Introduction and Historical Context:
The issue of citizenship is closely connected
with the preservation of cultural identity, demography coordination and
regional peace. The social contract theory prescribed for the people to repose
their faith in a government, and form a contract with them, wherein the people
of a state contribute their individual labour and resources into the larger
pool of the nation and in exchange the state provides them with sufficient
security, infrastructure and basic necessities. Universal understanding exists
around that world that each country and its corresponding economy has a
resource constraint i.e. a limited amount of resources to support a population,
which in turn contribute to the cycle of resource management. Prosperous
diaspora of a society provide for the not-so-privileged section through the
social security net, the state being the facilitation agent in the process, but
there exists a problem when the population appears to blow out of proportion to
the production of resources, more so in a country like India with an already
existing population battle to fight. The question of refugees and migrants in
the state always invokes mixed emotions amongst the people. Various logical
explanations are used to either counter or support the cause of such entities.
The National Register of Citizens (herein after as ‘NRC’) is a tipping point in
the history of the country, its success, failures, achievements, complications
can only be pointed out looking at hindsight, maybe, twenty years down the
line, but its history does reflect a lot on the motives, actions and mistakes
of the administrators of the past, from creating a problem to finding its
solution, NRC has been an interesting journey in itself.
Assam as a state has long had its share of
experiences with migrations specifically from the states of Bihar, Orissa, and
Bengal. The Colonial administrators required manual laborer for the blooming
tea industry of the State, with expansion of the economy and renewed trade
opportunities Rajasthani Traders found their way into the inner districts of
the State, specifically in and around places having tea estates. The discovery
of oil and coal deposits prompted the government to transport more labourers
from the border districts of Rangpur, Bogra, Mymeshingh, Pabna (Districts of East
Bengal Province) etc. Subsequently, the more educated Bengali populace were
encouraged to settle in the ‘New Foundland’ of the British Raj and take up job
in the lower rung of the administration, teaching and supervision of the local
labors.[1]
Such prompted migration had its fair share of
advantages like the arrival of cultivation techniques in the Brahmaputra
Valley, introduction of multiple cropping, jute cultivation etc. But the major
setback was noticed on the demographic scale of the state particularly in the
border districts of Goalpara, Nowgong, Darrang, and the capital district of
Kamrup.[2]
During the riots and melee following the
partition of the Subcontinent, hordes of refugees started arriving in the
country, the problem was aggravated in the state of Assam owing to the porous
borders and the un-demarcated geography of the hill districts as well as the
easy access through the Brahmaputra. In light of the situation, the Central
Government passed the Immigrants (Expulsion from Assam) Act, 1950. The act
bestowed power on the Central and state government to remove any person from
the geographic limits of India, if they deem their presence as ‘detrimental to
the interest of general public’ or any specific Schedule Tribe in India.
However, an exception was placed over refugees coming to India from Pakistan on
grounds of civil disturbance or fear of persecution. This specific exception
proved to be a major roadblock in the years to come both for courts of law and
the subsequent governments in state and at Centre.
The first exercise towards a NRC was carried
out with the Census of 1951 wherein, a NRC was prepared by copying the names,
sex, livelihood, age, names of next to kin alongside the house holding data
within each village, the finalized registers were kept in the District
Commissions’ offices and transferred to Police for verification of illegal
immigrants.[3]
Operational Problems:
The lack of passport regulations in the early
1950s nullified any constructive attempt at the expulsion of illegal
immigrants. Further the Foreigner’s Act 1946 wasn’t amended in time to include
Pakistani nationals within the ambit of Foreigners, the said act was only
amended as late as 1957, which brought Pakistani Nationals within the
definition of foreigners in the Country. Effectively before the said amendment,
Pakistani Nationals were not required to have any additional registration for
staying and visiting the territory of India. It was only after this amendment
that the Central Govt. issued a notification to deport all Pakistani Nationals
staying in the Territory of India without any authority by law. Alongside the
aforesaid, the Citizenship Act was passed only in the year 1955, effectively
the date from which anyone could have been legally demarcated as a Citizen. All
of these problems combined posed a serious administrative and legal lull in the
1950 for any effective action to be taken against the illegal immigrants.
Cognizance of the Problem:
The Census of 1961 was a major point in the
history of NRC, it was the first time that the intensity of the problem was
reveled for the first time. The census estimated that 2,20,691 infiltrators had
crossed the border over into Assam. The people noticed the magnitude of the
problem for the first time. The state government notified the police to carry out
a search and expulsion operation. For its facilitation, 4 foreigners’ tribunal
were setup to adjudicate on matters of illegal immigrants, and issue them
‘Deportation notices’ if found to be illegally residing in India. Following the
Foreigners Tribunals Order 1964, the number of tribunals was increased to 9 for
quick and effective adjudication of cases. However, following certain Human
Rights Concerns and adverse publicity in the International Press, wholesale
checking of villages and houses were instructed to be stopped and checking on
basis of reasonable and evidentiary suspicion were to be conducted.
In February 1976 the Home Ministry issued a
notification regarding the deportation of Bangladeshi Nationals. The Central
Govt. instructed the state governments to not deport people who had come to
India before March 1971.[4] Effectively,
meaning to protect the people who had sought refuge in India during the
massacre in East Pakistan.
The Assam Movement and Accord:
The problem of misplaced population and
disturbing demography was not new for the people of Assam, but the proportions
were realized after the newly independent country of Bangladesh, which emerged
as the third player in the refugee crisis, owing to its turbulent political
environment and limited opportunities, forced millions to immigrate to India.
The numbers were staggering and surprising at the same time, because no one had
anticipated the extent of the problem until then.
1977 General elections saw a rather good
turnout in the State of Assam, Hiralal Patwari won the Mangaldoi Lok Sabha
seat. However, his untimely death prompted a by election for the seat. Wherein
it was noticed for the first time that there was a sharp increase in the voters
within the voters’ list, an estimated increase of 77,000 new voters[5]
most of whom were suspected to be illegal immigrants. For the first time the
danger became apparent, the fear of natives turning a numerical minority in
their own land was apparent and closer than ever, the new voters could easily
swing the results in anyone’s favor undermining the electoral demography and
demands of the people. Thus was triggered the Assam Movement in 1979 with the
demand of exclusion of all the illegal immigrant names from the voters’ list,
with time similar problems of demography shift were noticed in different
districts across the State, which prompted the movement to take widespread
proportions, which saw 855 martyrs for preservation of cultural identity,
linguistic and demographic maintenance of balance. The chief demand for the
movement was the identification and expulsion of illegal immigrants from the
state of Assam. The movement concluded with the signing of the Assam Accord
between the Rajiv Gandhi Administration, Govt. of Assam and All Assam Student
Union with certain promises that were made by the government to the agitating
students. The status of these promises will be analyzed in subsequent chapters.
Narratives and Chief Problems associated:
One of the chief arguments and the primary
narrative used for a Pan India NRC can be found in the scribes of the Assam
Movement itself. The primary contention is that of unusual rise in the
population figures of a particular religion, a trend which has been studies for
several decades from 1971 to 2011 shows a decadal rise of 3% population of a
particular community, this is beyond natural explanations, and the only
possible and logical reasons derived is that of illegal migration. The fear
according to the expected estimates put the year 2040 as the time when the
people in Assam will become minorities in their own state.[6]
This puts a question on the cultural survival of the people in jeopardy,
loss of linguistic identity, black clouds over resources and employment
opportunity.[7]
Another major contention is the differential
treatment with a particular state, wherein the cutoff date for the Citizenship
Act has been placed as March 1948 for other states of the Northeast but the
date for Assam has been specified as 25th March 1971, showcasing the
intent of the Government of the time, to protect and safeguard the refugees,
and making the state of Assam liable for them. Point to be noted is the fact
that these actions are independent of any international obligations i.e. the
excuse of fulfilling any international obligations can’t be used under Article
51(c)[8]
read with Article 253[9] of
the Constitution of India, because India is not a signatory to either the UN
Refugee Convention 1951 or its Additional Protocols of 1967.
The Hon’ble Supreme Court has gone as far as to
say that the Union Government has, by the means of the Illegal Migrants
(Determination by Tribunals) Act, 1983 violated Article 355 of the Constitution
by failing to protect the Citizens of the State of Assam against the external
aggression and internal disturbance created by the hostile influx of refugees
from Bangladesh[10](emphasis added).
NRC was created for the first time in the year
1951, but has not been updated since which has essentially been the death of
this noble initiative. The records with respect to the same are obsolete, the
sample size impractical and the methods ancient to say the least.
A Pan India NRC would also be plagued by
regional problems related to identification of immigrants. Unlike Assam, every
state in India can’t afford the cutoff date of 1971, the rest of the country
still follows the usual date of 1948. Which would make it largely difficult to
gather and showcase legacy data for most of the people, be it legitimate
inhabitants or illegal immigrants. The problem of inter-state migration would
be a major hurdle in the verification of data for NRC, wherein people working
in cities away from their birth cities would have to prove their citizenship at
two places, however the Hon’ble Supreme Court has relaxed the criterions for
people having moved from their birth place to Assam on a permanent basis.[11]
Legacy data:
Legacy data is the chief indicator that has
been used for updating the NRC. But a basic understanding of what Legacy data
constitutes would put us on the track of understanding its inherent flaws.
Legacy data is based upon admissible documents,
wherein if they can be shown and corroborated, then a person would be declared
as a legal citizen of India. Such documents include (as of now)[12]: List
A
1. name of self, or parents, or ancestors in the
1951 NRC, or any electoral roll until 1971
2. Land and tenancy records
3. Citizenship Certificate
4. Permanent Residential Certificate
5. Refugee Registration Certificate
6. Passport
7. LIC Policy
8. Any Govt. issued License/ Certificate
9. Govt. Service employment certificate
10. Bank/ Post office account
11. Birth Certificate
12. Board/University Educational Certificate
13. Court Records/ Processes
Two additional documents: Ration cards (issued
before 24th March 1971) and Circle officer certificate with respect
to married migrating women can be accepted with corroborative evidence of the
above documents.
If in case a person is unable to find his/her
name in any of the List A document but has an ancestor within List A
eligibility, then a List B document establishing relationship with the ancestor
need to be produced:
1. Birth Certificate
2. Land Document
3. Board/University Certificate
4. Bank/LIC/Post Office Records
5. Circle Officer/GP Sec. certificate in case of
Married Woman
6. Electoral Roll
7. Ration Card
8. Any other legally acceptable document
The list is indicatively exhaustive if not
totally. The instances of rampart corruption in the country[13]
and possibility of forgery of documents is a general rule rather than an
exception at some point or the other.
The legacy data as incorporated in the NRC list
for Assam is based upon the original NRC of 1951 and subsequent electoral rolls
until 1971.[14] However a similar
experiment in the nation would require a legacy data update from 1948 onwards
with no cutoff date or any criteria to determine such date, since there has not
been a single watershed event as drastic as Bangladesh Liberation that any
other part of the country has been subjected to, except the Tamil Eelam
Movement (but the People and Govt. of Tamil Nadu were promoters rather than
opposers of sheltering the refugees), making it nearly impossible to figure out
who is an illegal immigrant because appearance of name in even a single electoral
list or any of the said document make a person a legible citizen.
This has been one of the chief criticisms of
the NRC Update process, the exhaustive list of documents being considered.
Primary issue with such documents is that the issuing authorities at that time
didn’t have such strict regulations for issuance of the documents back in the
1960s and 70s making them easily accessible for implementation of the Social
Welfare Policy of the Government.
Porous borders remain a primary issue while
discussing illegal immigrants. India share a long coastline and land border
with multiple countries, the security is lax more often than not. The borders
are not as concrete as standards would expect to be. Until rigid border control
methods are not implemented and border patrol made effective, NRC would be an
exercise in wastage of time and money.
The Question of ‘Now What’?
Even if an idealistic assumption is made that
the Pan India NRC is successful in identifying majority of illegal immigrants
in the Country, and after passing through a lengthy and time-consuming process
of adjudications and appeals, finally a conclusion over the question of
nationality is reached. The entire point of this exercise remains unclear.
The IMDT Act, controversial is its applicability
and effectiveness, did declare 29,700 people as foreigners and ordered for
their deportation post the 1971 deadline. However, only 2442 people were
actually deported back.[15]
In such a case scenario what remains the point of the effort.
The normal procedure followed to date in cases
of deportation is: the identified foreigners are handed over to the BSF, who
take them under custody and keep them in a detention center. In the meantime,
BSF take up the matter with Border Guards of Bangladesh (BGB) who go through
their own verification and cross verification process. To alternatives remain
with the BSF: push back and deportation. Both are different in the sense that
‘deportation’ necessitates the acceptance of the person by the concerned
country, but ‘push back’ doesn’t necessitate acceptance, the latter being an
adverse scenario wherein the person is often left stateless.
In absence of a formal agreement between India
and Bangladesh or any other country for that matter, requires diplomatic
channels to function overtime and look for a solution. However, in cases like
that of Bangladesh, wherein an express denial to accept the illegal immigrants
back, create an adverse scenario for the people trapped in this vicious cycle.
Life in detention camps remain the only
possible answer to the question of ‘now what’? Since the chief contention
behind NRC was to eliminate non-citizens from voters’ roll and avoid a
demography change, which essentially looks fulfilled, detention camp appear as
the only possible humane solution to the problem, wherein Rights under the
Constitution are guaranteed to even Refugees and non-citizens except for the
Right to Vote by virtue of the Hon’ble Court’s judgement in National Human
Rights Commission v. State of Arunachal Pradesh[16].
Updating process:
The only reason that the NRC failed in 1951 was
the non- updating of the register by the concerned authorities from time to
time. For the same mistake to not be repeated again, a periodic review and
update of NRC becomes a must for continuous monitoring of illegal immigrants in
the country. A one-time exercise at the hands of the government may eliminate
such foreigners from the border for once, but continued vigil and effort will
only ensure that the same problem is not germinated in the future.
A proposed strategy can be a concurrent conduct
of census and verification of NRC across the country, similar to the
verification of electoral rolls before every major election.
The de novo revision strategy can also
be applied, wherein the Election Commission will be notified through a red
alert as soon as any polling booth or a constituency as a whole receives more
than 4% increase in the registered voters, with reference to the last elections.[17]
The red flagged constituencies or the particular polling stations can be
thoroughly and easily verified by the Election Commission, instead of a Pan
Nation NRC altogether at once, a system of continued vigilance will thus be
developed.
Conclusion and Suggestions:
There remains no doubt that the entire process
of NRC has been thought thoroughly and implemented to the best of capabilities
of its coordinators. But there remains scope for improvement to the system of
conduct and other aspects of its commission which can be improved by the means
of deliberations, and possibly trial and error, provided it is applied on a Pan
India Level, and is made a periodic exercise.
NRC remains as much of a legal question as it
is a moral one, weighing the right of the refugees on one hand against the
rights of the native communities. It essentially becomes the question of
safeguarding the culture, language and ethnic values of a community against an
illegal (not necessarily immoral) invasion at the hands of a historically
connected by geographically divided communities, whether the state owe a
primary responsibility to its citizens or a greater responsibility towards its
commitment to protect human rights.
The following strategies can be followed ever
and if a Pan India NRC is planned:
a. The geographic and historical context of each
state shall be taken into consideration before implementing the NRC on it.
Therefore, validation of a Pan India NRC should be a process that shall be
taken One State at a Time.
b. The de novo revision strategy appears as
the most effective and practicable out of the alternatives available in the
same domain.
c. An effective appeal and revision strategy, with
a transparent window for information and intimation to public shall be
incorporated so as to avoid allegations of corruption and arbitrariness
d. An exhaustive list of Legacy documents and a
limited strategy of legacy data shall be implemented, keeping in mind the
social realities and unfair practices that have been involved with the
documents (forgery and duplication) since the time of independence
e. An agreement, uniform in nature with immediate
neighbors of the country with respect to the taking back of illegal immigrants
f.
Enacting a
legislation in the meantime to safeguard and codify the rights and duties of
people residing in the detention camps
g. Concrete steps to make the borders of the
country rigid and no penetrable, be it from land, sea or rivers
h. Issuance of Citizenship certificates in areas
having reported drastic increase in the voting population from last elections
The Citizenship (Amendment) Bill, 2019 has reignited
the debate for justification and preservation of human rights. The bill is
progressive in its concept that despite not being a party to any refugee
convention, India has committed itself as the safe harbor, and crusader against
minority persecution, as the protector of minorities around the world. The
melting pot of global civilizations would be an understatement for the said
bill; however, the Government has to ensure at the same time, the conservation
and protection of ethnic, cultural and linguistic groups within the Union, who
have their fair share of apprehension regarding the same. As the Assam Accord
had promised for laws for protection of indigenous Assamese culture and
tradition, though remained unfulfilled, shall nonetheless be a model for creating
a balance between the safe harbor of minorities and rights of linguistic
identities.
[1]
White Paper on Foreigners’ Issue; Home and Political Department, Govt. of
Assam; 1, 5 Oct. 20 2012.
[2] Id.
Annexure I C. at 5.
[3] Id.
At 11.
[4] Id.
[5]
Rajya Sabha TV, RSTV Vishesh: Assam Accord, (July 31, 2018)
https://www.youtube.com/watch?v=qQHY8nB-5yE.
[6] Id.
[7]
Sarbanada Sonowal v. Union of India, (2005) 5 SCC 665 (India).
[8] INDIA
CONST. art. 51(c): Promotion of international peace and security The State
shall endeavour to:
foster respect for international law and treaty
obligations in the dealings of organised peoples with one another; and
encourage settlement of international disputes by arbitration.
[9] INDIA
CONST. art. 253: Legislation for giving effect to international agreements
Notwithstanding anything in the foregoing provisions of this Chapter,
Parliament has power to make any law for the whole or any part of the territory
of India for implementing any treaty, agreement or convention with any other
country or countries or any decision made at any international conference,
association or other body.
[10] supra
note, at 7.
[11]
Kamalakhya Dev Purkayastha v. Union of India, Writ Petition (Civil) 1020 of
2017 (India).
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