ISSN : Applied For
Author: Kartik Singh
National Law University Odisha.
THE CONUNDRUM OF SOVEREIGNTY OVER HUMANITY – THE NRC AND THE PROPOSED CITIZENSHIP AMENDMENT BILL
“For the undocumented immigrants, the big priority is just to get out from the shadows, be able to get a driver’s license, buy an airplane ticket and stop worrying about sudden deportation. But for the country as a whole, it’s crucial that everybody have a citizen’s stake in the nation’s welfare”.
~ Gail Collins
Sovereignty is of paramount importance to a country. However, there is a fine line between sovereignty and humanity. This research deals with a topic in which these two terms confront each other. The NRC and the Citizenship Amendment Bill have in the news for a while now and things have become very intense. The issue involved is quite delicate in nature and has the capability to affect the lives of thousands of people. This is where Law and Management come into the picture. The government needs to be very alert to attain a balance between sovereignty and humanity.
The study involves the in-depth analysis of a bunch of legal issues like the implementation of the NRC in Assam, the doubts over the passing of the Citizenship Amendment Bill in the Parliament and international pressure surrounding the whole activity. Since the scheme is yet to be implemented, many permutations and combinations are possible and that’s where the management of the issue becomes extremely important and critical. To give some context to the issue at hand, the background of NRC has been stated and explained as to why there is a need for a scheme to be implemented in the state of Assam. Further, the Citizenship Amendment Bill is also closely related to the NRC but is in some contradiction with the objectives sought to be achieved by the NRC process, therefore, that section has also been given due attention. Finally, the author has inscribed his own opinion on the said matter and the controversy around the proposed Citizenship Amendment Bill.
India, over the years, has witnessed the influx of many illegal immigrants into its territory for various reasons. People cross the border illegally in search of employment, food, shelter and in many cases to escape persecution in their own country. Whatever the case may be, the sovereignty of the country is compromised as a result. The demographic situation of various Indian states has been affected because of the influx of many illegal immigrants especially in the north-eastern states like Assam and Tripura. To weed these immigrants out, the National Register of Citizens (NRC) has been introduced in the state of Assam. The demographic conditions as stated above has changed significantly since the entry of the illegal immigrants and the natives or the indigenous people who were once a majority in their state, are now reduced to a minority.
The political arena has also been influenced as the natives have complained that these illegal immigrants are illegally taking part in the electoral process and thus the political environment has seen a drastic shift. These illegal immigrants have also been enjoying the concessions given by the government which is primarily meant for the indigenous people. Clearly, the indigenous people are at the receiving end because their share of the resources is now being consumed by the outsiders.
It is clearly visible how much the conditions have changed. It is a serious matter and a challenge for the government to resolve this problem as soon as possible. Hence, the NRC has been introduced to differentiate between the Indians and the illegal immigrants. The NRC contains the names of the people who are Indians and have been living in India. However, it is to be noted that the NRC is not applicable to the whole of India. Until now, the NRC has only been implemented in the north-eastern state of Assam where the influx of immigrants is of grave nature, particularly from Bangladesh.
The NRC has been prepared on the basis of an extensive survey done by the government officials where the people are required to show certain documents to prove their citizenship. People who fail to show these documents will be termed as illegal immigrants and will have to face legal consequences. The names of the people who are living in Assam but their name is not on the NRC list means they have migrated illegally into India and possibly they might get deported back to Bangladesh. However, the Supreme Court has given these people another opportunity to prove their citizenship which has been discussed later in this study.
The Supreme Court ordered the Central government to prepare the NRC draft last year taking note of the gravity of the matter. However, this is not the first time the NRC is being prepared in Assam. A similar survey was done in the year 1951 where the NRC was prepared. So, this is the second time the NRC will take place. However, the seriousness of the issue is much greater now as compared to the NRC of 1951 as many changes have taken place over the years, both in the political and demographic arena. Hence, it is the seriousness of the issue which stands out and has forced the Supreme Court of India to intervene in the matter.
This study deals with the history and purpose behind the NRC along with several advancements which have taken place over the years in the state of Assam which have contributed to the implementation of NRC in the state. The current position along with the criticisms has also been thoroughly discussed. In addition to this, international law with respect to refugees and immigrants has also been stated and finally, the future of NRC in India has also been looked upon.
- National Register of Citizens, 1951
The NRC has a history to it. It is not a new concept in India and has been applied in Assam before as well. Assam has been facing the problem of illegal immigration from the earliest times. There were several agitations by the people demanding the deportation of the illegal immigrants. They demanded that the detection of ‘foreign nationals’ should be on the basis of National Register of Citizens, 1951 and the Voters’ list of 1952. The Government of India realized the seriousness of the situation and conducted the first NRC in the year 1951. However, the NRC suffered from many deformities and its implementation was not quite successful. The common people were the ones who suffered here as a result of several deformities.
Firstly, the NRC prepared by the Government of India was not a public document, rather a secret administrative document, therefore, it wasn’t allowed for inspection by a common person or any other person concerned thereof. The NRC was prepared by the census enumerators from the census slips of 1951. As it was not possible to hand-sort for house slips which relate to individuals, the National Register of Citizens giving details of the individuals arranged by households was utilized for sorting and tabulating certain characteristics of the households like their size, ordinary structure, and composition. Thus, the NRC did not include the names of all the members of a family.
In addition to this deformity, the basis of NRC was solely based on the information collected through the census and the enumerators were given 20 days to complete the work. If due to a mistake on part of the enumerator, a person’s name was omitted, then his name was excluded from the NRC draft as well. The person wasn’t given any opportunity to get enlisted in the NRC subsequently. This was a serious drawback of the NRC of 1951. A person was also not allowed to raise any objection about his name being missing from the NRC list. Hence, it rested totally upon the whims of the enumerators resulting in a completely one-sided affair. The person was left totally helpless, thrown down the barrel and had to face the legal consequences. The genuine Indian people involved in this case faced a lot of difficulties in dealing with the legal system and had suffered mental agony.
The Guwahati High Court, later on, took note of the obscurities of the NRC and the difficulties faced by the genuine Indian people meddled in this situation and held that the National Register of Citizens, 1951 cannot be used as evidence in a court of law under the census rules and for other reasons. It stated that it was highly unfair towards the general people and they cannot be made to face legal sanctions just because of a mistake on part of the enumerator. The fact that people were not allowed to inspect the document meant that it lacked transparency and hence, the NRC cannot be used as evidence in a court of law or any tribunal for that matter.
- Demographic Change in Assam
Meanwhile, the influx of Bangladeshi immigrants continued into the territory of India, particularly Assam, the native people of Assam feared that this immigration can have a drastic effect on the demographic conditions of the state, and that’s what happened. With the entry of more and more people into the state, the population of Assam grew at a tremendous rate. The Muslim population of the state also increased rapidly. As a result, the indigenous people who were once a majority in the state subsequently became a minority. As per the official stats, the population of Assam grew by 35% between 1951-61 and again by 36% in 1961-71. What is more astonishing is that the country’s national growth at that time was around 22%. This itself tells a story. There is no doubt that Bangladeshi’s were sneaking illegally into Assam and that too in large numbers. The natives were highly upset with what was going on and several protests and agitations took place demanding the issue to be resolved as quickly as possible.
However, not only the demographic conditions changed in Assam, but the political conditions also changed. It was alleged that the Bangladeshi’s were somehow voting illegally and this affected the political environment of Assam. Voter numbers in Assam grew by more than 50 percent in less than a decade from 5,701,805 in 1970 to 8,537,493 in 1979 triggered a six-year-long agitation against illegal infiltrators. This sudden surge was also a consequence of the 1971 war which forced massive influx from East Pakistan (now Bangladesh) to various parts of India, mainly Assam. It was evident that the foreigners were the ones who were now starting to dictate the political results in Assam.
With all these factors combined, the demands of the agitation leaders grew and the movement now became even more serious. Protests and agitation movements were now being held regularly along with several clashes among the Hindus and Muslims which severely affected the tranquillity of Assam. The local people of Assam provided their full support to the leaders of the agitation and participated in the movement in large numbers. The government was now under huge pressure to act towards pacifying the issue. All these factors led to the signing of the Assam Accord in the year 1985.
- Assam Accord 1985
The Assam Accord brought an end to all protests and strikes relating to the influx of the illegal immigrants or the foreigners. Assam saw many strikes and gatherings prior to the signing of the Assam Accord. It all started in 1979 when the All Assam Students Union organized a twelve-hour state-wide strike demanding the deportation and disenfranchisement of all foreigners. This strike was soon followed by the formation of the Assam Gana Sangam Parishad (AGSP) to popularise this movement. In the coming months, this movement grew rapidly and protests started to happen more often.
Between 1980 and 1982, close to 23 rounds of negotiations took place between the movement’s leaders and the central government. Even though the Assam movement had sufficient support, there were many against it as well, considering the size of the immigrant population in Assam and the political cost of agreeing to the demands of the movement. In 1984 the talks were once again initiated and the Janta Government was voted out of power. Subsequently, to end these tensions the Assam Accord was signed which contained detailed provisions relating to foreigners in the state.
The Assam Accord was an agreement signed between the then Central Government i.e. The Indian National Congress led by Rajiv Gandhi and the leaders of the Assam agitation. As per the Accord:
- People who immigrated to Assam before January 1, 1966, were to be given full citizenship meaning, they were now to be recognized as Indian citizens and would be entitled to the Fundamental Rights and other privileges of an Indian citizen.
- People who entered Assam between January 1, 1966, and March 24, 1971, would be dealt in accordance with the provisions of the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1964. According to these provisions, people belonging to this category would have their names cut from the voting list for ten years i.e. they would be disenfranchised and deprived of their voting rights for elections.
- People who have entered Assam after March 24, 1971, would be deported back to their own country. It also said that practical and legal actions would be taken against those people who are found to have entered India after the said date. The provisions of the Foreigners Act would apply to them.
Thus, March 24, 1971, has been set as the base year for the NRC came about. However, nothing much has been implemented as far as these provisions are to be considered. It only ensured that the agitation is pacified but the ground reality is that nothing has changed over the years and the immigration has continued which has made the conditions worse in Assam. Religious and ethnic violence has increased in the state. It is for that matter the Supreme Court has intervened in this matter to improve the situation by implementing the provisions of the Assam Accord.
The Assam Accord basically laid the foundation of an Immigrant free Assam. The Assam Accord will play a massive role in determining the future of Assam regarding foreigners. It is now the Supreme Court which has taken the matter in its hands and will now direct the Central Government in implementing the NRC. It is a big issue which will affect the lives of millions of people hence it is obvious that this procedure will take a lot of time but, it is definitely going to be a game changing decision which all of India is waiting for. Assam is now waiting for a logical conclusion to the four-decade-long struggle to protect its land, resources, and demography. It has been a battle between citizens and non-citizens and that’s how the people of Assam expect the rest of the world to see it.
- Contemporary Scenario
Although the Assam Accord ended the tensions around illegal immigration, much of its provisions were not implemented for the longest time. People were still infiltrating into the Indian Territory and the population of Assam was increasing steadily. The ground reality remained unchanged. It was being believed that the signing of the Assam Accord was being used for political mileage. The 1990s and early 2000s passed by and nothing much was implemented by the government. The protests and the agitation were once again coming into the picture with people demanding the government to take appropriate actions against the foreigners.
The pressure from the agitation movement finally compelled the Central and the State Government to take some action in this regard. In 2005, the Congress government led by Prime Minister Manmohan Singh announced that the National Register of Citizens (NRC) in Assam would be updated. People in the state of Assam were relieved to hear that the government was finally willing to help them. However, much to their disappointment, the Government literally sat on the matter for three-four years and again nothing much was done to resolve the issue. The unresponsive attitude from the Central Government compelled the Supreme Court to intervene in the matter. It was in 2009 when the Supreme Court of India got involved in the issue after Assam Public Works, an NGO filed a writ petition before it for the deletion of illegal immigrants’ names from the voter’s list in Assam.
The next few years saw the NRC process taking place in full pace with several committees being set up to look into the issue to finalize the procedure along with several meeting and talks taking place to simplify the procedure. During this process, several clashes took place in Assam causing damage to life and property. But, the process of updating the NRC went on. The Supreme Court in 2013 fixed July as the month to complete the modalities and directed the Central Government about the same. It also ordered the Government to resume the process the updating the NRC and since then, it has been monitoring the process and the steps by the government in regards to the updating of the NRC. This process received a boost when the Congress government in Assam was voted out of power in 2016, and the BJP assumed power in the state. The Congress government was always seen unwilling to act upon the matter and this could be one of the reasons why people of Assam voted against them.
The Supreme Court had taken the responsibility of monitoring the whole process and it set a date for the submission of the first draft of the NRC by the Central Government. The government was punctual in its approach and the first draft was published in December 2017. There were 3.29 crore applications submitted by the people and the first draft recognized 1.9 crore people as Indian citizens. In order to prove their citizenship, the people of Assam were supposed to show certain documents which could prove that they were genuine Indian citizens. Some of the documents included the Indian Passport, LIC Policy, any sale deed, or any license or certificate issued by the Government authority, etc.
The second draft of the NRC was supposed to be published on June 30, 2018, by the Government of India. However, the government couldn’t complete the process before the specified date and received censure from the Supreme Court. The second draft was eventually published on July 30, 2018. People whose names didn’t appear in the first draft were expecting to have their names in the second draft. The final draft contained 2.89 crore names and it didn’t include the names of around forty lakh applicants. People whose names are missing from the final draft are now worried about their future. They fear that they might get deported into Bangladesh. Some people have alleged that they are genuine Indian citizens and there has been some mistake on part of the government officials in not including their names. However, the government has clarified that people whose names are missing from the final NRC draft will not be deported as they will be given another chance to prove their citizenship.
People can file Claims and Objections if their names are missing from the NRC draft at the NRC Seva Kendras. Claims can also be filed by a ‘D-Voter’. A ‘D-Voter’ is a person who has been disenfranchised for ten years in the NRC process. Also, an applicant for the inclusion of name in the National Register of Citizens (NRC) will not be allowed to change the legacy person in the claim form from the originally submitted form in 2015, said an NRC official. In spite of the clarification given by the government, people still are apprehensive about their future in India. The Supreme Court taking this into consideration announced that people whose names are missing from the NRC draft can rely on five additional documents to prove their citizenship: voters list issued till 1971, ration card, an extract of NRC 1951, citizenship certificate issued till 1966, and refugee registration certificate. Also, people who are not able to prove their citizenship will not become foreigners automatically instead, they will have to be declared a foreigner by a tribunal.
Another important point here is that according to the Assam Accord of 1985, people who are not able to prove their citizenship will be deported back to Bangladesh. However, there is no such treaty or agreement between the two nations. Hence, the future of illegal immigrants in India is uncertain. Due to lack of any agreement, people aggrieved are most likely to take shelter in the neighboring states of Assam, especially West Bengal, as most of them are likely to be Bengali speaking Muslims. As a result, the Chief Minister of West Bengal, Mamta Banerjee is against the NRC process. She fears that the people who gave been left out of the NRC list might migrate to West Bengal. This will create problems for her as the state is already suffering from overpopulation and unemployment, and then to have so many illegal migrants into the state will further aggravate the already existing issues. However, the government of West Bengal has failed in its duty to provide data to the NRC officials. It was fixed that people who had migrated from West Bengal to Assam before March 24, 1971, need to prove that they are Indian citizens. The administration has to clarify that if they ever lived in West Bengal and have shifted to Assam. Nearly 1,15,000 queries were sent to the West Bengal administration and in response, they have responded to less 7,500 such queries.
This clearly shows the laxity and the irresponsibility on the part of the State Government. The government should work towards the welfare of the whole country rather than thinking for their own state alone.
- The Proposed Citizenship Amendment Bill
The Citizenship Act, 1955 talks about illegal immigrants and its other aspects. Recently, the BJP Government has proposed to amend this Act as Citizenship (Amendment) Bill, 2016. This proposal suggested by the BJP has not gone well with the people of Assam and the other regional parties including the allies of the BJP Government in Assam. Many people have termed this Bill as being ‘Anti-Assam’.
So, what does this Bill talk about? The BJP Government has proposed to give citizenship to foreigners belonging from Pakistan, Afghanistan, and Bangladesh, who are from Hindu, Christian, Buddhist, Jain, Sikh, and Parsi community. However, this proposal doesn’t involve the people belonging from the Muslim community. The Bill also seeks to reduce the requirement of eleven years of continuous stay in the country to six years to obtain citizenship by naturalization.
Experts and other political parties have looked this from the communal perspective and said that the BJP is playing communal politics and is trying to garner the Hindu votes in the state. The people of Assam have protested against this Bill and feel that they have been cheated by the Government. They feel that the government shouldn’t grant citizenship on the basis of a person’s religion and it should deport illegal immigrants irrespective of their religion. It seems that the BJP’s proposal has backfired as their ally; the Assam Gana Parishad has made it clear that if this Bill is implemented in the state then they would cut ties with the BJP. It is also being argued that if the amendments are made to the Act then the whole NRC would get nullified as the purpose of conducting the NRC was to recognize Indian citizens and not people belonging to different religions. The BJP tried to hardsell the bill in Assam, projecting it as a strategy to protect the Hindu identity of Assam against the influx of Muslims from Bangladesh but failed to take into account the fear among the Assamese of the cultural hegemony of the Hindu Bengalis.
The future of this Bill is uncertain and with the allies of the BJP opposing this Bill, it is highly unlikely that the Government will go ahead with this Bill. The BJP has a majority in Assam and it would not want the people of Assam to have a negative image of the BJP going into the general elections this year because the people of Assam are also against this Bill.
- Should India follow International Refugee Conventions?
There have been several opinions given by the people with respect to the NRC. Some are in favor of it and some are against its implementation. The people in favor of NRC argue that it is about India’s sovereignty and the rights of the people of Assam. People opposing it say that it is about humanity and people should not be expunged from a country like this. People all around the globe have conflicting views on the NRC. But what does the International Law say about it?
Although International Law isn’t given much importance in India it definitely has a persuasive effect. India has a lot of illegal immigrants staying in different states from different countries. India is not a signatory to the UN Refugee Convention of the 1951 or the 1961 protocol, which protects the refugee rights. In spite of this, India is home to a large number of illegal immigrants and stands among the top 5 nations with most refugees. Though India is not a signatory to the protocol, it still respects the United Nations High Commissioner for Refugees’ (UNHCR) mandate for refugees belonging to other countries.
A lot has been said about the NRC process. Some have expressed views that it may cause rifts between the Hindus and the Muslims and the Government wants to wipe out the Muslim section from the state. Recently, the United Nations’ officials commented that the Bengali Muslims can be ones who may be discriminated in the NRC procedure. They have said that the NRC process can create a tense atmosphere in the state and the Bengalis Muslims could be confused with Bangladeshi Muslims. The communication, published online, seeks a reply from the external affairs ministry within sixty days. It raises a number of concerns around the process of updating the register, an exercise monitored by the Supreme Court.
Various International Laws and Conventions relating to refugees or illegal immigrants state that the foreigners should not be ill-treated or discriminated and the government shouldn’t force them to leave the country or do something which harms the illegal community. However, these provisions or laws are not necessarily binding on a country and it has the right to ask the immigrants to leave the country. India, in this case, feels that it cannot bear the influx of a large illegal population in India on a daily basis. The security of the country cannot be taken for granted for any reason whatsoever. Hence, the decision of updating the NRC has again been undertaken.
A similar situation was there during the time of the Rohingyas deportation. After much deliberation and discussions, India had finally decided to deport 7 Rohingya refugees back to Myanmar. This decision was criticized by the UNHCR. The UNHCR requested the Indian authorities to grant access to their group to assess their need for international refugee protection. Also in 2015, the Indian government granted citizenship to the Chakma and the Hajong refugees in Arunachal Pradesh as per the order of the Supreme Court of India. The question now arises is that if the Indian Government can give citizenship to these refugees then why not to the illegal Bangladeshi immigrants? One of the many reasons could be that the Bangladeshi immigrants in Assam are far more in number as compared to the Chakma and Hajong refugees in Arunachal Pradesh. But there is no denying that the stance of the Indian Government with respect to granting of citizenship to refugees is uncertain and debatable.
- Can NRC be implemented throughout India?
When the decision to implement the NRC in Assam was taken, people were curious as to its implementation in the whole of India. For it to be implemented to the whole of India it will depend on several factors. One of them is the success of its implementation in Assam. If the NRC is successfully implemented in Assam, then the possibility of its implementation in all states of India will be very high. So far there have been forty lakh applications missing from the final NRC draft and the process of filing claims and objections is underway. Possibly these are the persons who have illegally entered into the territory of India. Just imagine if a small state like Assam has about forty lakh, illegal immigrants, then what will the number of illegal immigrants throughout India. However, only time will tell whether it will be implemented in India or not.
Several people and experts have given their opinion about its implementation throughout India but much depends on the thinking and the decision of the Central Government who is currently carrying out the NRC process in Assam. Recently, the BJP Vice-President said that if the BJP again forms government in the 2019 general elections, then the NRC will be implemented in whole of India. He expressed that the entire country is suffering from the problem of Bangladeshi infiltrators. There is not a single city or town which is not suffering from the problem of Bangladeshi infiltrators. Such a statement from the Central Government’s leader is of much importance and cannot be underestimated. It also tells about the mindset of the BJP Government that they are ready to accept the challenge in a huge country like India having a population of over 1.2 billion people. Other states have also expressed their willingness to implement NRC in the state. Tripura, for example, has shown a keen interest in the activity and has said it will be more than happy if the NRC is implemented in the state of Tripura. The President of the Indigenous Nationalist Party of Tripura (INPT) has pressed for NRC in Tripura and has said that the state has faced immigration from Bangladesh and we need NRC to ascertain as to why indigenous people of the state were reduced to a minority. However, states like West Bengal have opposed the NRC process and has time and again criticized the Central Government for trying to incite communal violence in various states. The West Bengal government is of the firm opinion that those who have entered India even after 1971 should be awarded Indian citizenship if they don’t have any criminal background.
For all differences existing between different political parties, they need to keep it aside and should think and work towards the welfare and betterment of the country. The implementation of the NRC throughout India will only be possible when all political parties have a common goal of protecting the country from illegal immigrants and then work towards achieving this goal. For now, all eyes are on the NRC process being conducted in the state of Assam and as stated earlier, the implementation of NRC in India will depend immensely on the success of NRC in the state of Assam. One thing is clear that whatever decision does the Central Government or the Supreme Court takes will be in the interest of the whole country.
The National Register of Citizens (NRC) is a life-changing process for the people of Assam being conducted by the Government of India under the directions of the Supreme Court. India’s sovereignty has always been threatened by the influx of illegal immigrants from neighboring countries like Bangladesh and India has the right to prevent these people from the crossing the borders and entering into the Indian Territory. However, this whole scenario is very delicate in nature and the authorities need to apply extreme care and caution in carrying out this whole process. One small mistake and a person’s life will be at stake. When this whole activity is completed, it may be the first time that a huge amount of population may be deprived of their citizenship in a single day. Hence, the NRC is extremely critical for the people of Assam as well as the government to prove that it isn’t afraid to take up difficult challenges in the interest of the country.
On one hand, there is an emotional rather humanitarian psyche attached with the NRC process and on the other hand, the security of the country. The government has to find a balance to solve this dilemma and the management of such a huge amount of people will pose a significant challenge to the government carrying out this whole process within the purview of the Apex Court. Since the matter is still sub judice, there are many permutations and combinations are possible but only time will tell what lies ahead.
The NRC is a historic step in Assam’s history and will definitely have an impact on India’s reputation on the international front. So, it is imperative that various political groups, the government, and the people involved should co-operate for the smooth conduct of this activity. On the political front, it is an opportunity for the Central Government i.e. the BJP to create a good impression of itself in the north-east part of India which predominantly has been anti-BJP. With the general elections due, the BJP would like the people of north-eastern regions to have a positive view towards it. However, as stated earlier, this process is very delicate in nature and any type of mismanagement, the BJP will have to bear the repercussions. All in all, the people of Assam wait twitchily for the things to unfold.
Anil Roychoudhury, National Register of Citizens, 1951, Econ. & Pol. Weekly 267-267 (1981).
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Kaushik Deka, Supra note 3.
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