Beauchamp, “Ethnic Outbidding”:the academic theory that helps explain Trump’s anti-Muslim rhetoric, Vox, (January 21, 2019 , 1:30 PM) https://www.vox.com/world/2015/12/10/9881876/tru mp-muslims-eth n ic outbidding 15 Alvaro

17

Paul Starr, Is Xenophobia Politically Rational, The American prospect, (January 21, 2019 , 1:30 PM) https://prospect.org/article/xenophobia-politically-rational 18 "No Constitutional Amendment Needed" To End Birthright Citizenship: Trump, NDTV, (January 21, 2019 , 1:30 PM)https://www.ndtv.com/world-news/donald-trump-plans-to-end-citizenship-by-birth-for-non-usnationals-1941045

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Decree to the law on the Citizenship of the Reich which deprived all the Jewish Germans of their citizenship on the ground that they have resided abroad. 19 Race played an important role in differentiating between the ‘superior’ German Aryan race to which the Nazis belonged and the exclusion from citizenship of Jews by way of these laws paved the way for the Holocaust and the ethnic cleansing of the society only for the superior race to survive.20 There is some evidence to suggest that Hitler was influenced by the notion of American racism as James Whitman in his book “Hitler’s American Model: The United States and the Making of Nazi Race Law” makes an intriguing observation about “Mein Kampf” which is Hitler’s autobiography, wherein he praises America for conceiving a citizenship based on race and thereby in the process excluding other races for claiming the benefit of naturalization21 It is rather ironical to note that Hitler who changed the face of citizenship in Germany was born in Austria and was a migrant to Germany. His appointment to a government job with automatic citizenship made him a German citizen in 1932.22 Political rhetoric of Hitler, considered to be one of the world’s finest, appealed to the masses and he emerged as one of the primary figures in the study of Fascism. The resurgence of the Nazi ideology propagated by Adolf Hitler is coming into vogue by means of political rhetoric by many prominent German politica l leaders.23 This has to be understood in light of the inclusive refugee stance which Angela Merkel was trying to establish, the recuperated Nazi rhetoric seems to be anti-refugee having malignant tendencies based on the notions of ethnicity.

19

Stanley Johnson, Explained: Nazi Laws which stripped Germans of Cit izenship and the Laws Restoring it, Passportia(January 23, 2019, 12.20 PM) http://www.passportia.org/blog/explained-nazi-laws-stripped-jewish 20 William F. Meinecke, Jr., Remembering the Nuremberg Laws: The True Meaning of Citizenship, United States Holocaust Memorial Musuem, (January 23, 2019, 12.20 PM) https://www.ushmm.org/confrontgenocide/genocide-prevention-blog/remembering-the-nuremberg-laws-the-true-meaning-of-cit izenship 21 Alex Ross, How American racism influenced Hitler ,The New Yorker(January 23, 2019, 12.20 PM)https://www.newyorker.com/magazine/2018/04/30/how-american-racis m-influenced-hitler 22 Feb 25, 1932 CE : Hitler becomes a German, National Geographic (January 23, 2019, 12.20 PM ) https://www.nationalgeographic.org/thisday/feb25/hitler-becomes-german/ 23 Samuel Osborne, Nazi language becoming increasingly common in Germany’s discussion ofre fugee crisis, researchers say,Independent, (January 23, 2019, 12.20 PM)https://www.independent.co.uk/news/world/europe/nazi-language-germany-refugee-crisis-far-right-racisma7429921.ht ml.

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ROHINGYA CRISIS: CLASSIC INSTANCE OF BLURRY LINE OF DEMARCATION BETWEEN ‘REFUGEES’ AND ‘ILLEGAL IMMIGRANTS’ The issue of dealing with refugees in India is not some issue that we haven’t grappled in the past. The history of refugee crisis was almost a direct result of the partition, and since then India has been the country housing the largest refugee population in South Asia despite not being a party to several International agreements with respect to refugees. 24 This raises serious questions as to why India has become hostile towards the Rohingyas, who have sought asylum in India. The government has taken a stand that the influx of the Rohingya population has taken a toll on the resources of the country and has posed significant security challenges. 25 India has taken the stand that by virtue of not being a party to the UN Refugee Convention, 1951, India need not abide by the principle of non-refoulement. This caused the treatment meted out to the Rohingyas to be one of illegal immigrants rather than refugees. 26 The identity cards issued to the Rohingyas by the United Nations High Commissioner for Refugees (UNHCR) has been disregarded in India and has deported the Rohingyas back to Myanmar which violates the principle of refoulement.27 The government of India has taken consistent steps to ensure that the Rohingyas do not form a part of public life by the biometric collection of information to exclude these members to hold Aadhar card, which is required for a public life in India. 28 Tracing the backstory of how Rohingyas fled from Myanmar to various parts of India and Bangladesh was a result of the Burma Citizenship Law 1982 which classified the citizens into various categories to institutionalize the hierarchy that was prevalent in the times. 29 As a result of this institutionalization, Rohingyas were classified as “resident foreigners” who gave them no rights that were equal to that of citizenship. The challenge to this system of characteriza tio n

24 Martand

Jha, India's refugee saga, from 1947 to 2017, Livemint,(January 24,2019 , 11:28 am), https://www.livemint.com/Sundayapp/clQnX60MIR2LhCitpM mMWO/Indias -refugee-saga-fro m-1947-to2017.html 25 Rohingya Refugees Who Were Stranded at India-Bangladesh Border Sent to Judicial Custody, The Wire, (January 24,2019 , 11:28 am),https://thewire.in/rights/rohingya-refugees-who-were-stranded-at-indiabangladesh-border-sent-to-judicial-custody 26 Shaikh AzizurRahman,Rohingya refugees flee India amid fears of mass deportation,The Telegraph ,(January 24,2019 , 11:28 am)https://www.telegraph.co.uk/news/2018/11/27/rohingya-refugees-flee-india-amid-panicdata-collection-drive/ 27 Krishna N Das, India’s Rohingya refugees suffer with hatred, fear as first group is expelled, Thomson Reuters, (January 24,2019 , 11:28 am)https://www.reuters.com/article/us -myanmar-rohingya-indiainsight/indias-rohingya-refugees-struggle-with-hatred-fear-as-first-group-is-expelled-idUSKCN1MH04P. 28 Elise Thomas, The other Rohingya Crisis, The Interpreter,(January 24,2019 , 11:28 am)https://www.lowyinstitute.org/the-interpreter/other-rohingya-crisis 29 Navine Murshid, Why is Burma driving out the Rohingya-and not its other despised minorities?, The Washington Post, (January 24,2019 , 11:28 am)https://www.washingtonpost.com/news/monkeycage/wp/2017/11/09/why-is-burmas-military-driving-out-the-rohingya-and-not-its-other-despised-minoritygroups/?utm_term=.648d3dbe50cb

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has been the reason for the Rohingya crisis as their opposition was a threat to the newly formed Myanmar. It is rather ironic to note that the denial of citizenship in Myanmar has continued even in India almost rendering them ‘stateless’ in the country of asylum as well as country of origin. The Rohingyas identity belongs to the Bengali origin and they were forced to remain in Burma for the purpose of British retaining control over the present day Rakhine State in Myanmar.30 Parallels can be drawn between the situation of Rohingyas in Myanmar and the situation in Assam due to the National Registrar of Citizens (NRC) . Although the causes might be different, the effect remains the same. The result of ethnic cleansing and fostering hostility leaving these communities stateless serves as a classic example of vote bank politics in India. The ruling BJP government can explicitly highlight their ideological orientation by expressly excluding those who do not fall within the criteria under the NRC, and appease the Hindu Assamese vote bank going into the general election of 2019. 31 These communities are excluded from citizenship, the question of voting does not even arise. These voters, predominantly Muslims

who if given an opportunity would vote against the BJP due to their exclusive

Hindutva ideology, are now being rendering Stateless for politica l gains . The deportation of Rohingyas to Myanmar is an important strategic political move for the BJP to appeal to its Hindu vote bank. The deportation of Rohingyas has assumed so much importance that the party manifesto ahead of the upcoming polls in Rajasthan has promised the deportation upon winning the polls.32 In this context, it is pertinent to note certain judicial decisions in the pretext of the Rohingya crisis. In the case of Dongh Lian Kham v. Union of India33 the Delhi High Court has held that the principle of non-refoulment falls under the ambit of Article 21 irrespective of the nationality. Further the Supreme Court in the case of NHRC v. State of Arunachal Pradesh and Anr.34 has explicitly held the life and liberty of every person has to be protected and the question of citizenship does not arise. It is interesting to note that Article 21 of our Constitution has been

30 Ranjeev

C Dubey, Why India can’t afford Rohingya refugees, Business Today, (Janu ary 24,2019 , 11:28 am)https://www.businesstoday.in/opinion/fineprint/rohingya-refugee-crisis-india-bengal-rakhine-myanmarbangladesh-jammu-settlement/story/263586.html 31 Hartosh Singh Bal, Is India creating its own Rohingya?, The New York Times , (January 24,2019 , 11:28 am)https://www.nytimes.com/2018/08/10/opinion/india-citizenship-assam-modi-rohingyas.html. 32 Umar Manzoor Shah, Rohingya become pawns in India’s political game,Ucanews, (January 24,2019 , 11:28 am)https://www.ucanews.com/news/rohingya-become-pawns-in-indias-political-game/83975 33 34

226(2016 ) DLT 208 AIR 1996 SC 1234

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worded to include and the protect the life and liberty of every person. Despite this, the refusal of Supreme Court to hear the matter of deportation of refugees to Myanmar sets a bad precedent in light of the humanitarian jurisprudence in India.35 This by implication equates the stand of the government of the Judiciary, which clearly is a sign of vicious tendencies for a democracy like India which is premised on separation of powers. CRITIQUE OF THE INDIAN CITIZENSHIP (AMENDMENT) BILL, 2016: Citizenship is a term which denotes a state’s engagement with both their citizens and those pressing at its borders.36 There are two elements in this definition that need to be examined namely citizenship is not only limited to the relationship of the state and its citizens but also with the non- citizens at its borders. These elements are very relevant in this discussion as these complex set of relationships coupled with ideologies of the state’s lawmakers forms the basis for the structure of citizenship laws in those respective states. Weber points outs an inherent paradox of conscious control of the law makers on the making of legal rules which he claims to be of very little significance and it has a much greater socio-economic paradigm attached to it and is also not fully perceived by the lawmakers themselves. 37 Law is a product of a diverse system which encompasses various ideologies, psychologies of diverse groups and entities in a society and it is seldom a static concept. This dynamic feature of law can be elucidated by considering legislative process a product of ethical and political debates of a particular time period in which it is made.38 The main objective to have brought the above theories into place is to determine to what extent the ideologies of the particular time period seep into the legislative process. As we can infer from the above statements that law is a very accommodative concept and thus have a large number of influential factors behind its making. It is now pertinent to examine the political scenario of the world to establish the present pulse of ideologies that are influencing citizenship laws worldwide. There has been a major ideological shift in terms of the fall of the liberal order and this shift is fueled by drastic changes like Britain voting to leave the European Union, the Election of Donald Trump and the Refugee crisis which reflects the rise of white nationalis m, racism and Xenophobia against religious, ethnic and cultural groups like Muslims and Mexican

Pallavi Saxena, Supreme Court’s refusal to interfere with the deportation of seven Rohingya refugees violates International Law, (January 24,2019 , 11:28 am) https://www.livelaw.in/supreme-courts-refusal-to-interferewith-the-deportation-of-seven-rohingya-refugees-violates-international-law/ 36 Niraja Gopal Jayal, Citizenship and its Discontents, 62 (2013). 37 SallyFalk Moore , Law as a Process – An Anthropological Approach ,06 (1978). 38 Hans Kelson, Pure Theory of Law ,193-276 (1960). 35

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Americans. 39 The rhetorical political ambience in the world is leaning now towards discrimination and intolerance which was earlier leaning towards tolerance and a univers a l cosmopolitan view of citizenship. This attitude has also seeped into a secular country like India where secularism is considered to be the basic structure of the constitution. 40 The recent Citizenship Amendment Bill 2016 has caused a furore among the liberals and is also seen as the biggest threat to the order of secularism in the country that has been preserved since the inception of the Indian Constitution. It is pertinent to examine the contents of the Bill in connection to political rhetoric over constitutional morality which is a clear subversion of the true ideals of the Indian Constitutio n. The main highlight of the Bill is that it amends the Citizenship Act, 1955 to make illega l migrants who are Hindus, Sikhs, Jains, Buddhists, Parsis and Christians from Afghanis ta n, Pakistan and Bangladesh eligible for citizenship. This was a proviso added to Section 2(1) of the Citizenship Act after clause (b) which explicitly makes religion , a basis to obtain citizenship and expressly excluding Muslims from the list of religions. In Section 4(d) of the same Act, another proviso was inserted to reduce the aggregate period of residence to obtain citizenship in India from 11 years to 6 years. The Citizenship Act was again sought to be amended in 2019 to exempt the application of the Foreigners Act, 1946 and a Central Government exemption under Section 3(2)(c) of the Passport (entry into India) Act to these religious communities. This is clearly violative of Article 14 of the Constitution of India as the wording under Article 14 is ‘any person ‘does not differentiate between citizens and non-citizens’ and its available by virtue of personhood. In the case of M Nagaraja v. Union of India41 , it was held that Equality is the essence of democracy and it also constitutes the basic structure of the constitution. In the case of State of West Bengal v. Anwar Ali Sarkar42 it was held that to be permissible under Article 14 of the Constitution a classification must conform to 2 tests which are a) classification to be founded on an intelligible differentia b) must have a rational nexus between the differentia and the object sought to be achieved by the Statute. . Another issue that emerges from this provision is that it discriminates people on their religion and which also implies that Muslims, atheists and people

39 Meghnad Desai,

Politic Shock: Trump,Modi,Brexit& the Prospect for the Liberal De mocracy, 2 (2017). SR Bommai v. Union of India AIR 1994 SC 1918. 41 AIR 2007 SC 71. 42 AIR 1952 SC 75 40

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who do not wish to associate with any religion for that matter are not eligible for citizenship. 43 The government, however has adopted a quite different approach to justify the Bill and to subsequently prove how the amendment can withstand the challenges posed to it under the tests laid down by the Court under Article 14. The government in its report of the Joint Committee on the Citizenship Amendment Bill 2016 44 relies on the case of Parent’s Association v. Union of India45 where classification as accepted on the grounds of historical, geographical or other reasons and these reasons were held to be reasonable. The report also relies on Clarence Pais v. Union of India46 in this case it was held that historical reasons may justify differentia l treatment of separate geographical regions provided it bears a reasonable nexus to the differential treatment. The basic contention that the government here is relying on, is that the main object of this Act is not to discriminate on the basis of religion but the Act is focused on protecting persecuted minorities in these countries. 47 It is further aimed at curbing the drastic growth of International Islamic fundamentalism from spreading to India which is a stand adopted by the Supreme court in the case of SarbanandaSonowal v. UOI.48 Thus is whole scenario perfectly falls in line with the argument that the world is moving towards hegemonic intolerance and this case also perfectly elucidates the fall of the Liberal order and it is a greate st threat to the liberal concept of universal cosmopolitan citizenship. CONCLUSION There is a situation of divisiveness in the political atmosphere in the world having varying notions of citizenship. Citizenship provides a sense of identity to the population. Often citizenship laws are misused in order to suit the political scenario. This has widespread implications on refugees and migrants as in the case of the Rohingyas. The discrimina tor y treatment meted out to the Rohingyas is a result of lack of a refugee law in India, which has led to the blurry distinction between refugees and illegal immigrants. Political rhetoric has never gained so much importance as in the present times, that America being one of the most developed nations of the World has had a government shutdown on the pretext of ethnic 43 Anviti Chaturvedi,

Legislative Brief: The Citizenship Amendment Bill 2016, PRS: Legislative Brief (January 25,2019, 6:00 p.m.), http://www.prsindia.org/uploads/media/Citizenship/Legislative%20Brief%20Citizenship%20A mendment%20Bi ll%202016.pdf 44 Parliament of India, Lok Sabha 45,( 26th January 9:00 p.m.), http://164.100.47.193/ lsscommittee/Joint%20Co mmittee%20on%20Bill%20to%20amend%20the%20Citizenshi p%20Act,%201955/16_Joint_Co mmittee_on_Bill_to_amend_the_Citizenship_Act_1955_1.pdf 45 2000 2 SCC 657 46 2001 4 SCC 325 47 Lok sabha supra, at 46. 48 AIR 2005 SC 2920

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outbidding the Mexican American population. To fathom that such a progressive nation is still influenced by primitive conceptions such as racism clearly indicates that political rhetoric still has the influence that George Orwell predicted it would have. The main reason attributable to this sense of hostility and intolerance towards other communities as put forth in the paper- the fall of Liberal order. In the name of citizenship , the world community cannot legitimize human right violations as this would set an unhealthy precedent, as one day the perpetrator of hate will be the victim of hate.

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THE NRC VIS-A-VIS THE CITIZENSHIP (AMENDMENT) BILL, 2016 -

Priyanka Gogoi

INTRODUCTION The National Register of Citizens (NRC) has been an exercise conducted, first in 1951, and currently being updated following the Supreme Court directions in Assam Sanmilita Mahasangha&Ors vs Union of India.1 Such a National Register of Citizens does not exist in any other state of India. The pending case will be dealing with issues regarding the constitutionality of Section 6A of the Citizens hip Act, 1955, the different cut-off date that is applicable to Assam and whether the influx of illega l migrants constitutes ‘external aggression’ and/or ‘internal disturbance’ under Article 355. To understand why such a register of citizens came to be, one needs to understand Assam’s history associated with the waves of refugee influx. MIGRATION AND ASSAM: Pre-Independence, post-independence and even at present, the borders of India and Banglades h are porous and Assam shares 262kms of border with neighbouring Bangladesh, besides a shared history under British rule. The Constitution (Article 6) mentions the cut-off date of migrants to India as 19th July 1948. Post-partition, India and Bangladesh (then East Pakistan) saw communal riots break out. In 1950, in an effort to end the atrocities on minorities, the Nehru-Liaquat Pact was signed and both governments emphasized not on migration of citizens on religious lines, but on the allegiance of the minorities to the country of their choosing. However, the influx of refugees continued unabated even after the cut-off date of 19th July 1948. In order to ascertain who was an Indian citizen, during the census of 1951, a National Register of Citizens was prepared under a directive of the Ministry of Home Affairs containing information village-wise of each and every person enumerated therein. 2

 The Author contributed in

the capacity of Academician.

1

WP(C) NO. 562 OF 2012 2 Ibid, para 7

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After the passing of the Citizenship Act, 1955, Foreigner Tribunals were set up to deport Pakistani nationals who were in India without proper permission. The process of deportation of foreigners from Assam picked up momentum during the period from 1961 to 1966 and during that period itself, more than 1.70 lakh infiltrators were pushed back to the then East Pakistan.3 Towards the late 1960s, however, the concern about the seriousness of the immigra tio n problem among the political leadership was on the wane and gradually it evaporated. This seems to have stemmed from the emerging geo-political reality in the subcontinent. 4 With the liberation of Bangladesh in 1971, Assam witnessed another wave of refugee influx. At the outset of the crisis, India had taken the position that refugees would have to return within a six-month period.5 However, it soon became clear that the evacuees will not be able to return to Bangladesh within the proposed period of six months. Soon after, the 1972 Indira-Mujib Agreement was signed and illegal migrants who had entered India from Bangladesh after January 1964 up to 25 March 1971 were allowed to return to Bangladesh. However many refugees chose to stay in India. It is to be noted that the influx of illegal migrants did not stop at 1971. ASSAM ACCORD: In 1979, during the by-elections in Mangaldai, it was alleged that the electoral rolls had a considerable increase of Muslim voters. The protests of demanding the removal of names of illegal migrants from the electoral role culminated into the Assam Movement. The moveme nt quickly took a dangerous turn with carnage, pillage and thousands rendered homeless. Such was the scale of large-scale violence that President’s rule was proclaimed on 12 December 1979. The All Assam Students Union (AASU), All Assam Gana Sangram Parishad (AAGSP), Purbanchalia Lok Parished (PLP), Assam Jatiyatabadi Dal were at the fore and demanded the

R Dutta Choudhury, ‘Over 1.70 lakh foreigners deported from State during 1961-66’, The Assam Tribune (28 June 2018) http://www.assamtribune.com/scripts/detailsnew.asp?id=jun2818/at056 last accessed 25 Jan 2019 4 DilipGogoi, Unheeded Hinterland: Identity and sovereignty in Northeast India (1st edn, Routledge, 2016) 5 UNHRC, The State of The World’s Refugees 2000: Fifty Years of Humanitarian Action (Chapter 3: Rupture in South Asia) 66, , last accessed on 25th Jan 2019 3

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identification, deletion from electoral rolls and deportation of all foreign nationals who have entered the state illegally after 1951. 6 While the Assam Movement was in fervour, the Union government enacted a special legislation, the Illegal Migrants (Determination by Tribunals) Act, 1983 (the IMDT Act). One of the reasons for enacting this legislation was to appease the leaders of the Assam Movement. The Act dealt with identifying/detecting and deporting non-citizens. After six years of agitation, on 15 August 1985, the Assam Accord was signed by the representatives of the Assam Movement and the Government. The terms of the Memorandum of Settlement stated that the parties agree 1 st January 1966 to be the base date for detection of foreigners, and any illegal immigrant who entered India from 1 st January 1966 up to 24th March 1971 will be disfranchised for a period of ten years, following which their names will be restored in the electoral rolls. All foreigners who enter Assam on or after 25 th March 1971 will continue to be detected and expelled. In accordance with the Assam Accord, the Citizenship Act, 1955 was amended in 1986 and Section 6A was inserted. ILLEGAL MIGRANTS AND THE IMDT ACT: As seen from the Assam Accord, illegal immigrants are those who came to Assam on or after 25th March 1971. The exact number of illegal immigrants who entered Assam after 25 th March 1971 can never be precise. However, many researchers have tried to extract Census data and provide an approximate number. Saikia (2005) estimates the number of illegal immigrants to be at least 1.4 million between 1971 and 1991, and at least 1.1 million between 1991 and 2001. 7 There are a few other estimates available from government sources. For example, one government record shows that between 1972 and 1993, of the people who entered India from Bangladesh legally, 836 thousand people stayed back illegally. 8

6

Assam Accord, 1369, Economic and Political Weekly, Vol. 20, No. 33 (Aug. 17, 1985) accessed on 18th Jan 2019 7 Hiranya K. Nath and Suresh Kr. Nath, Illegal Migration into Assam: Magnitude, Causes, and Economic Consequences (January 28, 2011) 18 accessed on 25th Jan 2019 8 Ibid 19

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Illegal migration has been widely attributed as the main cause of high rate of population growth in Assam and other parts of the region. There were also the allegations of the manipulations of electoral lists to enlist the illegal migrants. Over 50 territorial assembly constituencies in Assam had reported 20 per cent increase in voters between 1994 and 1997, while the national average was just 7.4 per cent.9 According to many, the Illegal Migrants (Determination by Tribunals) Act, 1983 was a hurdle in detecting and deporting foreigners. Once detected as a “foreigner”, the burden of proof was on the authority/complainant to prove that the person detected was indeed a “foreigner”. (It must be noted that according to the Foreigners Act, 1946, that applied to the rest of the country sans Assam, the burden of proof was on the alleged “foreigner” to prove his Indian nationality.) Due to this particular mode of identification prescribed by the IMDT, it was argued in SarbanandaSonowal v. Union of India that the Act was too protective of the immigra nts’ interests and the detection and consequent expulsion of foreigners were “dismal”. 10 Therefore, in 2005, the Supreme Court struck the IMDT as unconstitutional. While the grounds for declaring the act unconstitutional were specifically questions of legal procedure, the general principles articulated in the process had ramifications for the way in which citizenship was defined and interpreted. The Court described immigration from Bangladesh not only as illegal entry, but as an act of aggression. Arguing within a notion of bounded citizenship, the Court stated that buttressing national territorial boundaries and protection of its population from infiltrators who posed a threat to national security was an essential function of state sovereignty. 11 In fact, when the IMDT Act was enacted, the Muslim groups supported it for various reasons, one of them being that they would have a way to prove their Indian citizenship (but also, for the nefarious reason that many illegal migrants would get a chance to stay back in India because of the burden of proof prescribed by the Act that may work in their favour). Therefore, when the IMDT Act was struck down by the Supreme Court the Muslim groups alleged that the Muslims would be harassed by the police in the name of detection of

9

M Amarjeet Singh, The politics of migration in India: What it is; and what to do? 5 (Thirdfront, Journal of Humanities and Social Science Vol. I, No. I, Feb. 2013) accessed on 18 Jan 2019 10 WP (C) No. 131 of 2000, Para 7. 11 Anupama Roy, Ambivalence of Citizenship in Assam, Economic & Political Weekly (Vol LI Nos. 26 & 27, 25 June 2016) 46

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“foreigners.” By contrast, the other groups who were against the IMDT Act welcomed the ruling.12 THE ASSAMESE MUSLIM: Assam has the third highest percentage of Muslims at 30.9%, At the onset, it is to be noted that an Assamese Indian Muslim cannot be placed in the same category as the illegal migrants. However, because of historical and cultural reasons, many Indian Assamese Muslims speak the same language and adhere to similar culture as the illega l migrants. This makes an onerous task of separating the genuine Indian Muslims from the ille ga l migrants pretending to be Indian. Therefore, the percentage of 30.9% may not be an accurate percentage if one takes up the issue of Indian nationality. Historical evidence tells us there had been presence of Muslims in Assam since the 12 th century. Through attempts of invasion by Muslim rulers to the spread of Islam in the region to the advent of the British colonialism wherein Bengali-Muslims came to Assam, the population demography of Assam has seen the presence of the Muslim population. It was during the Indian Partition and the subsequent liberation of Bangladesh that the seeds of identity crisis haunting the present Assamese population were sown. Religious persecution that culminated into the India-Pakistan partition, 1964 East Pakistan riots, and Hindu minority’s persecution in 1971 Bangladesh saw waves of influx of refugees into India; most of them entering the boundary states of Tripura, Assam and West Bengal. These occurrences had their own intricacies and created religious and linguistic divisio ns between the Bengalis (who were already settled in Assam), Assamese and migrants and divided the society on language and religious lines. As mentioned previously, the illegal migration continued unabated even after 24 th March 1971 and if one compares the population statistics, there has been an exponential increase in the Muslim population which, some say, is attributable to the increase in illegal migrants. The riots and aggression during the Assam Movement had further made a dent on the identity of the Muslim Assamese. When one looks at the Nellie massacre, one sees the brunt that Muslims in the region endured. 1819 people, mostly Muslim peasants of East Bengal origin was killed in the Nellie episode in 12

Ibid 9, 12

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February 1983. Such incidents create alienation and insecurity amongst Assamese Muslims, who have been and still are a large part of the Assamese society. In all of this, the Bengali Muslims has been the worst victim of identity as he is doubted over his citizenship because of his religion and language. THE UPDATION OF NRC: It was in the case of Assam SanmilitaMahasangha&Ors v Union of India 2014 that two fundamental issues were dealt with: the constitutional validity of Clause 6A of the Citizens hip Act, and updating of the NRC. However, the Supreme Court refrained from giving any verdict on the former, on the grounds that the issues associated with it “substantial questions as to the interpretation of the Constitution” which need to be answered by an appropriate bench13 and therefore, referred it to a constitution bench. The Supreme Court dealt with the progress in implementing various clauses of Assam Accord, including border security and foreign tribuna ls and issued directions to update the NRC in a time-bound manner. Accordingly, the onerous task of identifying Indian citizens was taken up by the Governme nt. A person could prove his Indian citizenship by showing one (out of 14) documents listed by authority that included 1951 NRC, Electoral Roll(s) up to 24th March 1971 (midnight), Land & Tenancy Records, Citizenship Certificate, Permanent Residential Certificate, Refugee Registration Certificate amongst others. 14 If an applicant is born after 1971, he or she can use the documents of his/her ancestors to prove legacy. Unfortunately, in the months that followed, there were news reports of the legacy data being misused to claim citizenship by illegal immigrants or wrongly used due to sheer ignorance. 15 On 30th July 2018, when the final NRC draft was prepared, 40lakh people were left out of the list. In November 2018, the Supreme Court allowed five more documents to prove citizens hip. These include: NRC of 1951, voter list of 1966, voter list of 1971, refugee registratio n certificate till 1971 and ration card issued till 1971. Hajela, the NRC coordinator, cited some instances of how the additional five documents, including ration cards, refugee registration and 13

WP(C) NO. 562 OF 2012, Para 33 Complete list at http://www.nrcassam.nic.in/admin-documents.html 15 ‘NRC: Put legacy data online, says rights body’, The Hindu (09 Aug 2018) accessed 25 Jan 2019 14

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citizenship certificates, can be forged and extracts of the 1951 NRC and electoral rolls up to March 25, 1971, also called legacy data, could be misused to get illegal migrants into NRC.16 But the Supreme Court added these five additional documents to help the citizens to prove their claim. Claims and objections were allowed till 31 st December 2018. Citing flaws in the NRC process, the Assam Public Works had made a demand for a reverification of the process and the Supreme Court has been considering the necessity of reverification of at least a 10% sample of those who have been included from every district. 17 It is the Supreme Court that finally decides what would be the fate of the people whose names are not on the Final NRC list. Even earlier, the false detection of citizens as foreigners has come forth in cases before the Supreme Court. The case of MoinalMolla who languished in a detention centre for more than 3 years is worth nothing. Both his parents were Indian, but he was a doubtful citizen.18 Another report that has made national news is the case of Mohammed Azmal Haque, a retired Army officer who was put in the doubtful citizen category. 19 Under the direction of the Supreme Court, one hundred such tribunals have been hearing cases of people residing in the state who have been placed in the doubtful (D)-voter category by the state government. 20 The researcher has chosen two cases concerning Muslim Assamese citizens specifically to bring to the notice the reason why the NRC, if updated correctly, would be a help to Assamese Muslim citizens. On the other hand, because of the NRC, the fate of 40lakh people is placed at the hands of the government. How many of these are Indians and how many are illegal migrants are to be determined on a case-to-case basis. If the objections and claims of these 40lakh applicants are

16

Bhadra Sinha, Supreme Court allows 5 more documents for filing claims, objections to Assam citizen list, Hindustan Times (01 Nov 2018) >https://www.hindustantimes.com/india-news/sc-fixes-dec-15-deadline-forinclusion-in-assam-citizen-list-allo ws-5-more-docu ments-as-proof/story-ybRY0Ro x70lote4Ozd VbIL.ht ml> accessed 25 Jan 2019 17 Sadiq Naqvi, Assam govt demands re-verification of NRC draft, Hindustan Times (01 Nov 2018) accessed 25 Jan 2019 18 Abdul Gani, Supreme Court asks Assam government not to deport MoinalMollah, Two Circles (16 Oct 2015) accessed 22 Jan 2019 19 Retired Army Officer in Assam Put in 'Doubtful Citizen' Category, The Wire (02 Oct 2017) accessed 17 Jan 2019 20 ibid

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undertaken in a fair and just procedure, upholding constitutionalism, the NRC exercise could still emerge as a successful exercise of weeding the illegal migrant from the Indian population. The best case scenario, at this moment, would be to create an orderly mechanism for those aggrieved by exclusion to exhaust judicial remedies in accordance with law, without prejudicing their rights by prejudging any matter. 21 With the NRC process underway, there were reports of people claiming to be Indians being harassed and detained by the authority. It is also alleged that the recent NRC (National Registration of Citizens) updation process of Assam, chalked out by the government as per the demand of the present AASU leaders is a well planned mechanism to harass the minor ity, specially the Muslim minority people of the state. 22 The government as well as the media have liberally played upon the slippage between “illegal encroacher” and “illegal immigrant” in its representation of the Bengali-speaking Muslims in the main. They are presently bearing the brunt of the eviction drives.23 However, in this disarray, the Citizenship (Amendment) Bill, 2016 was passed by the Lok Sabha, which sought to favour migrants of particular religious groups over Muslims. CITIZENSHIP (AMENDMENT) BILL, 2016: The Citizenship (Amendment) Bill, 2016 was introduced in Lok Sabha on July 19, 2016 seeking to exempt the rules for citizenship of Hindus, Sikhs, Buddhists, Parsis, Jains and Christians who arrived in India from Afghanistan, Pakistan and Bangladesh. The Bill states that the people belonging from these groups will not be treated as ille gal migrants. Additionally, whereas the Citizenship Act, 1955 allows a person to become a citizen by naturalisation if he resides in India for the 12 months immediately preceding the applicatio n for citizenship, and for 11 of the previous 14 years, the 2016 Amendment Bill reduces the 11 year old requirement to six years for the above-mentioned minority groups, hence making the path of acquiring Indian citizenship easier for some groups on the basis of their religious faith, thus eroding Article 14 of the Constitution.

21

Alok Prasanna Kumar, National Register of Citizens and the Supreme Court, Economic& Political Weekly (Vol LIII No. 29, 21 July 2018) 11 22 Shahiuz Zaman Ahmed, Deportation Movement, Creation Of 'D' Voters And Problems Of NrcUpdation in Assam, Proceedings of the Indian History Congress, Vol. 75, Platinum Jubilee (2014) 1296 accessed 18 Jan 2019 23 Gaurav Rajkhowa et al, The Citizen Finds a Home: Identity Politics in KarbiAnglong, Economic & Political Weekly (Vol LIII No. 47, 01 Dec 2018)

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THE NRC AND CITIZENSHIP (AMENDMENT) BILL: History is evident to the fact that migration has occurred in Assam since time immemor ia l. However, since Independence, the issue of citizenship, Assamese and Indian identity has placed the Assamese people at the brink of patience. The NRC and Assam Accord was a way of bringing some semblance of justice to people whose rights were slowly eroded away by the fast changing demography. However, the previous governments either could not find a solutio n to this issue or leaned in favour of illegal migrants for their ‘vote-banks’. It is also noteworthy to mention that illegal migrants who came to Assam from Banglades h after 1971 are both Muslims and Hindus. Therefore, a law that places one person over another on the basis of religion strikes at the very root of constitutionalism. Under the Supreme Court directions in Assam SanmilitaMahasangha&Orsvs.UOI, the Court had asked the Indian government to hold repatriation talks with Bangladesh government, but till date, there has been no progress in the matter. In fact, Bangladesh has denied the allegation of their nationals’ border crossing to India on several occasions. The Bangladesh government sees the problem of illegal migrants as India’s internal issue and says that the burden of proving that a person is Bangladeshi is on the Indian government.24 As Hiren Gohain states, “To scuttle the NRC now—which will gladden the hearts of Hindu chauvinists—is bound to restore the phase of bloody anarchy without an end in sight, which was the grim lot of the people of Assam barely three decades ago… Not that there is no danger from the undercurrent of Assamese chauvinism, but for now it is no longer the dominant trend, as the lessons of the Assam Movement have more or less left deep marks in the popular consciousness.”25 For once, the Assamese people have woken up from their slumber and assembled beyond race and religion to protest against the Citizenship (Amendment) Bill, 2016. One can only hope that the long-pending NRC process is conducted in fairness, and no genuine Indian is left out.

24

Bangladesh will take illegal immigrants but India must prove they are ours: Rizvi, India Today (05 Oct 2018) accessed 19 Jan 2019 25 Hiren Gohain, Economic & Political Weekly, Commentary (Vol LIII No. 49, 15 Dec 2018) 5

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NATIONAL REGISTER OF CITIZENS IN ASSAM: A SAVIOUR OR A CURSE -

Prof. (Dr.) Anand Pawar and Ms. Ishita Sharma 

'For many of us, citizenship only really matters when we travel abroad, when the Olym pic Games are on, or when we vote in national elections. We do not think about our citizenship on a daily basis. For others, citizenship is an ever present issue, and often an obstacle. Because recognition of nationality serves as a key to a host of other rights, such as education, healthcare, employment, and equality before the law, people without citizenship- those who are 'stateless'-are some of the most vulnerable in the world.'26 The National Register of Citizens (hereinafter referred to as NRC) has been doing the rounds in the national news from quite a while. The birth of the NRC can be traced back to 1951 when Assam was first faced by a huge influx of migrants from East Pakistan (now Banglades h). Primarily, an exercise to authenticate the citizenship credentials of the diverse population of Assam, that was beset by large scale migration in aftermath of partition as well as independence of Bangladesh from Pakistan in 1971. These factors led to a great influx of people into the state of Assam, which led to wide scale protests from the indigenous population leading to the Assam Accord on 15th August, 1985 and the exercise to update NRC in order to identify authentic citizens as opposed to illegal migrants. The task on the face of it, seems to be a good exercise to validate the existence of the people who entered India in the face of above-mentioned phenomena, but there exist glaring loopholes if one goes into an in-depth study of the legal provisions that beset this exercise. The provisio ns governing citizenship are laid down in the Constitution of India under the aegis of which is the Citizenship Act, 1955. Section 6-A of the Act was inserted as a result of as well as an appendage to the Accord where under clauses 4,5 and 6 of the said subsection, a person who has been identified as a foreigner shall have the same rights and obligations as an Indian citizen for ten years from the date of detection, except for inclusion of his name in any electoral roll. After the said expiry of the ten years she/he was deemed to be a citizen of India for all purposes, unless she/he does not wish to be a citizen of India and makes such declaration under the 

The Authors are Academicians at Rajiv Gandhi National University of Law and University of Petroleum and Energy Studies respectively. 26 India and the Challenge of Statelessness, A review of the Legal Framework Relating to Nationality, National Law University Delhi, Report submitted to The United Nations High Commissioner for Refugees, Office of the Chief of Mission to India and the Maldives, New Delhi. Retrieved from

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Citizenship Act. The provision further states that the name of such person was to be re-enrolled in the respective electoral list. This provision is a positive development in the light of exacerbating problem of statelessness. But the lacunae besets the individuals who have entered India after 24th March, 1971, who are left in a lurch without a nationality as well as no assurance of acceptance back into the country from where they migrated. The paper first begins by giving a historical context to the ongoing controversy and then analyses the exercise in the light of the relevant legal provisions that are pertinent to the current problem. It then explains how the threat of statelessness looms large on the individuals, who are subjects of this exercise in the light of the glaring legal loopholes beset in the entire task and steps that India can take in order to overcome this lacuna. Thus, the paper analyses the provisions governing citizenship in the country as well international instruments that advocate the right to nationality and examines them in the light of Citizenship Act 1955, especially in the light of National Register of Citizens of Assam and puts forward suggestions as to steps that can be taken to fill the voids that beset the exercise. RELOOK AT THE HISTORY Migration of a large number of individuals to a new place has in most cases led to backlash from the indigenous communities , instead of being a precipitator of cultural exchange and cohesiveness.27 In order to better understand the present controversy, it is essential to revisit the doors of history to understand the changing demography of the state of Assam that fuelled the problem in the first place. The trail of migration to the state of Assam starts from the conquest of the British in the drive for establishment of tea plantations in Assam in 1826.28 To foster this drive for establishme nt, they required workers which they recruited from amongst the tribesmen of Bihar, since the

27 In

Nigeria, violent attacks against immigrant Ibo settlers precipitated the country's 1967 civil war. In Malaysia, where many Chinese have lived for as long as the native Malays, "antagonism toward the Chinese is always defined in terms of a conflict between indigenous residents., and Chinese migrants." In Assam, the presence of migrant groups has caused similar tension. 28 Mridul Bhattacharjee &Sanjeeb Goswami, Assam, Agonies And Grievances at 2 (1985).At this time of early British imperial expansion in India, it was necessary for East India Company officials to form political subdivisions of the country. They had no perspective of India as a British dominion (b ecause it had not yet become one), but nevertheless needed to provide a suitable administration machinery for the territory that came intermittently into their hands. In the case of Assam, the territory was simply incorporated into the already existing state

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local Assamese had no interest in working on tea plantations. 29 This was the first phase of migration to Assam, but it hardly posed any significant constraints since the workers, came to work as seasonal migrant labourers30 . The next group of migrants were the Bengalis, who aided in the establishment of administrative set up in the state. 31 The seeds of resentment in the indigenous over alienation from their own state were sown from this second pattern of migration and exacerbated when Bengali was declared as the official language of the state of Assam in 1831, which reinvigorated the drive to recruit more Bengalis in order to teach it as a language in schools.32 This cultural alienation in their own state continued till Assam was declared as the official language in 1873, with its usage in all the affairs of the state. The next group of migrants were the Bengali Muslim farmers who utilized the vast tracts of land in western Assam. Owing to the lack of technology in those days, these migrant workers lost all touch with their indigenous homelands and imbibed the Assamese culture as well as langua ge but with the increase in influx of the Bengali population in Assam, this cultural diffusion suffered a setback and Bengalis began to emerge as a distinct group within the state 33 . Thus, a visit to the doors of history is essential to gain a perspective to the problem as it stands today. These bouts of migration that date back to our colonial masters led to an increase in the population of Assam. Thus, the initial seeds of the struggle between the indigenous population and the migrants can be attributed to our colonial masters who for their own economic interests ignored the cultural divide that was germinating in the state as well as spurring the tussle for control over the resources of the state between the two groups. This struggle was not unseen by the colonial masters. To control the wave of immigration that was doing the rounds in the state, the British introduced a form of Line system in 1920 that prohibited the migrants in settling in certain areas of the state. 34 Another attempt to control immigration was the compact colonization scheme that demarcated certain areas of the province specifically for the migra nt workers and delineated land specifically for the Assamese people. 35 With the exit of the British from the country, came the problem of demarcating the boundaries of the vast geographical entity that was haphazardly divided into the princely states and Britis h 29 Ibid. 30

Seasonal migration is a form of return migration. It is driven by seasonal peaks in labour demand, mostly in agriculture 31 Myron Weiner, When Migrants Succeed And Natives Fail: Assam And Its Migrants 10 (1975) 32 3H.K. Barpujari, Assam: In the Days of the Company 266-67 (1963) 33 Robert G. Gosseline, Minority Rights and Ethnic Conflict in Assam, India, 14 B. C. Third World L. J. 83 (1994) at 89. 34 Ibid. 35 Amiya Kumar Das, Assam’s Agony: A Socio-Economic And Political Analysis at 27 (1982)

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India. This exit brought with it, the unprecedented movement of people across fluid frontiers and porous borders. Such large scale movement fuelled the already tacit tension to one of overt nature. After the partition of country into India and Pakistan, with present day Bangladesh then known as East Pakistan, a part of Pakistan. Now, there was no cap on the movement of people to and fro India-Pakistan till 19th of July, 1950 when the Influx from West Pakistan (Control) Ordinance 1948 was brought into operation, as a result of which the above mentioned date was the threshold date for determining the citizenship rights of certain categories of migrants from Pakistan to India.36 After this comes the Nehru Liaquat Pact37 and then the highly controversia l Immigrants ( Expulsion from Assam Act) which authorised the Government to have certain categories of immigrants deported from the country38 . This provision of targeting certain categories of immigrants is highly sceptical, since this comes across as unprecedented power to the Government to target individuals in an arbitrary manner and have them deported. Thus, a look at the pages of the past shows that the seeds of dissension were already sown as one goes through the timeline of events but the interesting fact is that the legal conundrums in addition to the chequered history has made it a highly sceptical exercise. NATIONAL REGISTER OF CITIZENS: A SAVIOUR OR A CURSE The first census of India took place in 1951 on the basis of which the National Register of Citizens was compiled. A brief look at the pages of history shows that the seeds of tension were already present, but then certain developments fuelled the fire such as the independence of East Pakistan from Pakistan in 1971 which led to an influx of huge number of people. As already mentioned partition of India brought along with unprecedented migration which was fuelled by certain events even prior to the Independence of 1971 from Pakistan of East Pakistan such as the construction of the Kaptai Dam in 196639 . This huge influx resulted in a xenophobic movement being launched to strike the names of outsiders’from the voters’ list and deport them back to their country of origin. The organisatio n Chakravarty,Road to Citizens Register: A timeline showing the milestones in Assam’s history from 1947 to 2018, Available at . 37 The Nehru Liaquat Pact was signed after six days of talks between India and Pakistan ensuring the rights of minorities on both sides. In respect of migrants from East Bengal, West Bengal, Assam and Tripura, where communal disturbances have recently occurred, it said that refugees who returned by December 31st , 1950 would be entitled to get back their property. 38 Supranote 11 39 Supranote1 at 57. 36 Ipsita

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at the helm of this movement was All Assam Students’ Union ( hereinafter referred to as AASU) formed on August 8, 1967.40 Amidst all such tension came an accord between the Government , AASU and the All Assam Gana Sangram Parishad ( hereinafter referred to as AAGSP) according to which all the persons who came prior to 1 January 1966, were to be declared as Indian citizens under the ambit of Indian Citizenship Act, 1955. 41 Those people who moved to India after January 1966, and up to March 24, 1971, were to be identified and enrolled as 'foreigners' according to the arrangements under the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 196442 . This arrangement was likewise also extended to individuals whose name were at that point present on the electoral rolls in Assam or other place, and called for erasure of their names from the same43 . But before going into the nittigritties of the exercise of National Register of Citizens, certain points need due consideration in this regard, the international community has put in place a common framework for countries to prevent and reduce statelessness within their domestic populations. The two main conventions in this regard are the 1954 and 1961 Conventio ns, which lay out positive obligations on contracting states. The Convention relating to the Status of Stateless Persons was adopted on 28 September 1954 and entered into force on 6 June 1960. It establishes a framework for the international protection of stateless persons and is the most comprehensive codification of the rights of stateless persons yet attempted at 12the international level. It seeks to provide basic fundamental rights and freedom from discrimination against stateless persons. In the long term, it seeks to improve and regulate the status of stateless persons through international agreements. The next document is the Convention on Reduction of Statelessness was adopted by the United Nations General Assembly on August 30, 1961. This is the second international instrument that directly deals with the issue of statelessness. While the 1954 Convention provides for acknowledgment of

40 Prior

to its formation, there were certain events such as the passage of a bill in Assam Legislative Assembly, to make Assamese the only official language of the state in retaliation to which the Bengali language movement was launched in the Barak Valley. Then on September 23, 1964, the Centre issued the Foreigners’ Tribunal Order under the Foreigners ‘Act 1946. It mandated the setting up of tribunals’ with the task of identifying t he Foreigners’. 41 Section 6A (Special Provisions as to Citizenship of Persons covered under the Assam Accord) of Citizenship Act, 1955. Retrieved from http://mha1.nic.in/pdfs/ic_act55.pdf 42 .Paragraphs 5.1 to 5.4 of the Assam Accord, 1985. Retrieved from http://peacemaker.un.org/sites/peacemaker.un.org/files/IN_850815_Assam%20Accord .pdf 43 Paragraph 5.4 of the Assam Accord, 1985. Ibid

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stateless persons as a category in itself, the Convention of 1961 provides a directive to countries for preventing and reducing statelessness itself.44 On reading the provisions of the 1954 and 1961 Conventions, the fundamental princip les reflected in the Conventions are: 1. Avoidance of Statelessness. Incorporating such provisions in the domestic legislative frameworks of nations that prevent a person from becoming stateless. 2. Reduction of statelessness. Encouraging such changes in domestic legal frameworks that allow a person to embrace the nationality of a nation, if otherwise the person would have been stateless. 3. Prevention of statelessness amongst children. Preventing statelessness of a child by adapting requisite legislative amendments and administrative procedures to secure a child against becoming stateless.45 But the irony is that India hasn’t ratified either of these Conventions that are central to the prevention of statelessness. But despite the non-ratification by India, there are certain provisions in other international documents such as the Universal Declaration of Human Rights, to which India is also a party which under Article 15 explicitly lays down, 1. Everyone has the right to a nationality. 2. No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.46 But the catch lies here that the article does not bind the contracting states to grant nationality as a matter of right nor does it explicitly put the onus on the states to grant one, it simply creates conditions of not creating situations where a person might be deprived of his nationality. Thus, binding India to frame its policies and acts in such a manner that they do not deprive any individual of his/ her citizenship or create ambiguity in relation to the same, a lacuna which the exercise does not address as will be seen in the forthcoming explanation.

44

Supranote 1 at 60. Nations. (1961). International Convention on Reduction of Statelessness. Retrieved from < http://www.unhcr.org/3bbb286d8.html.> 46 United Nations. (1948). The Universal Declaration of Human Rights. Retrieved from 45 United

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The next international legal instrument that deserves mention here is the International Covenant on Civil and Political Rights, 1966 whose Article 2 deserves special mention, Article 2 1. Each State Party to the present Covenant undertakes to respect and to ensure to all individ ua ls within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. 2. Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such legislative or other measures as may be necessary to give effect to the rights recognized in the present Covenant. 3. Each State Party to the present Covenant undertakes: (a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; (b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy; (c) To ensure that the competent authorities shall enforce such remedies when granted. 47 The impact of the above Articles is that the Covenant obliges the States to act on the issues which impact the rights under the Covenant with no type of segregation on the basis of race, sex, dialect, religion and so on. These are the relevant international instruments which India has to adhere to despite its nonratification of the two most important documents pertaining to statelessness.

47 J.M.M.

Chan (1991). Nationality as a Human Right. Human Rights Law Journal. Vol. 12 (1- 2). (pp. 1-14).

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NATIONAL REGISTER OF CITIZENS AND THE PERSONS COVERED UNDER THE ASSAM ACCORD The initial move towards refreshing the NRC of 1951 was taken, when a tripartite gathering between the Centre, the Assam government and AASU was held to audit the advancement made in the execution of the Assam Accord. At that gathering, it was chosen that the Assam government will take up and complete in a span of two years the way toward refreshing the NRC of 1951 by including the names that show up in the 1971 voters' rundowns and those of their relatives. However, no endeavours were made either by the State government or the Union government in consequent years to refresh the NRC. The issue was again raised by AASU at the April 2009 progress meeting, on which event the Assam government gave a confirma tio n that it would begin the way toward refreshing the NRC. Following the affirmation, in June 2010 a pilot venture was started in two revenue circles – Barpeta and Chayagaon. In any case, the venture was suspended after fierce challenges by the All Assam Minority Students Union (AAMSU), which claimed that there were various abnormalities in the NRC. 48 While coming governments have been very hesitant to refresh the NRC of 1951 because of different political dimensions and personal stakes, the Hon'ble Supreme Court took up the issue when it was brought before it. hearing the batch of petitions on the same issue, particularly the one by Assam Public Works, a NGO, in July 2009 in which it had appealed for the erasure of unlawful voters from the voters' list of Assam and looked for updation of the NRC as a majo r aspect of that procedure, the Supreme Court, dismissing the postponing strategies of the Union and state governments, requested them to start the way toward refreshing of the NRC in Assam. As needs be, the Ministry of Home Affairs, in meeting with the Ministry of Law and Justice, issued the notice for beginning the exercise, by refreshing the NRC and delegated Prateek Hajela on January 28, 2014 as the State Coordinator for the NRC. As far as it matters for its, the Supreme Court comprised a Committee "to deal with any rectifications that would be required concerning the procedure in the planning of the NRC." Initially, the date for bringing out the culminating draft of the NRC was set as at the very latest on or before January 1, 2016. But upon the demand of the State Coordinator, the Court consented to expand the due date by two years.49

48 Pushpita

Das, Publication of the National Register of Citizens: a positiv e step, but what next, Available at 49 Ibid

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But the legal lacunae lies here, The subject of nationality of those individuals under the Assam Accord is given in Section 6A of the Citizenship Act, 1955. Under this Section, subsections (4), (5) and (6) express that an individual who has been distinguished to be a foreigner (de fined accordingly under Section 2(3)(a) of the Foreigners Act, 1946 and the Foreigners (Tribuna ls) Order, 1964) shall have equivalent rights and commitments akin to an Indian citizen for a period of ten years from his detection, with the exception of consideration of his/her name in any electoral roll. After the said expiry of the ten years, s/he would be regarded to be a nationa l of India for all reasons, except if s/he didn't wish to be a native of India and made such an assertion under the Citizenship Act. The arrangement further expresses that the name of such an individual was to be re-enrolled in the electoral list. This has all the features of being an appreciated arrangement, as it endeavours to anticipate occurrences of statelessness in a circumstance that may some way or another have created a gigantic danger of making statelessness on a substantial scale. In any case, the Assam Accord does not address the situation of those people who were found to have entered India after March 25, 1971. Such 'foreigners' kept on being identified, erased from electoral rolls, and thrust into a state of exile. The arrangements overseeing such people likewise does not consider deciding their nationality before ousting them to a nation that may likewise not acknowledge them or naturalize them as subjects. The Citizenship Act is in this manner quiet about the nationality question of such people who have come to India and been here since 1971. The combined effect of the Assam Accord and corollary arrangements in the Citizenship Act disregard to give adequate protection against statelessness to the future progeny of individ ua ls who may find themselves stateless because of the operation of these arrangements. Such people however dwelling in India end up stateless as they neither have an Indian nationality nor are perceived natives of some other country. On examining the relevant provisions, pertaining to nationality in the Citizenship Act, 1955 just as under the Assam Accord, due thought seems to have been given to settling issues identified with illegal migrants but insufficient consideratio n appears to have been given to issues of nationality with respect to stateless people, or to systems to decrease and mitigate statelessness. WAY AHEAD In order to resolve such a legal quagmire, a proper framework needs to be put in place. About 80 nations have consented to the 1954 UN Convention on the Status of Stateless Persons. A 188

large number of them have furthermore set up national assurance strategies for citizenship. For instance, France actualized such a framework for assurance during the 1950s. Different states that have pursued it as in Italy, Spain, Latvia, Hungary, Mexico, Moldova, Georgia and the UK.50 . India should also follow suit. As the Indian government right now has the on-going tasks of Aadhar and the NPR51 , it is prescribed that a different class of 'stateless people's be added to the information gathering engaged with these two ventures. This may additionally encourage the government on increasing subjective and quantitative information on statelessness, and help in further research on the states of stateless people. The authority could base itself in different states so as to deal with the assurance method at the grassroots dimension. This can go a long way in aiding the individuals left in a lurch due to the legal quagmire that abounds the exercise of NRC.

50

European Network on Statelessness. (2013). Statelessness: determination and the protection status of stateless persons. Retrieved from http://www.refworld.org/pdfid/53162a2f4.pdf 51 Supranote 1 at 99.

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NATIONAL REGISTER FOR CITIZENS AND IT’S LEGAL FRAMEWORK IN INDIA -

Shivam Tiwari

INTRODUCTION: The National Register of Citizens contains the names of all Indian citizens. Only once before has an NRC been prepared, in 1951. The registers were kept in the offices of the deputy commissioners and sub-divisional officers. The 1951 NRC is now being updated for Assam, which has had a longstanding foreigner problem, to weed out illegal immigrants and deter further influx. The state government machinery under the Registrar-General of India. Citizenship being a subject on the Union List, the Centre is responsible for the policy decisions, guidelines and funds for the NRC update. Updating the NRC has been a decades-old demand, with various modalities and cut-off dates suggested over the years and many rounds of talks held. Things began moving after a May 5, 2005, tripartite meeting among the Centre, Assam government and All Assam Students' Union. Chaired by then Prime Minister Manmohan Singh, the meeting decided to update the NRC. The Supreme Court got involved in 2009 after an NGO, Assam Public Works, filed a writ petition for the deletion of illegal migrants' names from voter lists in Assam. Pilot projects for updating the NRC started in two blocks (in Kamrup and Barpeta districts) in June 2010 but were stopped the following month because of law-andorder problems. In July 2011, the state government set up a cabinet subcommittee to simplify the procedure. In May 2013, the apex court directed the Centre to finalise the modalities by July 16, 2013. In 2014, the court directed the government to resume updating the NRC and has since been monitoring the process. Distribution and receipt of filled- in NRC application forms began in 2015. Acceptance of applications ended on August 31, 2015. The verification process started on September 1, 2015. Existence of name in the legacy data: The legacy data is the collective list of the NRC data of 1951 and the electoral rolls up to midnight of 24 March 1971. Proving linkage with the person whose name appears in the legacy data.

 The Author is

a student of Himachal Pradesh National Law University.

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CITIZENSHIP AND ASSAM Citizenship has always been a vexatious issue. Speaking about it before the Constitue nt Assembly, Dr Ambedkar said, “Except one other article in the draft Constitution, I do not think that any other article has given the drafting committee such a headache as this particular article. I do not know how many drafts were prepared and how many were destroyed as being inadequate to cover all the cases which it was thought necessary and desirable to cover.” Ultimately, the framers of our Constitution made stop-gap provisions on citizenship. The Parliament was left with plenary powers to make laws of a more permanent nature. The Parliament did so in 1955, with the Citizenship Act. Defining Indian citizenship was, in the context of Assam’s history, thus even more problematic. The Assam province of 1947 had a diversity hardly matched by any other geo-political entity of a similar size. Migration within British India became a source of social and political conflict since at least the middle of the 19th century. Specific provisions to deal with Assam were demanded even in the Constitue nt Assembly. A special law for the State of Assam, i.e. the Immigrants (Expulsion from Assam) Act of 1950, was enacted soon after the commencement of the Constitution -– even before a citizenship law had been drafted for the rest of the country. LIMITATIONS OF NRC 1951: On the basis of the Census of 1951, the National Register of Citizens was first prepared. But this NRC of 1951 was an incomplete one, as not all areas of the state could be covered. Many riverine, chars and remote regions could not be reached by the enumerators. Moreover, Assam also witnessed communal violence while the process of the NRC was initiated. Statistics reveals that 53,000 Muslim families fled to the then East Pakistan between 1948 and 1950 due to communal violence in Western Assam. If we assume a number of five to seven persons in a family on an average, and multiply that with the number of the figure of families that fled, it becomes 265,000 to 371,000 who left for East Pakistan from Assam in the wake of the communal riots of 1950. Latter the Nehru-Liyaqat pact of 8th August 1950 provided them a window of two years to return to India. In between, the NRC process was completed in Assam. Thus a large number of Muslims were dropped/missing from the total figure of the 1951 NRC and the census. But when in the next Census of 1961 those dropped out citizens’ names were

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enlisted, the growth rate of Muslims in Assam was seen as very high. Unfortunately the government did not bother to update the NRC of 1951 as was expected. 1 Who all have been left out? Out of the 40.07 lakh applicants who have been left out of the final draft NRC released, on Monday, 2.48 lakh applicants have been kept on hold including the D-Voters (doubtful voters who have been disenfranchised on account of failure to prove citizenship), descendants of Dvoters and persons whose cases are pending before the foreigners tribunal. The state however, has not revealed the reason for keeping others on hold. The Supreme Court steps in. Around the same time (2009), certain petitions were filed before the Supreme Court challenging the validity of Section 6A of the Citizenship Act. Certain other petitions sought a time schedule for the updation of the NRC. The cases before the Court presented a classic instance of the “Political thickets” doctrine. Questions of nativism, identity politics and xenophobia were brought up, after 30 years of the enactment of amendments to the Citizenship Act. The Supreme Court has usually declined to get into the political thicket. In this instance, it did. In doing so, it made certain observations which legitimised the scare-mongering that politic ia ns had resorted to for years. For instance, the Court in Assam Sanmilita Mahasangha noted that: “As a result of population movement from Bangladesh, the spectre looms large of the indigenous people of Assam being reduced to a minority in their home state. Their cultura l survival will be in jeopardy, their political control will be weakened and their employme nt opportunities will be undermined.” These observations are based on little evidence and position themselves on a unidimensio na l approach to Assamese history as seen through Axomiyaeyes.The Court also passed wideranging directions for the improvement of border security and setting up of foreigner s’ tribunals. Strangely, it also directed the Union Government to enter into negotiations with the Bangladesh Government, to streamline the process of deportation. It is difficult to think of

1

https://csss-isla.com/nrc-updation-in-assam-prospects-and-challenges/

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another instance of a Constitutional Court passing directions which lie in the realm of foreign policy. CONSTITUTIONAL SAFEGUARDS AGAINST RIGHTS DEPRIVATION: India’s constitution comprises of several sections that guarantee certain universal rights to citizens of the country and foreign nationals alike. They include Article 21, which guarantees the right to life and personal liberty; Article 21A that offers the right to elementar y education; Article 22 that offers protection against arrest and detention in certain cases; and Article 14 that guarantees equality before the law and equal protection of laws. These guarantees that the Indian Constitution offers to all persons on Indian territory do not, however, apply to ‘enemy aliens’—citizens of countries that are at war with India—as laid down by Article 22(3). However, Bangladeshi migrants in Assam do not fall under this category as their country of origin is not hostile towards India. Yet, in the case of Bangladeshi immigrants in Assam, there remains a grey area wherein the migrants, by virtue of not carrying any citizenship documents of Bangladesh, are not ‘foreign nationals.’ This allows for conditions of long-term statelessness to prevail, while also highlighting the gap in necessary legislation. However,

India

is party to several international

instruments

that prohibit

active

disenfranchisement of any set of peoples. For example, by virtue of its ratification of the International Covenant on Civil and Political Rights (ICCPR), in conjunction with Article 51(c) of its own Constitution, India is legally bound by its provisions that ensure certain global standards in civil-political rights to citizens. Article 2(1) of the covenant says: “Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory [emphasis added] and subject to its jurisdiction the rights recognised in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religio n, political or other opinion, national or social origin, property, birth or other status.” Subsequent sections lay down a broad range of rights, several of which are concomitant to provisions of the Indian constitution. Moreover, India is also party to the Convention on Elimination of all Forms of Discrimination against Women, and the Convention on the Rights 193

of the Child, both of which mandate the Indian state to offer concrete civil, political, and social rights to women and children – citizens or otherwise. Indian lawmakers, therefore, need to pay closer heed to the domestic and international legal framework on rights that India is bound by before drafting reckless and inhumane policies. Cross-border migration of various forms remains a stark reality today, especially in regions plagued by conflict, discrimination, and socioeconomic deprivation. The ongoing NRC drive and the foreseeable government plan to decertify millions of migrants and unregistered residents of Assam is a potent opportunity for legal thinkers and commentators to develop the Indian legal doctrine on migration, asylum, and statelessness. 2 INDIAN LEGAL DOCTRINE ON STATELESSNES In India, the legislation around statelessness is scattered and insufficient. There is no constitutional or legislative provision that directly deals with this issue. The absence of a single refugee law further only deepens the state’s incapacity to effectively tackle statelessness related situations. Thanks to this legal void, state policy on migrants (both distress and economic) without citizenship of a second country remains grossly arbitrary. For example, India treats Tibetans who fled their homeland after the 1959 Chinese invasio n and members of the Rohingya community who fled theirs after the 2012 Rakhine communa l riots differently. While the former is entitled to a host of state-sponsored largesse like proper settlement areas, educational and health benefits, Registration Cards (RCs), economic opportunities, and even citizenship rights for those born between 1950 and 1987, the latter continue to languish in trying conditions under partial support of the UNHCR. 3 Moreover, India has not ratified the 1954 UN Convention Relating to the Status of Stateless Persons or the 1961 Convention on the Reduction of Statelessness – both of which are crucial directive instruments. At the same time however, the 1961 Convention contains certain sections – like Articles 8(2)(a), 8(2)(b), 8(3) – that permit states to deprive foreigners of citizenship in

2

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specific cases of deliberate misrepresentation, fraud, and non-notification to authorities. Hence, even if India had signed the Convention, these sections could apply to Bangladeshi migrants in Assam. This would, however, be done through fair legal procedures rather than arbitrary state policies. Nevertheless, it is crucial to note that conditions of long-term statelessness are often triggered by certain inherent conditions of displacement. Migrants who enter another country without formal documentation, on several occasions, do so under extreme conditions of socioeconomic deprivation or political persecution. Expecting such disenfranchised people to produce identity/legacy documents after a long period of stay is harsh and impractical. In many ways, this is the case for Bangladeshis who came to Assam in search of better economic prospects and social security. NRC AS AN INFORMATION INFRASTRUCTURE Today’s press reactions resounded the uneasiness of the legislature concentration on making a remarkable achievement dependent on which it would be free from any mistake. In contrast to web based life, media reactions on site managed chiefly with allegations of NRC refresh (as opposed to the internet based life encounter among clients and NRC Team) process being careless about guarding submitted client reports, budgetary reductions and on ground inconsistencies essentially amid check. On numerous checks the NRC organization took care of media occupied with occupying consideration back to the accomplishment of NRC group and encouraging people in general to not lose trust in this 'productive' framework for an illic it settler free Assam independent of one‟s dialect, religion or other foundation. Social media played an important role in sustaining an interactive environment, different from the paper-based bureaucratic interactions with the public. Online queries included document clarification, verification and specifically queries regarding the post draft process, as well as helpline numbers and other resources which had been advertised on multiple posts on social media. Unlike official interactions in government offices, the 'digital circulation' and dissemination of official information and user feedback represent specific bureaucratic

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processes and public response simultaneously circulating through the NRC informa tio n infrastructure.4 NRC IN TRIPURA Just three months after the final draft of the National Register of Citizens for Assam was released, the Supreme Court has tagged a petition seeking a similar process for Tripura. The petition now tagged to the Assam case was heard by a bench headed by the Chief Justice of India, Ranjan Gogoi, on Monday. The petitioners, a group of activists from Tripura, sought a process to identify illegal migrants and deport them from the State. They maintained that the influx amounted to “external aggression” and that they have turned the tribal people into a minority in their own native land. Much of the migration into Tripura occurred before the creation of Bangladesh. The petition takes recourse to the 1993 tripartite accord signed by the Government of India with the All Tripura Tribal Force that asked for the repatriation of all Bangladeshi nationals who had come to Tripura after March 25, 1971 and are not in possession of valid documents authorising their presence in the State. In fact, the petitioners go even further than the terms of the accord to demand that the cut-off date for the recognition of migrants should be July 1949, based on Article 6 of the Constitution. These demands must be contextualised in the light of the developments in Tripura over the last four decades. As early as in 1979, after years of struggle, the tribal people of the State had gained special autonomy provisions, the institution of the Tripura Tribal Areas Autonomous District Council and recognition of their spoken language, among other assurances. Since then, the empowerme nt of the council and the protection of tribal rights have steadily eroded the significant tribal versus non-tribal differences that once existed in the State. 5 Over the last three decades, multiple insurgent groups have ended violent struggles — either quelled by force of law or as a result of conceding vital demands for preserving the gains made by earlier tribal struggles. The judicial-bureaucratic process of hearing a petition to seek the deportation of long-settled migrants is fraught with problems, not dissimilar to those already being faced in Assam. The question of what awaits the four million people whose names did not figure in the final NRC draft, and have been given a second chance to prove their antecedents, still hangs in the balance. Notwithstanding the fact that the NRC process in Assam has an overall popular legitimacy across most political parties, there is no answer to how the

4

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deportation process could (or should) proceed. Embarking on any such bureaucratic exercise without considering its deep humanitarian impact will only create new fault lines — especially in a State like Tripura where there is no such unanimity of views on the NRC process. It will undo years of work to bring about a reconciliation between Bengali-speaking and tribal people. The Supreme Court should be cognisant of this while hearing the petition.

What does the Bill aim for? With The Citizenship (Amendment) Bill, 2016, the government plans to change the definitio n of illegal migrants. The Bill, introduced in the Lok Sabha on July 15, 2016, seeks to amend the Citizenship Act, 1955 to provide citizenship to illegal migrants, from Afghanistan, Banglades h and Pakistan, who are of Hindu, Sikh, Buddhist, Jain, Parsi or Christian extraction. However, the Act doesn’t have a provision for Muslim sects like Shias and Ahmediyas who also face persecution in Pakistan.6 The Bill also seeks to reduce the requirement of 11 years of continuous stay in the country to six years to obtain citizenship by naturalisation.

Why all are opposing the Bill in Assam. BJP's coalition partner Assam Gana Parishad has threatened to cut ties with the party if the Bill is passed. It considers the Bill to work against the cultural and linguistic identity of the indigenous people of the State. NGOs such as The Krishak Mukti Sangram Samiti and students' organisation All Assam Students’ Union also have come forward opposing the Bill. All Opposition parties, including the Congress and the All India United Democratic Front, have opposed the idea of granting citizenship to an individual on the basis of religion. It is also argued that the Bill, if made into an Act, will nullify the updated National Registration of Citizenship (NRC).

‘ILLEGAL IMMIGRATION IN ASSAM NOT A RELIGIOUS ISSUE, BUT AN ETHNIC ONE’ The language of the Bangladeshis is different from what is spoken in Assam and Tripura. During the partition, the people of East Pakistan were given the option and some of them did not take that option. After that, too, they got the chance in 1965 and 1971. They did not come 6

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in then. So, why now? Now at the rate at which they have come, the Assamese people have become a minority.7 Even if 500,000 people are omitted from the final list, we are looking at a crisis that is larger than the Syrian and Rohingya exodus. When you started the movement, were you prepared to witness a civil backlash that the state may be grappling with in the future? Let the centre take the onus for it. Why should Assam suffer alone every time? Like in Tripura, the indigenous Assamese population are now a minority. The crisis is currently going on. The Bodos have been sidelined by the immigrants. CONCLUSION: Perhaps one needs to return and take a look at our Constitution and rehash ideas of the fringe, the general concept of citizenship. We have to go past hard definitions and take a gander at the obscuration of these ideas. A resident might be characterized regarding certain properties. Be that as it may, the inquiry is, how altruistic or plural is such a definition? Would we be able to do this with a specific measure of turmoil to support a plural vision of majority rule government? These are the issues Assam raises however our policy makers don’t consider it necessary to be talked about. How would we make an increasingly accommodating, approachable hypothesis of citizenship where negligible gatherings endure, where travelers and other liquid gatherings are permitted to pursue their life lines? Would we be able to think about a country state with porous outskirts and a fluid feeling of citizenship which makes life progressively confident for the displaced person? These are questions not for the removed future, but rather challenges this decade should survive. We need to reexamine the Assam in us. The lack of a coded state policy on asylum seekers, migrants and stateless people is precisely what has created a quasi-legitimate space for the government to strip migrants off all social, economic, and statutory rights. However, while Sonowal’s and Sarma’s assertions serve well to placate the local Assamese electorate, they may be in direct violation of pivotal constitutio na l provisions that guarantee bare minimum rights to everyone in Indian territory.

WEBLIOGRAPHY:

7 www.livemint.co m/Po lit ics/Qfa07o mJLXJqcdLrLLP10O/Illegal-immigration-in-Assam-not-a-relig ious-issue-

but-an.html.

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https://csss- isla.com/nrc- updation-in-assam-prospects-and-challenges/ http://ciril.org.in/legal- voids- in- indias-policies-on- migrants-and-stateless-people-a-casestudy-of-assams-national-register-of-citizens-nrc/ https://cis- india.org/raw/infrastructure-as-digital-politics- media-practices-and-the-assam-nrccitizen-identification-project-draft-paper https://www.thehindu.com/opinion/editorial/by-extension/article25208796.ece https://www.thehindu.com/news/national/other-states/what- is-the-citizenship-amendmentbill-2016/article23999348.ece www.livemint.com/Politics/Qfa07omJLXJqcdLrLLP10O/Illegal- immigration- in-Assam-nota-religious- issue-but-an.html

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NATIONAL REGISTER OF CITIZEN: LEGAL FRAMEWORK AND IMPLEMENTATION -

Tejas Pratap Singh

INTRODUCTION “National Register of Citizens” the concept is direct and clear by its name, a register containing names of Indian Citizens. This was prepared first in 1951 after the conduct of the Census of 1951for the purpose of making person legal citizen of India. It is being updated to weed out illegal immigration from Bangladesh and neighboring regions. 1 These registers covered each and every person enumerated during the Census of 1951 and were kept in the offices of Deputy Commissioners and Sub Divisional Officers according to instructions issued by the Government of India in 1951.2 It was done in respect of each village showing the houses or holdings in a serial order and indicating against each house or holding the number and names of persons staying therein, and in respect of each individual, the father’s name/mother’s name or husband’s name, nationality,

sex, age, marital status, educational qualification, means of livelihood or

occupation and visible identification mark. This was done by copying out in registers the particulars recorded during the Census done in 1951. This NRC was prepared under a directive from the Ministry of Home affairs (MHA). These registers covered each and every person enumerated during the Census of 1951 and were kept in the offices of Deputy Commissio ne rs and Sub Divisional Officers according to instructions issued by the Government of India in 1951. Later these registers were transferred to the Police in the early 1960s. 3 HISTORICAL BACKGROUND The first Assam NCR list was formed in 1951, when first Census of India was conducted postindependence, to list down the Indian citizens living in Assam, while listing out the illega l immigrants. In 2013, the Supreme Court of India ordered to carry out the updating process of NRC to the Assam government. The main concern of the apex court was to address the issue of growing illegal immigrants from the neighbouring country of Bangladesh and other regions on the basis of Citizenship Act, 1955, in accordance with Assam Accord of 1985.



The Author is a student at Galgotias University. https://www.insightsonindia.com/wp-content/uploads/2018/08/National-Register-of-Citizens-NRC.pdf 2 https://www.financialexpress.com/india-news/exp lained-in-brief-what-is-assams-national-register-of-cit izensupdation-and-how-it-will-impact-illegal-immigrants/997223/ 3 http://www.nrcassam.nic.in/wha_nrc.html 1

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In 2014, the Government of India with the Assam government, initiated the process of listing down the illegal immigrants that have crossed the border into the state of Assam after 1971 or prior to that but do not own any official identification document of them or their ancestors prior to 1971 or 1951. Assam historically has seen an influx of immigrants. Before independence, the britishe rs brought in plantation workers from present-day Bihar, Jharkhand, West Bengal, Andhra Pradesh and Telangana. In 1904, Bengal was divided into East Bengal, West Bengal and Assam.Post the 1971 war, a large number of people migrated from East Pakistan to Assam and West Bengal. In 1979, the leaders of the All Assam Students’ Union (AASU) started an agitation demanding identification and deportation of illegal immigrants. Finally, in 1985, the Assam Accord was signed after which the agitation culminated. Following the Accord, an amendment to the Citizenship Act of 1955 under section 6(A) gave Indian citizenship to all migrants who came to Assam before the midnight of March 24, 1971. The date March 24, 1971, was decided because the Bangladesh Liberation war started on March 25, 1971.4 The first draft of the NRC bore the names of 19 million Indian citizens living in Assam, out of 32.9millions who had submitted their documents to assert their citizenship. 5 The historical backdrop of Muslims in Assam goes back to the eighth century when, as indicated by a few researchers, Turks and Arab brokers and mariners went to the Brahmaputra Valley and settled in the Darrang district. 6 After the British attached Assam as a component of the Bengal Presidency in 1826, vagrant workers were acquired from focal India to work in tea manors and this required the generatio n of more nourishment, which the nearby populace couldn't oversee alone. Besides, a spurt popular in the jute advertise required an expansion in jute development in Bengal, which again was unrealistic. Both these reasons were behind the movement of Muslim agriculturists of East Bengal to Assam, first in little numbers. Be that as it may, by the turn of the twentieth century, there was a colossal flood of transients to the scorches, or waterway islands, in lower Assam from Bogra, Rangpur, Pabna and Mymensingh locale of Bengal.

4

https://thelogicalindian.com/awareness/national-register-of-citizens/ https://thediplomat.com/2018/08/indias -national-register-of-citizens-and-assams-dilemma/ 6 https://economictimes.indiatimes.com/news/politics -and-nation/national-register-of-citizens-in-assam-issue-ofillegal-foreigners5

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The 1911 Census demonstrated that the quantity of transients had shot up to more than 1, 18,000 in Goalpara region, about a fifth of the region's populace, from 49,000 of every 1891. The all out number of Muslim settlers in the Brahmaputra valley in 1911 was 2, 58,000. After the greater part of the cultivable land had been possessed in Goalpara, they moved to differe nt parts of lower Assam. Therefore, in the initial three many years of the century, the extent of Muslim populace in Assam had shot up from 13.6% to 22.8%, causing much distress among the local inhabita nts. During the 1920s, the 'Line System' had been presented, as a feature of the British separation and principle strategy, under which a nonexistent line was attracted to isolate workers from the indigenous tribal’s. However, in 1939 the commonplace government headed by Syed Muhammad Saadullah welcomed East Bengali Muslims to settle in Assam under a 'Develop More Food' plot — too much resistance and analysis. Between 1985 and July 2012, over 55,000 people, and not lakh as AASU and similar organisations claimed, were identified as foreigne rs by tribunals under Illegal Migrants (Determination under Tribunals) Act, 1983, and Foreigners Tribunals, but only 2,442 were deported or pushed back. 7 NEED OF NRC8 The prime explanation behind the usage of NRC was to identify and kill unlawful outsiders. In any case, in this procedure, numerous other individuals because of a few inconsistencies have not been enrolled in the refreshed draft of NRC. For example, because of absence of some report or false notions in a record, numerous individuals from a solitary family have not been incorporated into the refreshed rundown. A few people have additionally battled that as surge is a yearly calamity in the district of Brahmaputra, there has been loss of archives, land shifts, change of location and so on. Because of such reasons, numerous individuals have fallen under the 40 lakh individuals. NRC UPDATING9 Following, the tripartite gathering between the Center, Assam Government and All Assam Students' Union, it was chosen that NRC ought to be refreshed as it was very requested since

7 https://economictimes.indiatimes.com/news/politics -and-nation/national-register-of-citizens-in-assam-issue-of-

illegal-foreigners8 https://blog.ipleaders.in/nrc-assam/ 9 https://blog.ipleaders.in/nrc-assam/

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decades. The issue got even dull, when in 2009, Assam Public Works (NGO), recorded a writ request of to erase every unlawful transient's names from voter records in Assam as they can't be considered as an Indian Citizen in any case for such a sacred right. Along these lines, the Supreme Court additionally got associated with it. To ‘detect’ the illegal migrants following acts are used1. The Foreigner’s Act, 1946 along with the Foreigner’s (Tribunal) Order, 1946. 2. The passport (Entry into India) Act, 1920. 3. Passport Act, 1967. 4. The Citizenship Act, 1955. In the updated NRC, the following were elected to be enlisted in the updated one, which are: 1. People whose names are mentioned on the NRC 1951 2. People whose names are on any voter list in Assam up to March 24, 1971. 3. All Indian Citizens who moved to Assam after March 24, 1971 4. Descendants of the above mentioned 5. People originally from Bangladesh who registered themselves with the 6. Foreigner Regional Registration Office ( FRRO) between January 1, 1966, to March 24, 1971, and were declared as Indian citizens by the Foreigner Tribunal 7. People who can provide admissible documents declaring themselves in a legal way citizen of India. On July 30, 2018, this register was updated as per the provision of The Citizenship Act, 1955 and The Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003. However, out of the 3.9 crore (approx), people had applied; only 2.9 crore of them were registered in the final draft or the updated NRC. This has led to leaving out about 40 lakh of people of Assam from the register, which is why now there is a huge chaos.

LEGAL STATUS OF PERSONS (NON-ASSAMESE)10

10

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The Chief Minister of Assam has stated that the people who are not in the list of the NRC would not be ‘eligible’ to receive fundamental rights but, in the eyes of the law, they are still protected with their fundamental rights as they are divided in two, those which are exclusive ly for the citizens of India and those which are for all the people in India. As indicated by Article 14 of the Indian Constitution, it expresses that "The State will not deny to any individual balance under the watchful eye of the law and equivalent assurance of laws inside the domain of India". Likewise, Article 20, 21,21A and so on which is accessible for "all people" in regard of conviction for offenses, Right to Life, Education, Religion, and so on. Similarly, Article 32 accessible for all people in India with respect to the requirement of Fundamental Rights by setting up the Supreme Court as the Court of First Instance. Be that as it may, these people won't have the directly to cast a ballot as it is accessible for the natives of India. The rest of the general population would be formally announced to be non-subjects however and be perceived as non-native. As indicated by Clause 5.4 of the Assam Accord, the general population who have been identified as outsiders all the while, will be erased from the appointive comes in power and such individual needs to enrol themselves before the Registration Officers of their separate locale as per the arrangements of the Registration of Foreigners Act, 1939 and the Registratio n of Foreigners Rules, 1939." LEGAL PROVISIONS11 An “illegal migrant”, according to the Citizenship Act, 1955, means a foreigner who has entered India: (i) Without a valid passport or other travel documents or (ii) With a valid passport or other travel documents but remains therein beyond the permitted period of time. Articles 5-9 of the Indian Constitution deal with citizenship. While Article 10 guarantees the continuance of citizenship, Article 11 grants Parliament the right to regulate citizenship.12

11

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12 https://www.firstpost.com/india/assam-nrc-proof-of-citizenship-demands-in-the-state-definition-of-illegal-

migrant-reveal-

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Lists were maintained in 1951 during the process of immigration was taking place in Assam. To apply for incorporation in the NRC, one's name or one's progenitor's name must be in the 1951 NRC or in any voter list up to the midnight of March 24, 1971, the cut-off date settled upon in the Assam Accord. On the off chance that the candidate's precursor's name is on any of these rundowns, the candidate should demonstrate his relationship to his predecessor by delivering his board or college endorsement, proportion card or some other legitimate ly adequate report. An Indian subject from another state who moved to Assam after the predetermined date isn't qualified for incorporation in the NRC however he can keep on casting a ballot. In addition, according to Section 6A of the Citizenship Act, 1955 the individuals who originated from Bangladesh somewhere in the range of 1966 and 1971 should enlist themselves with the Foreigners Regional Registration Officer, and will be incorporated into the NRC, yet won't have casting a ballot rights for a long time from the date of enrolment. Section 6A and Section 3 of the Act, which gives citizenship by birth in contradiction of the Assam Accord; have been tested in the Supreme Court. Individuals who have been announced doubtful can also apply but their names will be included only after being cleared by the Foreigners Tribunal.13 ROLE OF APEX COURT14 Supreme Court of India played a vital role in the immigration problem by delivering certain judgments to solve the issues among the people of Assam and illegal immigrants. Like, Supreme Court decided to monitor the process of updating the NRC (the first NRC having been prepared in Assam in 1952 based on the 1951 electoral rolls) which was not a sudden development. It was the culmination of several judgements of the apex court relating to the problem of illegal immigration into Assam. Supreme Court given in July 2005 when it struck down the contentious illegal migrants (Determination by Tribunals) Act, 1983. This Act had made the detection of illegal migrants next to impossible by putting the onus of proving someone as an illegal immigrant on any Indian citizen residing within three kilometres of the residence of the person against whom the allegation has been made. While striking down the IMDT Act as ulta vires of the Constitution of India, the Supreme Court stated that it had

13

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'created the biggest hurdle and (was) the main impediment or barrier for the identification and deportation of illegal migrants'. A three-judge bench comprising Chief Justice R.C. Lahoti, Justice G.P. Mathur and Justice P.K. Balasubramanyan, which struck down the IMDT Act as unconstitutional, observed: 'The presence of such a large number of illegal migrants from Bangladesh, which runs into millions, is in fact an aggression on the State of Assam and has also contributed significantly in causing serious internal disturbances in the shape of insurgency of alarming proportions.' The Bench pointed out that the IMDT Act and Rules had been so made that innumerable and insurmountable difficulties were created in identification and deportation of illegal migrants and that though enquiries were initiated in 3, 10,759 cases under the IMDT Act, only 10,015 persons were declared illegal migrants and only 1,481 illegal migrants were physically expelled up to April 30, 2000. Significantly, the Bench noted that 'the IMDT Act and the Rules clearly negate the constitutional mandate contained in Article 355 of the constitution, where a duty has been cast upon the Union of India to protect every State against external aggression and interna l disturbance. The IMDT Act, which contravenes Article 355 of the constitution is, therefore, wholly unconstitutional and must be struck down'. 15 CURRENT SCENARIO OF NRC UPDATING The first draft, was released on January 1, 2018 with 1.9 crore names. The second and final draft of Assam's National Register of Citizens (NRC) published on July 30 includes about 2.9 crore names as opposed to 1.9 crore of the first draft. The process of publishing the final draft was carried out in cooperation with the Registrar General of India, along with the central and the state government officials, under the direct supervision of the Supreme Court. Assam is the first Indian state where the NRC is being updated after 1951, with March 24, 1971 as the cutoff date, to include names of "genuine Indian citizens". Both the central and the state governments have extended their support from the very beginning of the NRC publicatio n exercise.16

15 https://m.dailyhunt.in/news/bangladesh/english/the+wire+english-epaper-

wireng/why+many+in+assam+see+the+national+register+of+citizens+ 16 https://www.indiatoday.in/education-today/gk-current-affairs/story/assam-nrc-national-register-of-citizenssecond-final-draft

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Several other modes have been provided since 2018 to approach the NRC site and to find the registered names uploaded over there. Toll free number has been provided to applicants from Assam and outside Assam by referring to their 21 digit Application Receipt Number (ARN). There are some options which the government may consider, though these are fraught with problems and likely to prove quite difficult, if not impossible, to implement. The first option is to deport the illegal migrants to Bangladesh. This course of action is, however, a non-starter given that Bangladesh till date has refused to even acknowledge that its citize ns have migrated illegally into India, let alone expressing any indication that it would consider taking them back. The second option is to allow the illegal migrants to reside in the countr y on humanitarian grounds, but after stripping them of all citizenship rights. The governme nt can grant them a modified version of work permit and let them stay on as guest workers, albeit in different states. For this, the Union government will have to enter into negotiatio ns with state governments that are willing to accept these illegal migrants. On their part, state governments have to maintain a proper database and a strict vigil on these illegal migr a nts lest they disappear without a trace. The third option is to grant the proclaimed ille ga l migrants amnesty and, after a process of naturalisation, Indian citizenship. Such an option would not, however, be welcomed by the people of Assam who are at present protestin g against the Citizenship Amendment Bill of 2016, which proposes to grant citizenship to all refugees (except Muslims) who have fled religious persecution in their home countries. CONCLUSION This crisis was going since 1951 in the State of Assam, to maintain and update the NRC became the most prime issue to resolve. It was done in respect of each village showing the houses or holdings in a serial order and indicating against each house or holding the number and names of persons. This was done by copying out in registers the particulars recorded during the Census done in 1951 and was prepared under a directive from the Ministry of Home affairs (MHA). Meanwhile, being focused on the issues and obstacle created by the illegal immigrants came from Bangladesh the Govt. Of Assam took initiative to maintain the National Register of Citizens. The prime explanation behind the usage of NRC was to identify and kill unlawful outsiders. In the eyes of the law, they are still protected with their fundamental rights as they are divided in two, those which are exclusively for the citizens of India and those which are for all the people in India.

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As indicated by Article 14 of the Indian Constitution, it expresses that "The State will not deny to any individual balance under the watchful eye of the law and equivalent assurance of laws inside the domain of India". Despite these reactions, the updating of the NRC is a positive advance in various ways. Right off the bat, when the draft is finished, it will give a genuine ly necessary point of view on the degree of unlawful movement that has occurred into Assam specifically and the nation as a rule. Since the times of the Assam disturbance against illic it Bangladeshi migrants, there have been wild hypotheses about their real number. The vulnerability about the quantity of unlawful vagrants was intensified by the nonattendance of authority gauges. This enabled ideological groups to frequently overstate the numbers, spellbind voters and adventure the issue for constituent increases. A refreshed NRC is probably going to put a conclusion to such hypotheses and give a checked dataset to do important discussions and actualize aligned arrangement measures. Secondly, the issue of unlawful vagrants has remained an emotive one in Assam since freedom. It had even made a disparity of assessment between progressive focal and state administrations as the previous kept on being accommodative towards transients depicting the mass movement from East Pakistan as "homecoming". Thirdly, the production of a refreshed NRC is required to stop future vagrants from Banglades h from entering Assam unlawfully. The distribution of the draft NRC has just made discernme nt that remaining in Assam without legitimate documentation will draw in confinement/impr iso n term and extradition. All the more vitally, illicit vagrants may think that it’s significa ntly progressively hard to get Indian character reports and profit every one of the rights and advantages because of every single Indian national. To wrap things up, the consideration of their names in the NRC will give break to each one of those Bengali talking individuals in Assam who have been, up to this point, suspected as being Bangladeshis.

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UNAVAILING ACCORD: A SIFT INTO THE ASSAMESE IMMIGRATION -

Vasudha Chadha and Mridul Dhingra

ABSTRACT The exclusion of 40 lakh people from the final draft list of the recent National Register of Citizens exercise in Assam has implanted numerous doubts in the minds of the citizens. Being a programme initiated years back during the Congress regime, it has not gained any firm authentication as well as the quality of the programme is also dicey. Where on one hand, deportation to Bangladesh is considered as an option, on the other hand, there is a possibility of genuine Indian citizens being targeted wrongly. The question that arises here is of the status of those deemed to be foreigners. These foreigners who have spent generations in a country which they called their own would have to face a sudden alienation, no affirmation of their security and no one to guarantee of what is to become of their future. The next area of concern is the selection of those people who were termed as foreigners by the statutory Foreigners’ Tribunals in Assam. These people have been kept as detainees in detention camps which are literally carved out of jails and have been there for as long as a decade. The treatment they are given there is yet unknown to the masses and is reportedly really appalling with almost no prospect of release. This research paper shall highlight the current status and representation of those who have been detained and are enlisted as the illegal immigrants. Based on the timeline of the enforceme nt of this programme, various decisions regarding the same shall be discussed in this paper. The paper shall also discuss the origin of this programme for a better understanding of its current situation. The validity of the decisions made in regard of this programme shall be put forward and analyzed for the consequences they can have in the future. It shall be seen further in the paper if the government has been successful in maintaining proper transparency and in providing much needed legal advice and support to the detainers who not only are economica lly backward or have lack of social and political capital; but also are not educated and aware of their legal representation and aids which can be provided to them. In the end, we shall be able to recognize the terms and challenges faced by the enforcement of this programme. The conformity of this programme shall be put forward to the scrutiny of whether being a formulation done under the scope of humane democracy or not. Through this,

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The Authors are Students of Vivekananda Institute of Professional Studies, IP University.

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one can easily make out if there are establishments of transparency in the procedures and the right to life and liberty for the detainees. Further, we shall also look into this matter under the scope of international law for immigrants and whether its guidelines have been followed under this programme or not. INTRODUCTION Back in 1985, the Rajiv Gandhi government made it possible for the leaders of the Assam Movement to join hands with the Union government and sign an accord enforcing full citizenship and the right to vote for the foreigners who had entered Assam between 1951 and 1961. While those who entered after 1971 were to be deported back to Bangladesh, the ones entering between 1961 to 1971 were given no voting rights for a span of ten years but were granted all the other citizenship rights. Finally, after decades of turmoil, the National Register of Citizens got the mandate of the law as the final draft was readied on 31 st July, 2018. This draft has created more confusion than ease. There are many discrepancies and faults related to the inaccuracies in the records required to establish the identity of the citizens. Where one can find spelling errors in the names enlisted, there are many cases where the children’s names are on the list but not of their parents’ or vice versa. It is estimated that there are around forty lakh illegal immigrants in Assam from Bangladesh but this data is also doubtful, reason being, an improvement in the domestic economy of Bangladesh resulting into a changing pattern of out migration from Bangladesh. Consequences of this NRC draft involve the deportation of those who are not listed on this draft but as of now, there is no deportation agreement between India and Bangladesh regarding this matter. On the other hand, detention camps were proposed for these illegal foreigners but the issue of this proposal is in itself a big failure in regards to the assertion of arbitrariness and could lead to national as well as international opprobrium. In this paper, we shall be able to recognize the series of policies which lead to the issue of this NRC and also the current situation of the illegal immigrants and the consequences they are facing post the issue of this draft. Section 1 deals with a brief history of the Assam Accord signed back in 1985, Section 2 emphasizes the consequences of the illegal migration in Assam, Section 3 focuses on the consequences of the NRC report of 2018 and in Section 4, we conclude our analysis and put forward a futuristic perspective of this enforcement. 1.

THE ASSAM ACCORD 210

The Assam agitation dates back to the times of post independence era when the first Chief Minister of Assam, Gopinath Bordoloi suggested the then Prime Minister of India, Jawaharlal Nehru to replace the refugees entering Assam to other states of the country as they had already rehabilitated 2.5 lakhs refugees and further immigration would have lead to a tremendous land scarcity for the people who had already been presiding there, practicing cultivation. But thus plea was subdued by the prime minister who declared that all the refugees had to be provided with land in order to procure financial help from the Union government. Thus, there was a lack of importance given to the proposal of the state government for issuing a permit to have a check on the migrants. Later in 1964, the Prevention of Infiltration from Pakistan Scheme (PIP) was enforced in order to check and deport the illegal immigrants from East Pakistan. This scheme lasted till 1969, when the Congress ended it in order to secure the vote bank for general elections. The consequence of this abrupt ending to the scheme lead to the non-existence of the estimate of the refugees and thus no plan could be launched for relocating them in other parts of the country. It was not only the Union government that led to the chaos in Assam but also the state government which complied to sign the Assam Accord in 1985 and which led to a six year long suffrage for the Assamese. This Assam Accord was drafted on 14 th August, 1985 and the then Prime Minister, Rajiv Gandhi, announced it on the Independence Day the same year. There was a lack of a keen eye from the side of the delegates of the state government to observe the barriers that could come in the way of the proper implementation of this agreement between the state and the union government. As was afraid, this agreement couldn’t work out as it was supposed to. One of the reasons can be the non- existence of any certain timeframe for its implementation and this can be evidenced through the implementation of the non mandatory clauses like that of setting up IIT and refinery, rather focusing on clauses which held much more importance. One of such debated clauses was Clause 6, where ‘Assamese people’ should have been replaced with either ‘people of Assam’ or ‘Indian citizens of Assam’, as it provided for the constitutional safeguards. Moreover, it led to a massive influx of population of the migrants. I response to this, Assam governor, Lt. Gen (Retd) SK Sinha submitted a report which was titled as Report on Illega l Migration into Assam to the President on 8 th November, 1998. This report was leaked by the BJP government into the media which ended up in getting BJP to the power. But hardly any difference was seen in the working out of this issue by the BJP government after coming into power as it was done by the Congress earlier. 211

The Illegal Migrants (Determination by Tribunals) Act which was enforced in 1985 to detect the foreign nationals was applicable only in Assam while the whole country had a different law altogether. In the governor’s report, it was stated that this law should be repealed and a new legislation should replace it as it concealed the illegal migrants because of the onus of providing the evidence for the same lying with the government. But the BJP government did not pay any heed to the process of providing preventive infiltration measures. 2.

CONSEQUENCES OF ILLEGAL MIGRATION

Bangladesh faced a high density of population, around 964 per sq. km., according to the 2011 estimates and this was one of the major causes of the immigration to India for grabbing better economic opportunities. But this migration proved to be a lot more devastating for the demographic structure of Assam. The districts which are the most inflicted with the ill consequences of this illegal migration are Dhubri, Goalpara, Barpeta, Morigaon, Nagaon, Dhemaji, Cachar, Karimganj and Hailakand i. According to the data, Assam has faced the worst case scenario when it comes to decadal growth rate of population in any state in India after independence. This has posed a serious threat to the livelihoods of the indigenous people more then those who have migrated here. Other aspects such as housing facilities, sanitation and health have been kept at stake too due to this illegal migration. There has been a major crisis of identity due to this influx of the immigrants. Right from the employment opportunities to the political control, everything has been undermined for the indigenous Assamese. There was a sudden decline in the forest cover under Assam from 39% in 1951-1952 to only 30% now. This land area was impinged by the illegal migrants for the purposes of cultiva tio n as well as housing. There was a major issue regarding the detection of the illegal migrants due to the same langua ge spoken by the immigrants from Bangladesh and the Bengali speaking Muslims of Assam. Thus it became a barrier for the deportation of the correct illegal migrants and not the indige no us people of Assam. Poverty and poor housing facilities had inflicted on much higher terms in Assam due to the illegal migration and thus social exclusion based on the same issues started taking place. There has been an acute financial burden on the state government of Assam for keeping up with the expenditure done on health facilities as well as on the education sector for these illega l migrants. 212

A lot of competition and conflict has taken place regarding the job opportunities that have been displaced from the native people to the immigrants, usually at the times of recession. Due to the population explosion caused by the immigration, there has been a drastic fall in the wage level. All Assam Gana Sangram Parishad (AAGSP) and All Assam Student’s Union (AASU) led the agitation movement in Assam against the government which proved to be ignorant to respond to the issue of illegal migration. Due to this, there arose a government instability in Assam and also there were a lot of cases of ethnic vehemence and civil disobedience campaigns. The consequence of this agitation came out to be the Assam Accord. There are many illegal voters in Assam who’ve got their names on the voting list so as to show that they are the legal citizens of the state. These illegal voters prove to be a potential vote bank for the leaders of the political parties in Assam. To correspond to this, the initiative of the National Register of Citizens has been generated recently, so as to detect who all are the illega l immigrants and thus are the illegal voters in Assam. Nevertheless, the success rate of this initiative shall lie on the will of the political parties. Assam has also become a terrorist prone area due to this illegal migration. This is due to the entrance of the militants related to Pakistan’s ISI and are carrying out terrorist activities in Assam. 3. NRC REPORT AND ITS CONSEQUENCES The first draft of the NRC was done in 1951, the first census of india. But since then, there have been numerous immigrants coming to Assam and to keep a check on them, this register is being updated to keep the names of only those who were included in the NRC till 24th March, 1971 or those who could prove their presence in Assam of any pat of India on or before 24th March, 1971. Under the monitoring of the Supreme Court of India, this updating of the records started taking place in 2013. A part NRC Draft was released on 31st December, 2017 and afterwards, the complete draft NRC was released on 30 th July, 2018. The process of NRC Update is divided into the following phases: - Publication of Legacy Data - Distribution & Receipt of Application Form - Verification Process

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- Publication of Part Draft NRC - Publication of Complete Draft NRC - Receipt and disposal of Claims and Objection - Publication of Final NRC According to the official estimates, 1.25 lakh voters have been alleged as ‘doubtful voters’. Thousands are being scanned under the Foreigners Tribunals and the Assam Border Police. These people can appeal to the one-judge divisional bench of Guwahati High Court and if their appeals stand rejected, they have to be declared as D voters and a ‘D’ shall be marked against their names in the electoral list. Such D voters are then termed as foreigners and are sent off to jails which are often termed as detention centers. In these detention centers, these ‘foreigners’ have no prison rights even though these doubtful voters are justifiably under the inspection due to suspected official faults in their documentations. Detention Centers As per the government’s orders and the recent NRC report, those all who have been termed as the doubtful voters are to be detained in the detention camps till they’ve been granted clearance by the courts, as these people tend to disappear. Stricter investigations have been called for by the state government to be performed by the border police so that only genuine cases are presented in the tribunals. As said by Darapuri, “deportation of such a large number of people appears to be practica lly impossible and if it happens, it will create a crisis rather anarchy”. This statement is evidenced through the fact that in the report nowhere it has been mentioned that the doubtful voters would be given a month’s time to appeal, as stated in the NRC procedure. Rather, the report states that such people shall be “rendered stateless” after 30 th July 2018. In order to streamline the process of deportation, it was advised by the Supreme Court to the Indian government to engage with Bangladesh but till yet, nothing has been done. The Complete Draft NRC included a total number of 2,89,83,677 people, leaving 40,70,707 people out of the inclusion or ineligible. Claim can be made by those whose names were not included in the final draft of the NRC and this has to be done within a prescribed time period at the NSK where the Application Form 214

was submitted. On the other hand, if someone has an issue with the inclusion of certain names that have been included in the NRC, can file before the LRCR regarding the same. A person may also file an application regarding the correction made in their name or any other person’s name before the LRCR. This draft has led to a lot of havoc in the whole country and minimizing its effects through detention camps stands nowhere near the solution. This deep rooted problem can be resolved through other measures as well which are less confusing and can be implemented right away. One of these measures can be the strengthening of the border fencing and the water wing of the BSF there should also be strengthened. Multipurpose photo identity cards should be provided to the nationals who are residing at the border districts of India so as to curb the issue of illegal migration and verification could be done on quite easier terms that way. O nly a proper implementation of the latest NRC draft can lead to clearing up of the much created confusio n regarding the issue of who has to be detained and who has to be let free; and if deportation has to take place, then it should be done with proper arrangements and without any delays. This would ensure the security to the indigenous people and they shall also enjoy the resources that they own in full terms.

4.

CONCLUSION

It is obvious that there cannot be a miraculous solution to a historical problem overnight. But there has to be given stress on the devastating consequences of the large scale immigra tio n from Bangladesh into Assam, which is not only a threat to the state of Assam but also to the whole country. There has paved in a notion of secularism regarding the entrance of these illega l migrants. But one has to understand the crux of the situation and also the true meaning of secularism should not be misconceived. This is because this problem is now not only a regional problem nut it has come into the limelight of the whole country as these migrants have now spread to almost all parts of the country such as Rajasthan, Madhya Pradesh, Maharashtra, Delhi and so on. This invasion of Assam can even cost it its lower districts which are vital geo strategically. This is because in these districts, there is a majority if the Muslims because of the influx from Bangladesh. If nothing is done and this migration trend continues to take place there, then that time is not far away when these districts get a merger with Banglades h. Therefore, it is really important to handle this issue with great emergency so as to save the Assamese people from losing their land and undue injustices that are inflicted upon them due 215

to the faults in the government’s draft and policies. Also, care has to be taken while initia ting the process of deporting because there are numerous people who have spent generations here being unaware of their rights and their actual citizenship. It should be seen that whatever policies are enforced from now on lead to a rigid destination and not dissolve under the influence of any political agendas.

REFERENCES 1. Hazarika S (1994) Strangers of the mist. Penguin Books, New Delhi, India. 2. Baruah S (1999) India against itself: Assam and the politics of nationality. Oxford University Press, New Delhi, India. 3. (2011) Assam population census data 2011. 4. Goswami U (2007) Internal displacement, migration, and policy in northeastern India. 5. www.firstpost.com 6. The New Indian Express 7. www.thewire.in 8. www.scroll.in 9. www.indianexpress.com 10. Das, Susanta K. Spotlight on Assam. Maharashtra: Premier Book Service, 1989

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