As the nationwide protests against the Citizenship Amendment Act (CAA), National Population Register (NPR) and National Register of Citizens (NRC) rage on in India, the streets are abounding with speculations about what the country’s future is going to look like. While the divisive ramifications of the CAA are more or less evident, there is little clarity on what a potential all-India NRC would look like or result in.
But one only has to look to the northeastern state of Assam to grasp the full horror of a headcount project like the NRC. It was only last year November when former Chief Justice of India and one of the two Supreme Court judges that passed the NRC updation order in 2014, Ranjan Gogoi, said that the Assam NRC was a “base document for the future”. The repeated exhortations for a nationwide NRC by the ruling Bharatiya Janata Party (BJP) supremo and Union home minister Amit Shah show that Gogoi wasn’t wrong.
Indeed, the NRC updation process in Assam offers the rest of the country a ready prototype or pilot of what an all-India NRC could look or ‘feel’ like. Not just that, Assam also foretells the devious consequences of using specialised, and rather arbitrary, citizenship determination frameworks and custodial measures to enforce citizenship norms.
In Assam, the NRC updation exercise was designed to filter out a specific set of non-citizens, or “illegal immigrants”, from the total resident pool. In line with the Assam Accord (1985) and Section 6A of the Citizenship Act 1955, the process was aimed at effectively denationalising everyone who came to Assam from Bangladesh after the midnight of 24 March 1971 -- the day East Pakistan became Bangladesh. This was done through a rigorous yet torturous document-based application process.
The violence of paperwork
The all-India NRC will differ from the Assam NRC in some ways if we are to go by available media reports and informal admissions by the government. First, unlike in Assam, individuals won’t have to line up to submit documents at authorised ‘Seva Kendras’ (service centres) to prove their antecedents in the all-India version. It will flow out of the metadata collected as part of the door-to-door NPR drive. Second, while the Assam NRC had a specific cut-off date, it is not yet clear what the parameters of “doubtful” citizenship or non-citizenship would be in the all-India iteration.
Having said that, the Assam NRC gives us a pointed glimpse into the perils of a document-based enumeration process in a country like India where documentation is often few and far between, especially among the economically, socially and territorially marginalised. According to the National Family Health Survey (NFHS), only 62 percent of the children below five have birth certificates as of 2015-16. The previous decade, as recorded in 2005-06, had a smaller share of certificate-holders, that is 41 percent. Data from the 2011-12 India Human Development Survey (IHDS) also shows that the chance of formalising one’s birth is directly linked to the wealth levels and degree of economic access to parents.
Most importantly, Assam shows us the regressive logical conclusion of the NRC process -- mass denationalisation through arbitrary quasi-judicial processes, followed by statelessness and detention.
As part of the Assam NRC, individuals had to prove that either they or their ancestors lived in Assam before 24 March 1971. To do this, they had to furnish official documents — birth certificates, land records, voting records or proof of mention in the 1951 NRC — issued before midnight of the said date. Those who did not have these documents because they were born after the cut-off date furnished “legacy documents” for their ancestors along with “link documents” to establish a direct familial relationship with them.
Naturally, pulling up such documents from decades past isn’t a cakewalk, even for the relatively well-off sections of the population. For those with meagre resources, generational poverty, and scant knowledge of administrative processes, it was a nightmare. It was all so precarious that one tiny spelling discrepancy in the documents could mean delisting from NRC.
For many, the document submission process was simply a throw of the dice. Furnishing the requisite evidentiary proof does not seem to have guaranteed a place in the NRC.
Take the example of Delbar Hussain, a former sepoy in the Indian Army, who was left out of the final list despite furnishing all the correct documents and being previously declared an Indian citizen by a Foreigner Tribunal (FT). One Mukul Bose from Guwahati failed to feature in the NRC despite submitting the exact same documents as her sister, Shefali Baidya, who found her name in the list.
Mohammad Sanaullah, a retired Kargil war veteran in the Indian Army who was previously declared a foreigner and sent to a detention camp, was also dropped from the final list despite attending a last-minute document verification. Two Members of Legislative Assembly (MLA) from the All India United Democratic Front (AIUDF), Ananta Kumar Malo and Ataur Rahman Majharbhuyan, too failed to find their names on the final list.
Nine-year-old Kulsuna Khatun from Assam’s Baksa district was dropped from the list because the authorities were not convinced with her “link documents”. Thus, while her father found his name in the final NRC, she did not. Strangely, her younger sister who submitted the same set of documents found her name in the list. Hers is one of the many cases of children being dropped from the NRC despite their parents featuring in it. Thanks to a timely intervention by the Supreme Court on 6 January, such disenfranchised minors won’t have to see the four walls of a detention camp. But their formal identities hang in limbo.
The NRC process was also fraught with institutional arbitrariness that ended up causing extreme misery, anxiety and confusion to the poorest. During the week prior to the final list’s release, hundreds of Bengal-origin Muslim families in Lower Assam districts received summons for a second round of re-verification hearings hundreds of kilometres away in Upper Assam, that too at a day’s notice. Not only did this drive the financially distressed families to sell their belongings to pay for the transport to the hearing venues, but three of the vehicles also met with road accidents on their way, injuring many.
The whole last-minute re-verification drive and the time-pressed manner in which it was carried out was in express violation of the NRC’s own Standard Operating Procedure (SOP) and an earlier Supreme Court order that barred such re-verifications. Yet, the authorities went ahead with it without any reprimand by the apex court. One can hardly fathom the chaos and confusion that such undertakings at an all-India level would cause, particularly if the Supreme Court turns its gaze away.
Beyond the NRC
More than the NRC, the ‘Assam story’ is about a peculiar citizenship determination regime that has been operational in the state since the 1960s and could now be extended to the rest of the country. Three key components make up this framework -- Foreigner Tribunals (FT), Doubtful-Voter (D-Voter) system and detention camps.
Fair to say that in combination, they have triggered an unprecedented situation of mass statelessness and disenfranchisement in Assam, stripping hundreds of thousands from their Indian citizenship and throwing them into detention. There really is no equivalent of this anywhere else in the country or even the subcontinent.
Would a potential all-India NRC actually include these components? It is hard to say at the moment, given the limited information made public by the government. But some recent developments indicate that the Assam citizenship determination model — at least the tribunals and camps — would be expanded to the rest of India.
Last year June, the Ministry of Home Affairs, not long after Amit Shah took charge as the home minister, amended the Foreigners (Tribunals) Order 1964 to bring the entire country under its ambit. According to a recent report in The Hindu, two new detention centres are being constructed in Karnataka and Punjab, while sites for three others have been identified in Maharashtra and West Bengal. Four camps are already operational in Delhi, Goa, Rajasthan and Punjab. One standalone mega-size camp is being constructed in western Assam’s Goalpara district.
While nothing has been said of the D-Voter system yet, it is possible that once “doubtful citizens” are sieved out of the NPR across the country, the Election Commission starts disenfranchising these suspects pending final verdicts by FTs.
The FT regime can by itself unleash hell on the population. Once again, Assam shows the way. Last year July, the Assam government submitted in the state Assembly that the tribunals had identified 1,17,164 foreigners since 1985. But these “pseudo-courts” are broken from the middle.
Constituted as quasi-judicial institutions that have the final say on the citizenship of a suspected foreigner, the FTs do not seem to have any legislative basis. According to Article 323 of the Constitution, governments can form tribunals only by an Act of Parliament, that is by legislative action. However, the FTs were created in 1964 through executive action, that is the Foreigners’ (Tribunals) Order. Further, Article 323(b) lists out nine specific categories for which tribunals can be constituted. Citizenship isn’t one of them.
These FTs have come under fire for their arbitrary and opaque character. One commentator labelled them as “kangaroo tribunals”. Noted social activist, Harsh Mander, has called them “nothing more than a hoax”.
“Though technically quasi-judicial bodies, these tribunals, lately, have divorced all the canons of fair trial, almost becoming another arm of the BJP government in Assam. Strangely, the working of these tribunals has been approved by the Supreme Court,” writes Faizan Mustafa, Vice-Chancellor of NALSAR University of Law, Hyderabad.
The FTs have particularly gained notoriety for passing ex-parte verdicts, without hearing the accused. In July 2019, The Wire reported that the tribunals had declared 63,959 persons as foreigners in Assam from 1985 to February 2019 through ex-parte judgments. Basudev Biswas from Nagaon was declared a foreigner by the local FT in 1995 through an ex-parte order. The police arrested him 20 years later in 2015. Biswas died in detention in May 2019. One Puna Munda of Goalpara, belonging to Assam’s Adivasi tea tribe community, was declared a foreigner by FT in 2013 in his absence. He was interned in 2014 and died in detention in 2019. Naresh Koch of Goalpara district was declared a foreigner in an ex-parte order in June 2017 and put in detention soon after. He died due to “health complications” this January.
As if ex-parte orders weren’t bad enough, one tribunal in Morigaon was reportedly found to have been delivering verdicts and disposing of cases for money. It is no less comforting that many of these FTs are manned by personnel with little or no judicial experience. A recent Right to Information (RTI) filing showed that they don’t even have Public Information Officers (PIOs).
The situation is so dire that last year October, the Gauhati High Court pulled up the Morigaon FT for grave anomalies in its judgments, setting aside 57 verdicts and ordering a retrial. However, for the people, fresh trials mean another round of paperwork verification, and many of them had already incurred great financial costs to complete the first round. 85-year old Amjad Ali from Morigaon district is one such person who was first cleared by the local FT but now has to go through the arduous and costly trial once again.
Mohammad Sanaullah, a decorated war veteran in the Indian Army who was declared a foreigner and thrown into a detention camp last year, gave an unenviable description of his time at the camp once released on bail.
“I have served in difficult places such as Imphal in Manipur and Kupwara in Kashmir. But nothing prepared me for life in a detention camp. They call it a centre but it is a prison. Even years of serving in dangerous places and living under difficult circumstances could not prepare me for these 10-odd days at the camp,” he told ThePrint.in.
After a visit to one of the detention camps in Assam in January 2018 as the National Human Rights Commission’s (NHRC) Special Monitor for Minorities, social activist Harsh Mander described them as an “enormous and unending human tragedy” with “extensive flouting of national and international laws”. He described how the detainees were kept in inhumane conditions and deprived of the regular rights and privileges that prisoners must be accorded. He later resigned from the position, complaining of inaction over his report on the Assam camps.
Last November, the Central government told the Parliament that 988 foreigners were lodged in Assam’s detention camps. It also submitted that from 2016 to 13 October 2019, as many as 28 detainees had died in the detention centres or in hospitals. Official records say that all of them perished due to health complications. But clearly, there’s much more to these stories of human degradation that the State wishes not to reveal. In fact, at the very heart of the detention process is the opacity and arbitrariness with which custodial frameworks on citizenship enforcement usually operate. The detention system in the US, managed by the Immigration and Customs Enforcement (ICE), is another case-in-point.
If these camps become an all-India phenomenon, which they very well seem to be, then we can anticipate many more horror stories. Needless to say, the poorest would be the most affected. Add to this the structural, communal discrimination that Muslims and Hindu lower castes would face from the authorities. Given the character of the ruling regime, the detention infrastructure could soon become the face of a new socio-psychological order in India where religious minorities remain in a constant threat of arbitrary internment. Without robust legal safeguards and timely interventions by higher courts, this could tear apart India’s delicate social fabric.
In fact, the only institution that can prevent a repeat of the Assam NRC horror across India is the judiciary. Through sustained interventions — both procedural and humanitarian — India’s courts can hold back the ruling party from implementing its divisive agenda. In a situation otherwise, India’s democracy will continue to regress into a dark place.
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Updated Date: Jan 30, 2020 15:09:59 IST