Why Assam NRC draft has thrown up a citizenship conundrum

The NRC has put the fate of 40 lakh people in the balance.

 |  5-minute read |   06-08-2018
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On July 30, an announcement by Prateek Hajela, coordinator for the National Register of Citizens (NRC) in Assam, declared that of the 32,9,91,348 (32.9 million) people who had applied, 28,9,83,677 (28.9 million) had been found eligible for inclusion as Indian citizens,  while some 40,007,707 (4 million) had been left out.

While the process goes on, these people will live in uncertainty.While the process of drafting lists goes on, millions of people live in uncertainty. (Photo credit: PTI)

Both Union Home Minister Rajnath Singh and the Supreme Court asserted that this list was not final, and conclusions at this stage were premature. Joint Secretary Satyendra Garg, of the home ministry, gave a smug assurance that while a reference would not be made to the Foreigners Tribunal, no one would be sent to a detention camp.

According to Hajela, of the 4 million (40 lakh) whose name did not feature on the list, only 2.48 lakh applications had been kept on hold — as "doubtful voters" and their siblings and descendants.

What hope is there them?

The process is always the punishment. The ones left out can now go to the NRC Seva Kendra from August 7, so that claims and objection can be heard from August 30 to September 28.

While the process goes on, these people will live in uncertainty. If not recognised as Indians, who are they? Will they be deported? Where to? Will that state accept them? Will India push them out? This is a problem of immense proportions — both in human terms and in terms of legalities.

Legal origins

In 1950, India had a citizenship regime that included those born here, those residents since 1945, and Pakistan-related migrants. The Citizenship Act 1955 consecrated the international law principles of birth, descent, naturalisation, and added NRIs as a qualified exception to dual citizenship.

India partly joined the Bangladesh war (1971) because of the influx of refugees. There were no real repatriation terms.

The next crisis in Assam was pushed by the All Assam Students Union (AASU) protesting against "foreigners", resulting in establishing a tribunal of 1983 and later an Accord of August 15, 1985, between AASU-Asom Gana Sangram Parishad (AAGSP) and the central and state governments. As a result, Section 6A was inserted in the Citizenship Act. According to this new provision, those who came to Assam before January 1, 1966 and were in the electoral rolls for the 1967 elections were Indian citizens, while those who came between 1966 and March 25, 1971 would not get voting rights for another 10 years.

The Supreme Court’s Sonowal cases (2005, 2007) made a distinct reversal. Instead of the state proving that a person was an illegal immigrant, the onus now lay on the supposed immigrants to prove they were legal citizens. In my view, these judgments were wrong.

The entire controversy in Assam today has arisen out of agitational politics resulting in legal change, and riots in 2012 and 2014. Can such agitations govern our citizenship policy and international relations?

India needs to find a solution to the issue keeping in mind the human rights dimensions.  India needs to find a solution to the issue keeping in mind the human rights dimensions. (Photo: PTI)

In 2015, the Supreme Court also referred to a larger bench questions on the validity of adding Section 6A to the Citizenship Act, including an exploration of the right to conserve a state’s culture in this context.

If the validity of Section 6A on Assam citizenship is to be decided by a larger bench on this and many other weighty legal grounds, should not any push-out drive wait? Will CJI Misra constitute this bench? Or will it be constituted by the next CJI, Justice Gogoi? Who should be made the next CJI depends on whether the present incumbent (CJI Misra) recommends it or not? Another controversy kept simmering.

Religious angle

The citizenship (Amendment) Bill 2016 — seeminlgy blatantly communal, as it prescribes that only Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from minority communities in Afghanistan, Bangladesh and Pakistan will not be treated as illegal immigrants — was passed in the Lok Sabha recently. Who is missing? Muslims!

Arun Jaitley has warned Congress president Rahul Gandhi and West Bengal chief minister Mamata Banerjee that sovereignty and citizenship are the "soul of India", and not imported vote banks.

The soul of India is justice, not motivated prejudice.

Both in this case and in that of the Rohingyas, the persons affected are Muslims. The BJP badly wants dominance in the North East and is going for this with its one-dimensional policy. The ultimate target is to oppress Muslims in every which way for the Hindu vote. Mamata Banerjee, through her statements, has been providing a humane dimension, even if it means facing trouble in the elections. Of course, she may be helpless. Once the Centre decides these cases, the problem will start, not stop.

Human rights

We are faced with a human problem, with families being torn apart. In 2018, the cut-off dates decided for citizenship in 1965 and 1971 are out of date. In 2004, the Parliament was told that the number of illegal Bangladeshis in India as on December 31, 2001 was 1.20 crore, with 50 lakh in Assam. How have the figures increased so drastically now? It is an international problem with repercussions that include potential statelessness for millions.

What are the latest negotiations with Bangladesh? India should come clean on this with a total solution consistent with human rights dimensions, unless it is aping President Donald Trump — who, during his election campaign, wanted to build a wall to keep Mexicans out, and, in now in power, wants to separate families where the children are natural-born citizens of America and the parents are not.

India does not have a recognisable immigration policy under its archaic Foreigners Act 1946, and has a random politically directed refugee policy. Muslims are at the bottom of the ladder. India’s present problem is one of the largest such it has faced, involving the future of 4 million people.

The Accord of 1985 had required that the border with Bangladesh be made more secure. Now, the Supreme Court has directed double-coiled wire fencing on the border. Perhaps, President Trump can advise.

(Courtesy of Mail Today)

Also read: Why is RSS scared of making its stand clear on Sabarimala issue?

Writer

Rajeev Dhavan Rajeev Dhavan

Supreme Court lawyer.

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