Archive for the ‘Enforced statelessness’ Category

Supreme Court remarks on illegal detention fly in face of India’s constitutional and international obligations: CHRI

May 5, 2019
Supreme Court of India. Photo The Hindu

Supreme Court of India. Image: The Hindu

New Delhi, May 1

The Supreme Court needs to reaffirm India’s constitutional and international obligations to rights on complex issues of nationality, detention and deportation and not be unmindful of its own commitment to these duties, the Commonwealth Human Rights Initiative (CHRI) has urged.

The following is the text of the statement, issued today, and signed by a group of eminent citizens including former Supreme Court Justice Madan Lokur, Wajahat Habibullah, CHRI’s Chair and former Chief Information Commissioner, Justice AP Shah, former Chief Justice of the Delhi High Court, and a number of senior former officials and civil society leaders:

As concerned citizens, we look to the Supreme Court to reaffirm India’s constitutional and international obligations to rights on sensitive issues.  That is why we are disappointed by recent statements by the Chief Justice of India on a complex matter relating to illegal detention and deportation, without heeding India’s own constitutional and international obligations.

While advocating greater detention of suspected ‘foreigners’, the Chief Justice brushed aside the Assam Chief Secretary with a stinging admonition for proposing a methodology for the release of a handful of foreign prisoners who had been in detention beyond their term of sentence for illegal entry. This was especially of concern for the case concerned the wilful violation of the human rights of hundreds of detainees who were languishing in what the court itself accepts are “inhuman conditions”.

We regard these remarks as unfortunate.

Article 21 is very clear in its intent, ambit and process. It binds all duty-holders and citizens with the ringing affirmation that no person in India (and we emphasize that there no special privileges here for Indian citizens) can be deprived of her/his right to life and liberty without due process.

NRC

NRC Official Logo

There is no deportation agreement with Bangladesh. International law lays down that such deportations can take place only with the consent of the country of origin. Bangladesh has consistently refused to accept that its citizens migrate in large numbers to India. Indeed, Bangladesh regards such unilateral efforts as harmful to a bilateral relationship that is critical for the security and stability of both countries and especially of our eastern region.

We cannot place ourselves in a situation where we are seen as forcing people out at gunpoint; it would be ethically unjust, wrong in law and draw international condemnation.

We are acutely sensitive to concerns in Assam and other parts of the North-east and across the country about the problem of illegal migration from Bangladesh, a long-standing issue that has defied official proclamations and pledges of “push back”, “deportation” and “detection”.

Whatever methods are used they must be undertaken within the rule of law frame, be just and fair and designed to minimise individual hardship and tragedy. We believe there is a need that this is a tragedy of growing intensity which is gathering momentum as a result of the current National Register of Citizens (NRC) exercise in Assam.

Accounts from Assam indicate that often arbitrariness not rule of law is used to define those who have come post-1971 from Bangladesh (of whatever religious denomination) and those who are Indian nationals.

NRC-FORMS, SABRANG INDIA

People submitting NRC applications, Photo: Sabrang India

Lakhs are in limbo and now fear that they may become “stateless” because of a process that is mired in a mix of complexity, confusion, lack of precision and prejudice.

Many of those at risk are from the bottom of the economic pyramid, unable to sustain the complex adjudication process needed to establish their citizenship. Large numbers are already in detention camps.

Although the Supreme Court mandated deadline for a ‘final’ list is July 2019, we understand that not less than 38 lakh persons out of the 40 lakh (four million) who had found themselves off the NRC last year have filed applications for inclusion.  Such a huge number of requests cannot be processed in two months and we urge that this not be hurried as the consequences are too devastating to contemplate. The efforts need to be steady and methodical so that the charges of arbitrariness, prejudice and poor record keeping, which have plagued the NRC process, do not stick.

It must be pointed out here that India is a signatory to the Universal Declaration of Human Rights in which its representatives played a stellar part in developing the language that all of us are familiar with in regard to equality, non-discrimination and gender.  Our international commitments are clear as to the rights of people affected in such situations.

It would also be unacceptable if any Indian of any religious denomination is harmed by negligence, wilful prejudice, wrongful confinement and prosecution.

Failure to address this critical situation adequately and justly would be seen internationally as a gross violation of human rights and a blot on India’s traditional record.  What is also of concern to us are social fault lines that could be exacerbated by insensitive handling that could leave many people desperate, particularly youth, with the potential of radicalization.

As concerned citizens, we appeal to the judicial system and the government to explore a solution that addresses the human dimension. The situation in Assam and inter alia other parts of the North-east represent unprecedented challenges and conditions that cannot be resolved by application of a routine legal framework which is designed to deal with individual cases.

Wajahat Habibullah, Chairperson, CHRI

Members:
Justice Madan Lokur

Justice AP Shah

Ms. Vineeta Rai (IAS, retd, former Revenue Secretary  to the Government of India)

Nitin Desai, former Under Secretary, United Nations)

Jacob Punnoose (IPS, retd)

Poonam Muttreja (Member, Executive Committee, CHRI)

Kamal Kumar (IPS, retd)

Ms. Maja Daruwala (Adviser, CHRI)

Jayanto N. Choudhury (IPS, retd)

Dr. BK Chandrashekar (ex MLC, Karnataka)

Sanjoy Hazarika (International Director)

——————————————————————————————————————The statement is a verbatim reproduction from CHRI website at http://www.humanrightsinitiative.org/press-releases/supreme-court-remarks-on-illegal-detention-fly-in-face-of-indias-constitutional-and-international-obligations-chri

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UN questions ‘statelessness and disenfranchisement’ of ‘minority groups’ in Assam

September 26, 2018

Special Rapporteur’s report to UNGA highlights plight of Bengali Muslims

UN-Human-Rights-Feature-Image

The UN Special Rapporteur has once again raised the issue of possible statelessness of millions of people in Assam in wake of the exclusion of their names from the National Register of Citizens (NRC). This is part of a report titled Contemporary forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance that was presented before the UN General Assembly.

The 22 page report condemns “nationalist populism that advances exclusionary or repressive practices” and addresses “ascendant nationalist populist ideologies and strategies that pose a sobering threat to racial equality by fueling discrimination.”

Over 4 million people have been left out of the NRC final draft! Most of them belong to socio-economically backward communities and live in rural areas. Many of them are women and children!

On the subject of the exclusion of minorities from the NRC in Assam, the report says,

Nationalist populist parties in other places have implemented administrative and other rules leading to the exclusion of minority groups from official citizen registries on the basis of claims that they are irregular migrants, notwithstanding evidence showing that they are entitled to citizenship. This in turn has led to statelessness, disenfranchisement and increased vulnerability to discrimination, including the denial of basic rights and access to public services such as health and education.

In May 2018, the Special Rapporteur addressed a letter to the Government of India concerning the updating of the National Register of Citizens, a process governed by local authorities in the state of Assam. The letter drew attention to the heightened concerns of the Bengali Muslim minority, who have historically been portrayed as foreigners despite having lived in India for generations, even preceding the colonial era. Since 1997, the Election Commission of India has arbitrarily identified a large number of Bengali people as so – called “doubtful or disputed voters”, resulting in their further disenfranchisement and the loss of entitlements to social protection as Indian citizens.

While many have affirmed that the updating process is generally committed to retaining Indian citizens on the National Register of Citizens, concerned parties fear that local authorities in Assam, who are deemed to be particularly hostile towards Muslims and people of Bengali descent, may manipulate the verification system in an attempt to exclude many genuine Indian citizens from the updated Register.”

The entire report may be read here.

This is the second time the UN has taken cognizance of the humanitarian crisis in Assam. In May 2018, in a letter to External Affairs Minister Sushma Swaraj, four UN Special Rapporteurs had said,

It is alleged that the Tribunals have been declaring large numbers of Bengali Muslims in Assam as foreigners, resulting in statelessness and risk of detention. Finally, it is alleged that the potential discriminatory effects of the updated NRC should be seen in light of the history of discrimination and violence faced by Muslims of Bengali origin due to their status as ethnic, religious and linguistic minority and their perceived foreignness. Although the Bengali origin Muslims in Assam descend from peasant workers brought from the former Bengal and East Bengal starting in the 19th century under colonial rule, they have long been portrayed as irregular migrants. As a result of this rhetoric, Bengali Muslims have historically been the target of various human rights violations, including forced displacement, arbitrary expulsions and killings.”

In light of this, it is clear that the NRC issue is under the UN scanner and that given the international scrutiny it will not be easy for divisive forces to function with impunity much longer.

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(The story was first published in CJP and is available at https://cjp.org.in/un-questions-statelessness-and-disenfranchisement-of-minority-groups-in-assam/, this is only a reproduction.)

Urgent appeal: Include the excluded people in the citizens’ register (NRC) for Assam, India

August 6, 2018

On 30 July 2018 the Government of India published a draft register of citizens residing in the state of Assam. This draft register admittedly excluded more than four million people who submitted applications for inclusion of their names. These four million people are at the risk of being rendered stateless.

People waiting to check their names in first draft of NRC publish on 31st December 2017

People waiting to check their names in first draft of NRC publish on 31st December 2017 (Photo: thehindiu.com)

Please sign the petition here

The main reasons for exclusion of such a large number of people include:

  1. Having no acceptable documents of pre-1971 as is required for inclusion.
  2. Having no acceptable documents to establish relationship with an ancestor who has a pre-1971 document.
  3. Non-acceptance of otherwise valid documents like school certificates and certificates of birth given by hospitals etc.
  4. Failure to verify submitted documents by the authorities.
  5. Non-acceptance of oral evidence.
  6. Not having an opportunity to establish citizenship by birth under section 3 of the Citizenship Act, 1955 by producing birth certificate or other admissible evidence of birth in India within the period specified.
  7. Non-application of subsection 7 (a) of section 6A of the Citizenship Act, 1955.
  8. Non-application of Proviso to section 2 of the Immigrants (Expulsion from Assam) Act, 1950.
  9. Little or no application of Sub-paragraph 3 of Paragraph 3 of the Schedule titled Special Provision as to Manner of Preparation of National Register of Indian Citizens in State of Assam framed under Rule 4A of the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003 in certain areas including South Assam and West Assam. And so on.

However, there is still a window of Claims, Objections and Corrections which will start and applications from the excluded applicants will be accepted from 30 August 2018 to 28 September 2018. The disposal period and procedure are yet to be notified.

Many of the people who are at risk of being rendered stateless can be saved and included in the register if the procedure of dealing with, and disposing of, the applications are formulated keeping in mind the humanitarian aspect of the process.

Please sign the petition here

In view of this it is suggested that the following points should be considered while framing Modalities in the Form of Standard Operating Procedure (SOP):

  1. Claims:

(1) At the minimum, six months’ time should be given for submitting applications for claims. Otherwise, a lot of people who have their origin in other states outside Assam or who work as migrant labourers in other states or abroad will be grossly prejudiced.

(2) An opportunity to establish citizenship by birth under section 3 of the Citizenship Act, 1955 by producing birth certificate or other admissible evidence of birth in India within the period specified should be given to the applicants.

(3) An opportunity should also be given to the applicants to establish citizenship before 7 December 1985 being the date on which Act 65 of 1985 that incorporated section 6A in the Citizenship Act, 1955 came into effect since as per subsection 7 of section 6A the provisions of section 6A is not applicable to them.

(4) The persons to whom Proviso to Section 2 of the Immigrants (Expulsion from Assam) Act, 1950 applies should be included in the NRC on the basis of direct or circumstantial evidence.

(5) While considering Claims applications, Sub-paragraph 3 of Paragraph 3 of the Schedule titled Special Provision as to Manner of Preparation of National Register of Indian Citizens in State of Assam framed under Rule 4A of the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003 should be applied in appropriate cases. One of the reasons for exclusion of such a large number of people is little or non-application of this provision in districts of Barak valley and West Assam. There were people inhabiting in the area now under the 3 districts of the valley for centuries before it was annexed to the British domain by the East India Company and later joined with Assam.

(6) Those minor children whose parent/s is/are included in the final draft but who themselves are excluded from the list due to defects in link documents should be included on the basis of oral evidence or they should be given an opportunity to obtain other documents including birth certificate without hassles. Otherwise, it would be absurd to think that such children emigrated from Bangladesh leaving their parents behind.

(7) In case of married women certificate issued by Panchayat secretaries should be accepted as a link document. Such certificates have been allowed in case of married women after a lot of consideration by the Hon’ble Supreme Court because there is a possibility that no other documents will be available for them. Supporting oral evidence should also be admitted in such cases.

(8) Where the applicants fail to prove link with accepted legacy person by producing prescribed documents but insist on the relationship, they should be given an opportunity to prove the claimed linkage by DNA test conducted outside Assam at the state expense.

(9) No original application or claims application should be rejected on the ground that the documents submitted could not be verified. Their cases may be kept on hold until verification is done. Verification is the responsibility of the state.

(10) Any valid document establishing relationship with the legacy person of the applicant including PAN and ADHAAR cards should not be rejected on the ground that pan card is issued after 2015 and ADHAAR card is not being issued in the state of Assam officially.

(11) Minor mismatches and discrepancies in names, addresses, ages and other details in the documents relied by the applicants should be ignored and the probative value of the documents should not be considered affected.

(12) Order rejecting original application or claims application should record reasons for such rejection in detail dealing with each ground separately.

  1. Objections:

(1) No objection application should be accepted unless the person objecting knows the person objected to personally and sets forth reasonable grounds for such objection in the application.

(2) The notice of hearing in case of an objection should clearly state the grounds of objections to enable the concerned person to prepare her rebuttal. Such notice should be served with all seriousness giving at least six months’ time personally by the local NRC Seva Kendra (NSK) officials. Unless there is an endorsement of the notice receiver, the service should not be treated as complete.

(3) Without giving an opportunity of cross-examination of objector no objection should be accepted.

  1. Corrections:

(1) Officials who know the language of the applicant well shall be entrusted with the task of correcting names and other details.

(2) There should be a separate system of transliteration in Bengali and other languages to avoid spelling errors in names and other details published in those languages.

Please sign the petition here

CJP Urgent Appeal: Stop Move to Make Assamese Muslims Homeless & Stateless Sign our Petition NOW!

April 26, 2018

(BHRPC forwards this Citizens for Justice and Peace petition to protect bonafide Indian citizens from enforced statelessness)

A humanitarian crisis is underway in Assam as you read this. The National Register for Citizens (NRC), a record of ‘legitimate’ Indian citizens living in Assam, is being updated for the first time since 1951. The ostensible objective is to weed out ‘Illegal Bangladeshi immigrants’. However, the numbers tell a chilling story… one of a conspiracy of ‘othering’ and exclusion.

NRC Appeal

Representational image by CJP

3.29 crore people from 68.27 lakh families in Assam have submitted over 6.5 crore documents with the National Register of Citizens (NRC) to prove their Indian citizenship. But the NRC recently published a list of only 1.9 crores as legal citizens.

A huge number of 1.39 crore Assamese, almost all Muslim, are under threat of having their legitimate citizenship revoked. CJP believes this is discriminatory. Join us and raise your voice against this injustice. Sign our Petition NOW!

  • We demand an immediate halt to this anti-constitutional and potentially polarizing move.
  • We demand an end to this attempt to brand all Muslims as illegal Bangladeshi immigrants.
  • We demand that corrupt local officials are NOT empowered with coercive powers to unilaterally decide fates of entire families.
  • We demand a stop to dividing Assam for narrow political gains.

Raise your voice against this now. Sign our petition.

The appeal was published on CJP website and reproduced here for wider dissemination.