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The citizenship test in India

The National Register of Citizens through national and international perspectives

13.03.2020

The National Register of Citizens (NRC), published on August 31, 2019, which documents legal citizens in India, has declared 19 lakh (or 1,9 million) residents of Assam as illegal immigrants, a number substantially lower than that provided by the Supreme Court of India in 2004 on the total number of illegal migrants in this state in North-Eastern India. This deviation raises many questions, including on the ambiguous stance of the court, which seems to be operating as an “executive court”, and on the reliability of the data provided.

It is also reported that the provisional list was made erroneously, that it excluded people based on “spelling errors” or “mistaken identity” and that a large number of cases were heard ex-parte, and hence, the process does not follow a reasonable and objective examination of the individual cases. As the process of determining illegal migrants is itself flawed and ambiguous, it is actually difficult to distinguish illegal migrants from actual Assam citizens living in Assam since time immemorial. Such an act may bring consequences of statelessness to the actual inhabitants of Assam (and the citizens of India) who fail to produce bona fide required documents for identification. Thus, the present chaos does not just question constitutional safeguards that ensure the right to life and personal dignity, but also brings out major criticism in terms of India’s international obligations to protect basic human rights.

How it all started

The NRC is the register of Indian citizens of Assam. It was first established in 1951, relying on the census of 1951. The Supreme Court of India, in 2013, passed an order to update the figures. In 2004, when it was found that there was 1.2 Crore (or 12 million) Bangladeshi citizens illegally in India, the court shifted the burden of prove of citizenship to the individual. And later, in 2005, in the Sarbananda Sonowal case, the Supreme Court declared some parts of the Illegal Migrants (Determination by Tribunals) Act, 1983 (IMDT Act), unconstitutional, and reiterated its previous stance by stating that the burden of proof lies on the alleged illegal immigrant. The bench observed that the number of detentions under the IMDT was far lower than the number of actual illegal immigrants. Thereby, it should be the government’s prerogative to ensure the deposition of illegal immigrants to fulfil the mandate under Article 355 of the Indian Constitution, which entrusts the duty on the Union government to protect all the states from any “external aggression” and “internal disturbance” to ensure the functioning of all the states as per the constitutional mandates.

Another writ petition filed, in 2014, asked the Supreme Court to declare Section 6A of the Citizenship Act (which states that any person who settled in Assam before March 25, 1971, would be considered an Indian citizen) unconstitutional. The two-judge bench recommended the issue to be referred to the Constitutional bench. However, relying on the data provided in 2004, it observed in the Mahasangha case “that the Central Government has done precious little to stem this tide” (para. 30) of undocumented immigration.

Constitutional debate

Amidst all controversy and deliberations by different organs of the government, a more pertinent question arises regarding the (possibility of) violation of the constitutional rights of the people in Assam. As the status quo on citizenship has not yet been determined, Article 21 of the Indian Constitution comes into the picture, which guarantees “any person” the right to life and liberty, irrespective of his/her nationality.

Under the present circumstances, where there is no place to send these illegal immigrants, there is no clarity about the steps the government may take after completion of the NRC exercise in Assam. One of the possible strategies is to hold them in the detention centres till their death or till the time any state accepts these people as its citizens. However, detention centres should only be a temporary solution. The Supreme Court in January 2019 said that people could not be held in a detention centre indefinitely.

What is the international status of stateless persons?

A large number of people worldwide are without citizenship. The Secretary-General’s 1949 Study of Statelessness defined and recognized the existence of statelessness on the grounds of genocide, armed conflict, persecution, and racism. In 1961, the Convention on the Reduction of Statelessness was adopted, complementing the 1954 Convention relating to the Status of Stateless Persons. Although India is not a party to these conventions, domestic and international human rights guarantees apply. Article 15 of the Universal Declaration of Human Rights recognizes the right to a nationality for everyone. In its brief concerning India, the United States Commission on International Religious Freedom expressed concerns of NRC targeting minorities.

According to the Report of the United Nations Secretary-General on human rights and the arbitrary deprivation of nationality (para. 21), the right to a nationality contains:

  • the right of each individual to acquire, change and retain a nationality; and
  • that one’s nationality cannot be arbitrarily removed.

Furthermore, Article 4 of Protocol No. 4 to the European Convention on Human Rights prohibits collective expulsion, which has been defined by the European Court of Human Rights (ECtHR) in the Čonka case as “any measure compelling aliens, as a group, to leave a country, except where such a measure is taken based on a reasonable and objective examination of the particular case of each alien of the group” (para. 59). Collective expulsion is not entirely prohibited in the European protection system but restricted, allowing expulsion only based on a reasonable and objective examination of each case. This definition given under Protocol No. 4 to the European Convention on Human Rights is relevant because the Supreme Court of India relies on the jurisprudence of the ECtHR because of its comprehensive nature in dealing with human rights.

Finally, due process and examining case on merits are an integral part of international guarantees and the judicial system in India. This includes the requirement that every case must be subjected to reasonable and objective examination. For example, the International Covenant on Civil and Political Rights subjects in its Article 13 any expulsion to the condition that it is “in pursuance of a decision reached in accordance with law”.

Lack of due examination of individual cases

However, the implementation of the NRC in Assam does not show that there is indeed a due and objective examination. Nor are there clear guidelines or procedure to demonstrate what constitutes proof of citizenship. If a document is not accepted, this is where the courts have to intervene to review whether or not a particular document can be accepted as proof of the citizenship.

The rationale behind the NRC was originally to check the illegal inflow of people. Not only in India, but also in many other parts of the world, there have been deliberate removals of ethnic minorities. This issue can be seen for example in the case of Ethiopia and Eritrea, as reported in the report “Horn of Africa War: Mass Expulsions and the Nationality Issue. In India, various claims have been made that deliberate removals of members of minority groups are made in the name of “checking illegal inflow of people”. This was refuted on the ground that the NRC is not a minority issue. Paulomi Tripath, first secretary in India’s Permanent Mission to the UN, stated that the NRC “is a statutory, transparent, and legal process mandated and monitored by the Supreme Court of India”. She further added to her statement that judicial remedies are still available, and that due process is given to every individual. However, the reality differs.

Currently, more than 1.6 lakh (or 1.6 million) people are fighting cases in the foreigners tribunal, a quasi-judicial court which has the ultimate authority under the provisions of the 1946 Foreigners Act and 1964 Foreigners Tribunal Order to hear appeals of those excluded from NRC. In 68,789 cases, the judgments were given ex-parte. Given the above circumstances, the authors consider that the NRC situation does not reflect a reasonable and objective examination, but a clear indication that the situation is moving towards a humanitarian crisis and clearly violates domestic and international norms of human rights.

The present situation in Assam showcases political play and misses the required respect for human rights and democratic values. The country known for being the largest democracy in the world has failed to maintain its commitment towards its constitutional mandates. This current scenario has not just questioned the intentions in policy-making, but has also challenged the constitutional narrative. The international response reminds the obligations and responsibility of the Indian state to protect the values of human rights not only as a democratic country but also as a responsible social nation in the world.

 

Ankitashri Tripathi and Anjasi Shah are students at Nirma University, Gujarat, India.

 

Cite as: Ankitashri Tripathi & Anjasi Shah,  “The citizenship test in India: The National Register of Citizens through national and international perspectives”, Völkerrechtsblog, 13 March 2020, doi: 10.17176/20200314-003011-0.

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