Posts Tagged ‘Statelessness’

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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INDIA: Minting a huge humanitarian crisis with national citizenship register in Assam

September 1, 2018

BHRPC wishes to forward this Written Submission to the 39th Regular Session of the United Nations Human Rights Council by the Asian Legal Resource Centre on the process of preparation of National Register of Citizens for Assam, India.

The Asian Legal Resource Centre (ALRC) wishes to draw the attention of the United Nations Human Rights Council to the draft National Register of Citizens (NRC) that India has recently launched in the North Eastern state of Assam and its far reaching consequences not only for the country but also for South Asia as a region and the world too.

The ALRC also wishes to draw the attention of the Council to the fact that the final draft list leaves a whopping 4,007,707 persons out of a total of 32,991,384 people who had applied. The exercise is accused of gross negligence despite being mandated and monitored by the Supreme Court of India.

The final draft is full of problems ranging from personal tragedies like that of a single family member left out of hundred plus members of an extended joint families to at places whole communities are being left out. Those excluded include even persons like family members of a former president of India, veterans of Indian security forces, policemen, kith and kin of legislators to the poor who have no papers to show.

Many of those excluded complain of reasons behind their exclusion being subjective biases and the inherent flaws in the NRC of 1951 and the electoral rolls of 1961 and 1971 that make up the core of the ‘legacy data’. There are many cases in which the direct descendants of those figuring in the NRC of 1951 having been left out from the final draft. The primary reasons behind this include clerical errors resulting in misspelt names right from the parents to those of the claimants now, mismatched relationships and so on. Most of the people being very poor and living in areas routinely affected by floods have also lost their documents.

There are also large-scale complaints of the sectarian biases based on linguistic identity having played against even genuine claims of many of those left out. Chief Minister of West Bengal, a state neighbouring Assam, has complained of Bengali speakers having borne the brunt of the exercise with about 3.8 million of those left out from the NRC, or almost ninety percent, consisting of them.

There have also been allegations about a systemic bias against Muslims, a religious minority community in India and Dalits, erstwhile victims of untouchability now protected by the constitution and listed as Scheduled Castes. Matua Mahasangha, a religious organisation consisting principally of Namashudra Dalits with origins in Bangladesh, gives credence to this argument and claimed most of those affected are members of the community.

The argument gets further support from the fact that India has seen a continuous influx of Hindu refugees, mostly poor Dalits, fleeing persecution in Bangladesh. Studies estimate the total numbers of those who came to India seeking refuge at around 11 million, settled mostly in West Bengal, Assam and Tripura.

Though both the government and Supreme Court of India have promised another chance to all those left out to prove their citizenship along with no coercive measures against them till then, many fear losing their citizenships as all the documents they had have already been produced. Estimates of those finally left out are as high as 2 million.

Further complicating the situation is the fact of Bangladesh’s stern refusal of having anything to do with those left out. Authorities in Bangladesh have already called this issue an ‘internal matter of India with ethnic undertones’. This effectively turns those finally left out as stateless people with nowhere to go adding almost 2 million to already huge number of 10 million people currently estimated to be stateless.

That gives rise to the fear of large internment camps for those excluded from the final NRC list, violation of their human rights and another humanitarian crisis for the world.

In light of this, the ALRC urges the Council to:

1. Ask the government of India to exercise extreme cautiousness in the registration of the citizens and ensure that not a single genuine citizen of India is left out because of clerical errors or a lack of documents missing because of reasons beyond the control of applicants.

2. Ask the government of India to mobilise all authorities in the state of Assam as well as other states like West Bengal, Bihar and others from where many of the people excluded from the draft list come from to cross check their claims and help them secure their documents.

3. Ask the government of India to take concrete measures to dispel the allegations of discrimination against people on the basis of religion and caste and that nobody is denied citizenship because of discrimination.

4. Ask the government of India to urgently engage with the government of Bangladesh to find solutions in case of people still getting left out of the NRC as it claims that most of the ‘illegal’ immigrants are from Bangladesh.

5. Ask the government of India to not take any coercive action and deny people of their fundamental human rights and work for a humanitarian solution to the impending crisis.

(The submission was first published in the website of Asian Human Rights Commission and here it is reproduced verbatim for further dissemination)

Reading Kafka and Agamben through the NRC of Assam

August 18, 2018

Can State render its own citizens stateless post facto after they have long lived in a country? Can the state deny the ‘right to have rights’ to those who were born or are descendants of those who were born in its undivided territory? Ought courts of law, by decrees, deny fundamental rights to persons by enacting what is called ‘due process’? How many miles has one to go before one proves oneself again and again to be a citizen even after discharging all constitutional rights and duties, especially after being an elector who elected several governments? Asks Prasenjit Biswas

assam-nrc2

The categorisation of citizens into “D” voter, suspected foreigner and thereafter being incarcerated in detention camps have been part of the lived experience of several hundreds of thousands of the minority — both Hindu and Muslim population of Bengali origin people– in Assam. The vast majority of those left out (number is a staggering 40 Lakh plus), from the final draft of the NRC, are those who are Bengali Hindus and Muslims of Assam. Albeit many members of other smaller minorities like Karbis, Bodos, Mishing, Moran, Motok, Koch Rajbangshis and some members of even the Axomiya community are also excluded.

In The Penal Colony
The situation of this 40 Lakhs left out bring to mind Kafka’s existentially stark, dark and fatalistically charged ironical story entitled “In the Penal Colony” (1941)[1], where the Officer in charge of the machine as the last proponent of what is called justice machine, firmly believes in the form of justice meted out by the machine as ‘infallible’. The Condemned does not know that he has been given death sentence, as the machine inscribes the law that the Condemned has supposedly broken on his body in a quick span of twelve hours to lead him to death. The dignified European visitor called Explorer, who encounters such a ‘justice machine’ for the first time refuses to get persuaded by the Officer to opine to the Commandant that the machine be set free as it is no longer able to give sufficient punishment on the Condemned. In a profound reversal of meting out justice to the Condemned, the Officer believing the inefficacy of the machine sets the Condemned free and in his place sets the machine on himself with the word “be just” to be written on his body. The machine quickly stabs the officer to death denying him the mystical experience that the Condemned used to get from it for twelve hours before they were led to death.

NRC as an objective procedure, as per belief of some hardliners, found out 40 Lakhs ‘ghuspetiyas’ (infiltrators) and/or Bangladeshi foreigners and the only justice to be done to them is to ‘disenfranchise’ them and deprive them of all the governmental facilities except that they will be given only food and shelter. Many such pronouncements by important state functionaries and public leaders bring back to the mind what the ‘Dignitary’ in the Kafka story did: he only privately gave his opinion about the justice machine to the Commandant which cannot be given publicly and then left before he could be called to give an official account. This made the poor Officer believe that the machine will act according to what is just and fair, which also might have been the opinion of the dignitary given in private to the Commandant of the machine.

What Kafka showed is a paradigmatic existential crisis that lies in believing in a justice machine, which does not go by the very commitment and faith to justice and commits the most horrendous act of penalization of any Condemned. Terming the entire 40 Lakhs left out as ‘foreigner’ or ‘infiltrator’, sounds like a mass penalization, which of course, law in vogue does not permit. Home minister Rajnath Singh maintained that no action could be taken on anyone whose name is excluded until everyone is given sufficient time for an imminent ‘claims and objections’ procedure. Indeed the justice machine gets rightly guided and directed as per the extant legal provisions, but the condition of those who are left out remains what Kafka described as the Condemned. In the story, Kafka showed the role of the Soldier as only to guard the Condemned. In an eerie enactment of this, 200 companies of armed paramilitary forces are deployed in Assam and many districts are under prohibitory orders disbanding assembly of five or more than five people. So much for civil and political rights of people, who are now guarded by the paramilitary and no one is allowed to express even a whimper of protest in public. The ‘left outs’ are only supposed to seek justice through ‘claims and objections’ procedures or else, they are to go to appeal to higher courts, as the whole process is supervised under the  two member bench of the Supreme Court of India.

In such a condition, many have felt totally helpless and existentially ‘abandoned’ to a chilling future. In a startling case, a grandfather committed suicide on not finding his grandson and granddaughters names in the final list.[2] Similarly a farmer’s family, whose name did figure in the first draft finds it missing in the second draft as reportedly surname of his grandfather and his own surname do not tally. The report explained it as a practice in Muslim societies of Assam quoting the concerned head of the family, farmer Samsul Hoque from Hathisulapam of Kamrup district of Assam.[3] In yet another widely discussed case, litterateur and veteran journalist Shri Manindra Dutta from Silchar passed away in distress by finding none of his family members’ names in the second draft. He was particularly well known for his role in language movement of 1961 of Barak Valley of Assam. Earlier suicides of Hanif Khan in a place near Silchar on not finding his name in the first draft has already showed the desperation and angst in the individual and collective psyche of large section of people, whose test of nativity is connected to their ‘different’ ethnic origins. Indeed a new syndrome called NRC syndrome has arisen, and its social and political psychological impact can be felt on ordinary individuals who are affected by uncertainty created in procedures of official ‘satisfaction’.[4] A deeper existential symbolism arises in Centre granting crores to set up a brand new detention centre in Goalpara signifying the fate of probable stateless people post NRC.[5] What detention camps do, could be considered as a kind of indefinite detention, which even hard-core criminals do not suffer. Many lodged in the detention camps prove, after a complicated legal battle that they are wrongly suspected as ‘foreigner’ or as ‘doubtful voter’, but by then, a lot is lost in life inside the indefinite detention. In fact simultaneous procedures of NRC verification, issuance of foreigners’ notices and “D” voter multiply the possible victimization of many and it becomes immensely difficult to get any iota of justice for the condemned, as passing one test will be followed by another trial in many cases. From the first draft of NRC in which someone and half million people whose names figured after due verification of their ‘legacy data’ are dropped in the second draft as there are other procedures pending in their names. This shows the excruciating drift of the justice machine that can hold parallel trials.

Before the Law
The spate of shocking news and suicides did not even halt for a moment.[6] Only a few days ago, a man called Nirmal Paul committed suicide in a place near Katigorah in Silchar on not finding names of his family members in the final draft.[7] In another startling incident, little boy Haider Ali Khan who saluted tricolor braving flood water last year in 2017, the image of which went viral, did not find his name in the NRC.[8]

The NRC syndrome affects much more than mere 40 lakhs. As it is widely known that some members of a family are excluded and families are partly included creating the conditions of the syndrome affecting other included family members. Going by this at least two to three times more individuals than this 40 Lakh are affected in a possible scenario of being decitizenized. What is worse is every such probable decitizenized citizen will have to know formally the reason for non-inclusion and apply for inclusion again through procedures of ‘claim and objections’. Isn’t this an affront on ‘natural rights’[9] of being a citizen of India? In a democratic state like India, such a sordid picture of decitizenization is pushing the citizens beyond limits of human rights and human dignity? Can rule of law operate by creating such a penal colony in a manner of Kafka’s imagination? Can’t there be a more dignified procedure free from suspicion and hassle free method of verification without any harassment with sufficient time at hand? It is stated that NRC exercise is carried out in the supervision of country’s top court, but things are decided on the ground by the executive authorities such as Local Registrar of Citizens’ Registration (LRCR). The supervision is only partial in terms of setting the norm, but the ground level execution and decision are made by local authorites.

This again reminds another much discussed short story of Kafka entitled, “Before the Law” in which the gatekeeper of law does not allow one who waited a lifetime to enter the doors of law.[10] The doorkeeper informed the entry seeker that the entry door is made only for him, but the protagonist dies after a lifetime wait to enter the hallway of law and then the doorkeeper informed the man just before his death that he is going to shut it forever. Anyone seeking an entry in the NRC and whose name does not figure faces the potential “before the law” situation, in which their entry gets circumscribed by procedures on which they have either no say or no control.

State of Exception
One is reminded of Giorgio Agamben’s characterization of ‘state of exception’, where ‘homo sacer’ are reduced to bare bodies, stripped of all their civil, political, economic, social rights and the whole society turns into a camp and the State as the sovereign enjoys an absolute ‘monopoly of violence’ by enforcing law. Law is enforced by making an exception to very law itself and then by performing such an exception by an act of anomie, which also is an ‘originary violence’ involved in the very ‘force of law’. In other words, legalized violence in a state of exception marks everyday production of biopolitical bodies that lack all autonomy and sovereignty.[11]

The biopolitical body of NRC left outs of more than 4 lakhs excluded people is the ground of enactment of law of exception that throws them out of the sphere of legitimacy. The exception is made through the body of laws before it is enacted on the flesh and blood people. In the complicated legal architecture of NRC, there are several such exceptions by way of special provisions inserted specifically for Assam. Section 6A of the citizenship act, 1955 is an Assam specific section that introduces a cut-off date for citizenship for Assam, which is 25th march, 1971. This makes citizenship in Assam very different from rest of India. For example, an Indian citizen who is born after 1971 cannot be included in Assam’s register of citizens unless she has a linkage with her parents who were ordinarily residing in Assam prior to 1971. Isn’t this a recipe for dual citizenship in India? Exception is also made to sub-clause 7 of 6A of citizenship act, 1955 which clearly exempted people who are citizens of India until 1985 from any test of citizenship in the conduct of NRC process as this sub-clause is ignored in NRC procedure. If this sub-clause is taken into account then people who are citizens of India in Assam should find their names automatically included in NRC.

It is widely contended that citizenship for rest of the India has a cut-off date of July 1948, while in case of Assam it is 25Th march, 1971. The Constitution of India does not have any such cut-off date and categorizes people and their chances to be an Indian citizen are based on circumstances described in various clauses of citizenship act, and all these prescriptions define what is called a ‘due process’ to be followed uniformly across the country.[12] The thrust of India’s citizenship has been ‘universal franchise’ and certainly not mass decitizenization and disenfranchisement. If 40 lakhs are found to be not eligible to be there in the NRC, most of whom have elected governments in many elections, isn’t it a case of massive aberration that governments being elected by so called ‘foreigners’ discovered post facto must resign, if they are elected by these noncitizens? This brings into question whether a decitizenized citizen is same as a foreigner or a noncitizen who is suspected or declared to be so post facto. In case of Assam, suspected foreigners are often subjected to a tortuous process of trial combined with emerging psychological, ethnic and political pressures nearly break them unless they have an exceptionally strong socioeconomic background.

There is a shifting of onus to a citizen to prove his or her citizenship, which is a procedure adopted for an identified foreigner to prove her bonafide, but ironically enough an exception is made to this in Assam. The NRC procedure probes into documents of parental linkage and the procedure of verification by sending documents to the issuing authority kept everyone on their toes. In the verification procedure stated in the law verification has to be done comparing with the original has been extended to sending documents issued by other states to those states to verify them. This insistence has resulted into large number of documents issued by central and other state government not verifiable, which are submitted by applicants. This is how onus on an applicant shelved the responsibility of the State and kept the fate of the applicant indeterminate by the very process of verification. On verification, just as many documents were not found to be correct, although these documents are issued by some authority under law, the penalty falls on one who is issued such a document and not on the issuing authority. In yet another stark exception, certain documents were declared as weak documents by NRC authorities midway even after the first draft  was published terming many important documents such as birth certificate, citizenship certificate, refugee certificate etc. as weak documents[13], as a consequence of which, many names might not have been found eligible for inclusion.

One of the major exception within citizenship act is the idea of ‘legacy data’ by which an Indian citizen cannot be eligible to be included in NRC in Assam unless he or she has pre-1971 legacy in Assam. The other exception is turning the enabling provisions of 6A that enables a pre 1971 citizen to establish his bonafide without any testing procedure into a matter of onus placed on every citizen. Again, a undefined category of “original inhabitant” (OI) is introduced in 3(3) of 4A of citizenship rules and thereby creating an implied category of “nonoriginal inhabitant” on the assumption that original inhabitants do not preserve documents and they do not need to submit documents to prove their nativity, while in case of nonoriginal inhabitants, a strict method of probing including a long drawn method of verification is drawn up. This puts into question even government issued documents in case of non-OI people. Going by this, none residing in Barak valley was termed as OI and thereby showing how the process was interfered by implied discrimination between two categories of people. The historical fact remains that certain parts of Assam, such as Barak Valley and Goalpara were attached to Assam by the British in 1844, areas which are assumed to be inhabited by people who are not ‘original inhabitants’ of Assam, while most of people residing in those areas have their origins in undivided British India of Sylhet and Rongpur districts. Post-partition, the Constitution of India accepts the consequential effects of partition on behalf of people who suffered partition, but NRC procedures does not give appropriate consideration for displaced people residing in their own districts that are partitioned in 1947, especially when it created a category like ‘original inhabitant’. It is widely touted in popular discourses that people whose surnames could be found outside Assam, onus of proving nativity lies on them.

What future awaits these 40 lakhs nonincluded people? Many of them are born in India and yet NRC procedure did not find their documentation to be adequate. By creating a set of reasons and procedures that are not deemed in the Constitution, large number of poor, illiterate and linguistic and religious minorities are rendered in a near stateless situation. The procedures proposed in ‘appeal and objection’, as per reports allow an equal place to ‘objections’ that can be raised to any name included in the final draft of NRC. Some vigilante groups expressed their dissatisfaction over dropping only 40 Lakhs, as they believe that number should have been more. Opening up an objection procedure on a matter like citizenship will bring into play all kinds of subjective stereotypes that exist among people in objecting to their inclusion on the basis of religion, language, region and other such divisive social categories, which has the potential of upturning what has been included in the draft by causing huge harassment of again proving one’s citizenship before a juridical authority. This opens up a procedure of restarting a fresh procedures for crores of applicants, which also is a possible nullification of the very sanctity of the NRC process conducted so far. As the process is called ‘at the stage of draft’ creating unwarranted doubts about the validity of the two drafts that have already been published after spending huge public funds, a process of open objection will further emasculate it into an arbitration procedure, something that is never stated in matters of citizenship in the Constitution.

Pronouncements made from various quarters about deporting them to Bangladesh, or denying them fundamental rights is a grave concern from the point of view of human rights. Going by Universal Declaration of Human Rights (UDHR), 1948, every person is entitled to the right to belong to a nationality and no person can be rendered stateless without due process, which has to be mandatorily upheld in any process such as NRC. Due process cannot be made exceptional by placing the entire onus of proving citizenship as nativity on a citizen, as it hardly conforms to basic standards of  justice, going by which someone’s status remain unchanged unless proven otherwise after providing all safeguards of defence to a person.[14]  If a process is judged by its outcome, production of 40 lakhs near stateless people is itself a great exception in contemporary history of modern state system in the world. Further 40 Lakhs get multiplied by at least threefold if we take total number of family members affected by non-inclusion of some or other of their family members. This huge number of people affected creates a condition of statelessness as their citizenship is perpetually suspended by the State to which they belong and are supposed to enjoy inalienable constitutional rights to be its citizens.

(Prasenjit Biswas is an auhtor, human rights activist and an analyst of sociopolitical developments of Northeast India. He is based at Shillong. His last published book is entitled, Between Philosophy and Anthropology: Aporias of Language, Thought and Consciousness, Notionpress, Chennai, 2017)


[1] Frantz Kafka, “In the Penal Colony” can be read from https://en.wikipedia.org/wiki/In_the_Penal_Colony, accessed on 12.8.2018.
[2] https://www.thehindu.com/news/national/kin-left-out-of-nrc-assam-man-commits-suicide/article24627220.ece, accessed on 14.8.2018.
[3] Sumir Karmakar, “First-draft names go missing”, The Telegraph, Guwahati edition, Monday, the 13th August, 2018, p.1 continued to p.4.
[4] Subsection 3 of 4A of The Citizenship Rules, 2003 as amended in 2009.
[5] https://indianexpress.com/article/north-east-india/assam-gets-central-nod-for-new-detention-camp-for-declared-foreigners-5274530/
[6] Please read this: https://www.firstpost.com/india/of-no-fixed-abode-govt-should-accept-us-or-shoot-us-says-family-of-migrant-who-committed-suicide-in-2012-over-nrc-4970971.html.
[7] https://www.facebook.com/100013635074015/posts/487795025018329/ accessed on 15.8.2018
[8] https://www.business-standard.com/article/pti-stories/boy-who-saluted-tricolour-in-chest-deep-flood-water-not-in-nrc-draft-118081501328_1.html
[9] Citizenship Act, 1955 does not prescribe that a citizen has to undergo such ‘testing’ procedures, while rules pertaining to Registration of Citizens and Issue of Identity Card, 2003 framed thereunder by the Executive too do not state such procedures. In such a context the Supreme Court approved certain procedures which are not stated in any text of law and empowered the Executive to implement those procedures. Large part of NRC procedure falls under such domain of Executive action. If anything goes wrong legal remedy is available, but how many poor illiterate people whose names are excluded from final draft can pursue such remedy?
[10] Wikipedia entry on Kafka’s “Before the Law” states,
A man from the country seeks the law and wishes to gain entry to the law through an open doorway, but the doorkeeper tells the man that he cannot go through at the present time. The man asks if he can ever go through, and the doorkeeper says that it is possible “but not now” (“jetzt aber nicht”). The man waits by the door for years, bribing the doorkeeper with everything he has. The doorkeeper accepts the bribes, but tells the man that he accepts them “so that you do not think you have failed to do anything.” The man does not attempt to murder or hurt the doorkeeper to gain the law, but waits at the door until he is about to die. Right before his death, he asks the doorkeeper why even though everyone seeks the law, no one else has come in all the years. The doorkeeper answers “No one else could ever be admitted here, since this gate was made only for you. I am now going to shut it.”     From https://en.wikipedia.org/wiki/Before_the_Law accessed on 15.8.2018
[11] Giorgio Agamben, State of Exception, University of Chicago Press, Chicago, 200.
[12] Details of evolution of procedures of grant of citizenship to various categories of people  could be read in Ornit Shani, How India Became Democratic: Citizenship and the Making of the Universal Franchise, Penguin Random House India, Gurgaon, 2018, pp.225-47.
[13] Letter No. SPMU/NRC/DistCoEquip/68/2015/PtIV/177 dated 1st May, 2018 issued by NRC state coordinator.
[14] UDHR article 15 stated, “(1) Everyone has the right to a nationality.(2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.” Article 11 stated, no one could be penalized unless someone committed a penal offence. In case of NRC it is assumed that erstwhile citizens, by placing the entire onus on them of proving that they are not ‘illegal immigrants’, it is deemed to be a ‘penal offence’ if they cannot prove by documents and to the satisfaction of the Executives that they are Indian citizens.
(The article was first published in Sabrang and reproduced here verbatim for wider dissemination.)

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.

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Assam: Abuse, threats, intimidation and false case against human rights defender, scholar and writer Prof. Tapodhir Bhattacharjee

July 9, 2018

Assam human rights defender and renowned literary theorist and litterateur of South Asia Mr. Tapodhir Bhattacharjee has been abused, threatened and booked for an article written by him exposing the discriminatory and arbitrary procedure of updating of National Register of Citizens (NRC).

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Prof. Tapodhir Bhattacharya

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Following the publication of an article in by Professor Tapodhir Bhattacharjee, on Tuesday 3rd July, 2018 in the “Aajkaal“, a leading Bengali daily news-paper published from Kolkata, West Bengal, titled “Assam e Bangalir Shoroshojja” meaning “Bengalis on a bed of thorns in Assam” pointing out the racist and anti-people aspects of ongoing updation process of National Register of Citizens in Assam, at first, a section of electronic as well as print media based in Guwahati including the Pratadin Times, News 18 Assam etc. and “Edinor Sangbad”, “Axomiya Pratidin” among the print media branded him as a conspirator against the Assamese community. Then on 8 July a complaint was filed for registering a false criminal case against him in Dispur Police Station purportedly under section 153A of the Indian Penal Code, 1860.

Mr Tapodhir Bhattacharjee is a renowned and award winning literary theorist and critic and exponent of the contemporary theory and comparative aesthetics. Along with it, he is an essayist, poet, story-writer and the editor of a widely circulated little magazine “Dwiralaap”. He is a dedicated Human Rights Defender and at present works as the President of the Citizens Rights Protection Co-ordination Committee(CRPCC). This organization has been working against arbitrary deprivation of citizenship rights of the citizens and against continuous enforced statelessness of people of Assam for a long time. He is also an honorary member of Barak Upottoka Bongo Shahitto O Sanskriti Sammelan (Barak Valley Bengali Literary and Cultural Association), a prestigious body of litterateurs and intellectuals of South Assam. He is also the former Vice-Chancellor of the Assam University, Silchar and Tagore Professor of Delhi University. His father late Mr. Tarapada Bhattacharya was a freedom fighter and a member of the Assam Legislative Assembly from Katigorah Constituency, Cachar. Both of his parents were teachers. His wife Mrs. Swapna Bhattacharya is also a renowned and award-winning story-writer. Defaming and intimidating a person of such a stature and popularity is designed to stop him from his constant work mainly through writing and raising awareness for protection of basic human rights of linguistic and ethnic minorities of Assam as well as other human rights defenders working on the issue of arbitrary deprivation of citizenship rights of people in Assam.

After the Bharatiya Janata Party (BJP) formed governments both at centre in 2014 and in Assam state in 2016, one hundred more Foreigners Tribunals were set up and a large number of people including the indigenous people of Assam were served notices by these Tribunals and in many cases notices are not properly served and decisions are taken ex -parte declaring the person referred to in the case as a foreign national under a procedure that puts burden of proof on the suspect. After such decision, people are kept in detention centres indefinitely. Moreover, since the updation of National Register Citizens for Assam is going on in the state under a questionable procedure, a sense of helplessness and desperation have developed among the vulnerable groups of people to such an extent that at least ten people, including a man from indigenous Boro community and rest from people of Bengali origin, have committed suicide. More recently through a letter dated 11 June 2018 addressed to the Minister of External Affairs, Government of India, United Nations’ Special Rapporteur on minority issues, the Special Rapporteur on contemporary from of racial discrimination, xenophobia and related intolerance, the Special Rapporteur on promotion and protection of right to freedom of opinion and expression, and the Special Rapporteur on freedom of religion or belief have expressed their concerns and asked for a report from the Government of India on the issue of discrimination faced by people of Bengali origin. In such a scenario the term “bed of thorns”, which is a metaphor taken from the Indian epic Mahabharata, appears to have been used in the post-editorial essay to denote this extremely stressful and uncertain situation prevailing in Assam as an outcome of discriminatory, arbitrary and irrational procedure adopted by the NRC authorities.

The complaint filed in Dispur Police Station is has invoked section 153A of the Indian Penal Code, 1860. Section 153A provides punishment for promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony and is non-bailable. The opinion piece penned by Mr. Bhattacharya does not by any stretch of imagination falls under any penal provisions of law, let alone section 153A, IPC. He critiqued the state policies and actions that are resulting in arbitrary deprivation of citizenship of a large number of citizens of India including people of indigenous communities through a procedure already questioned by the United Nations Special Rapporteurs. There is not a single word in his entire essay that is calculated to promote enmity between communities. Rather the write-up seeks to promote harmony between communities through promotion and protection of equal rights of people of all communities living in Assam. The speech in the article is well within the protection of Article 19 of the Constitution of India as well as Article 19 of the International Covenant on Civil and Political Rights, 1966. And it does not fall under any of the eight items enumerated under Article 19(2).

His works as the president of CRPCC and member of other civil society organizations as well as in his individual capacity fall within the meaning of human rights works as contemplated under the UN Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms and as such he is also protected under the declaration as a human rights defender.

In this background it appears that the defamation, threats and the false complaint against Mr Tapodhir Bhattacharya is an effort to create an environment of fear among the human rights defenders and progressive community workers. It is to be mentioned that earlier also in the 1970s and 80s, hundreds of community workers were killed in Assam after branding them as “Badan” meaning “conspirator and traitors”.

Therefore, Mr Tapodhir Bhattacharajee is at risk of getting physically assaulted and even killed by the extremists. He is also likely to be harassed by the police in connection with the complaint against him. There are also concerns about safety and physical and mental well being of his family and friends and other human rights defenders working in Assam, particularly on the issue of arbitrary deprivation of citizenship.

 

Please sign the petition HERE

 (For more information,  Taniya Laskar may be contacted at bhrpc.ne@gmail.com.)

UN Special Rapporteurs express concerns over discriminatory procedure of NRC updation in Assam

June 22, 2018

Worried About Fate of Bengali Muslims, UN Special Rapporteurs Write to Govt. of India

The Wire Staff

June 21, 7:00 pm

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)

New Delhi: Four special rapporteurs of the United Nations Office of the High Commissioner for Human Rights (OHCHCR) have jointly written to Indian external affairs minister Sushma Swaraj expressing “serious concern” over the discrimination of “members of Bengali Muslim minority in Assam” in getting “access to and enjoyment of citizenship status on the basis of their ethnic and religious minority status”.

The letter, written on June 11 by special rapporteur on minority issues Fernand de Varennes, special rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance E. Tendayi Achiume, special rapporteur on the promotion and protection of right to freedom of opinion and expression Daid Kaye and special rapporteur on freedom of religion or belief Ahmed Shaheed, from the OHCHR’s Geneva headquarters, has categorically linked their concern to the ongoing process of updating the National Register of Citizens (NRC) 1951 in the state.

The update is being carried out under the supervision of the Supreme Court, to honour the Assam Accord signed between the All Assam Students Union (AASU) and the Central government in 1985 to “detect, delete and deport” all “foreigners” who entered the state, mostly from neighbouring Bangladesh, after March 25, 1971. The NRC authorities are mandated to ready the final draft of the updated citizenship register by June 30.

The letter has also sought a response from the Indian government “within 60 days” on eight different allegations of wrongdoing brought to their notice with regard to the NRC update, stating that it “will be made available in a report to be presented to the Human Rights Council for its consideration”.

When asked about the letter, sources in the MEA told The Wire, “Such letters on different issues are received all the time. Reply is sent based on inputs received from relevant ministries”.

The letter said:

“There is no official policy outlining the implications for those who will be excluded from the final NRC. It is reported that they will be treated as foreigners and that their citizenship rights may be revoked in the absence of a prior trial. They may subsequently be asked to prove their citizenship before so-called Foreigners’ Tribunals. In December 2017, a local government minister in Assam was quoted as stating that ‘the NRC is being done to identify illegal Bangladeshis residing in Assam’ and that ‘all those whose names do not figure in the NRC will have to be deported.’

In this context, the NRC update has generated increased anxiety and concerns among the Bengali Muslim minority in Assam, who have long been discriminated against due to their perceived status as foreigners, despite possessing the necessary documents to prove their citizenship. While it is acknowledged that the updating process is generally committed to retaining Indian citizens on the NRC, concerns have been raised that local authorities in Assam, which 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 NRC.”

The special rapporteurs particularly highlighted the May 2, 2017 judgment of the Gauhati high court which directed the Assam Border Police to open inquiries concerning relatives of those persons declared foreigners by the Tribunals. Calling it an “alleged misinterpretation” of the judgment by state coordinator of the NRC Prateek Hajela, leading him to refer two such cases (on May 2 and May 25, 2018) to the Border Police, they stated that the duty to conduct a prior inquiry before keeping such names out of the draft NRC has not been mentioned in the order.

“Once relevant NRC authorities have been informed about the referral of a case, the concerned family member will automatically be excluded from the NRC. Their status will be recorded as ‘pending’ until their citizenship has been determined by a Foreigners’ Tribunal. It is, therefore, alleged that these orders may lead to the wrongful exclusion of close to two million names from the NRC, without a prior investigation and trial. In addition, it is alleged that the orders contravene a High Court judgment of 3 January 2013 (State of Assam vs. Moslem Mondal and Others), which stipulates that automatic referrals to Foreigners’ Tribunals are not permissible as a fair and proper investigation is required prior to the referral of a case.”

The special rapporteurs have underlined that the “orders may also contravene section 3 (1) (a) of the Citizenship Act 1955, which grants citizenship at birth to anyone born in India on/after 26 January 1950, but prior to 1 July 1987.” Besides seeking clarifications and/or additional information on these allegations from the Indian government, they also sought to know the “steps taken to ensure that the NRC update does not result in statelessness or human rights violations, including arbitrary deprivation of citizenship, mass expulsions, and arbitrary detention” of Bengali Muslims.

Among seeking other information, the letter asked for data from the government on the ethnicity and religion of those individuals who would find themselves excluded from the draft NRC as well as those declared foreigners by the Tribunals, besides an official word on whether they would face detention or deportation.

The UN rapporteurs also sought “the present status” of the Citizenship (Amendment) Bill 2016 and asked why it doesn’t include Bengali Muslims.

“The proposed amendment suggests a broader context of vulnerability of Bengali Muslims to unlawful exclusion from Indian citizenship. While we do not wish to prejudge the accuracy of these allegations, we would like to express serious concern that members of the Bengali Muslim minority in Assam have experienced discrimination in access to and enjoyment of citizenship status on the basis of their ethnic and religious minority status. We are particularly concerned that this discrimination is predicted to escalate as a result of the NRC.”

The majority population in Assam has expressed their opposition to the Bill as it will divide the undocumented immigrants allegedly residing in the state on religious grounds. In the last few months, the streets have witnessed vociferous public protests demanding the withdrawal of the Bill as it violates the Assam Accord. As per the Accord, whoever has crossed over the international border into the state without valid documents after March 24, 1971, would be declared a foreigner without considering their religious affiliations. The state would thereafter make provisions for deportation to their country of origin. The Accord brought to an end a six-year-long anti-foreigner movement in the state, but its core clause of “detection, detention and deportation” has not been implemented yet. As per a tripartite agreement reached by the state and Central governments with AASU in 2005, the Registrar General of India, under the supervision of the apex court, is conducting the ongoing update of the NRC only for Assam.

The letter can also be accessed here.

This story was first published in the wire.in and has been reproduced here verbatim.

 

Assam: How the National Register of Citizens (NRC) has become the source of distress and even suicide for some people

April 30, 2018

Assam: NRC process creates racial and political categories of suspect and isolates them for penal retribution

March 27, 2018
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)

An unintended consequence of the process of NRC updation in terms of racial othering and profiling led to severe social conditions. Suicide of Hanif Khan and Bijit Sen, two cases that point to helplessness of ordinary citizens before this procedure of NRC updation in which right to legal redress is taken away by creating a stressful victimology. Hanif Khan, as revealed by his wife believed that he would be beaten up black and blue by state forces, as he thought that his name would not figure in updated NRC. If this is the perception created among linguistic and religious minorities by a process which is supposed to uphold constitutional values, the task of a democratic state has to be much more sensitive. Bijit Sen’s helplessness and anomie combined with his lack of income to create mortal fear, which cannot be downplayed as a mere psychotic response of the victim. Indeed victim’s testimony tell us volumes about the kind of agony and anxiety created by the uncertainty involved in this scrutiny and determination of citizenship in Assam.

By Prasenjit Biswas*

Although the updation of National Register of Citizens (NRC) in Assam is based on directives of a two member bench of the Supreme Court, yet method deployed for verification by authorities are quite novel and unheard of. Does anyone in rest of the country know about “legacy data” and “family tree”? Indeed Assam specific provisions made in The Citizenship (Registration of Citizens and Issue of Identity cards) Rule, 2003 under rule 4A that creates unheard of categories like ‘original inhabitant’(under clause 3.3) and ‘parental linkage’ (under clause 4.4) to verify the antecedents of an applicant for inclusion in the updation process. The entire burden of proof is shifted to the applicant in case of any doubt, while an administrative memo issued by home ministry of government of India (GoI) in 2015 asked for confiscation of various documents collected through valid means from such suspected category of individual and people. Although GoI instructions are meant for entire India, yet in case of Assam, it has negative ramifications and causes harassment for the so called suspects. Can suspicion be the basis of jurisprudence and on that basis the status of an innocent be altered as suspected guilty?

One may be curious to know the ideas behind ‘legacy data’ and ‘family tree’. Legacy data was published by NRC authority of Assam giving a code number to all the names available in 1951 census document as well as in electoral rolls upto 1971. The applicant has to refer to such names to establish their antecedent. The matter is more complex than what it reads here. Much of electoral rolls since 1952 are not available, as Assam prior to 1971 included United Khasi and Jaintia Hills (now Meghalaya), Naga Hills, Mizo hills and those electoral rolls are never found. Indeed 1951 census was so incomplete that many districts and many of the places do not have any mention therein. Many places mentioned in 1951 census do not exist anymore because of unstable geology and natural calamities. As far as ‘family tree’ is concerned, the NRC authorities have deployed such a concept to weed out fake legacy claims in cases where familywise unrelated people referred to legacy of the same ancestors. The procedure assumes that the validity of an individual’s claim to citizenship lies in genuineness of his/her belonging to a same line of descent from a common ancestor. But the problem is that families get dispersed, members of same family get separated and live separately in different contexts and hence all of them shall have to be forced to accept each other as members of the same family. Separated, estranged, divorced and distantiated in time and space members of once upon a time family are now sent legal notices to testify each other’s claim of common belonging, all because of shared legacy data of common ancestors. If Citizenship Act, 1955 would have stated such a procedure, it could have been deployed in the whole country and then probably Assam specific application of such an invented procedure could have had a reasonable legitimacy.

This takes us back to a little bit of history of independent India’s extremely ingenuous story of adult franchise and preparation of electoral rolls. Ornit Sahni’s (Faculty at University of Haifa, Israel) fascinating book entitled, “how india became democratic: citizenship and making of the universal franchise”(2018) recorded with due diligence that transition to adult franchise had an Assam specific obstacle in registration of partition refugees leading to historic declaration by BN Rau, advisor to Constituent Assembly of India that all refugees have to be registered on mere intent of staying at a place and their names be included in the electoral roll of the place. Against this, many civil society bodies of Assam wrote to Constituent Assembly asking for exclusion of those people who are not born in Assam causing concern among victims of partition from being excluded from citizenship of India. Needless to say that such contestation did not arise in case of refugees from West Pakistan in due process of registration and enfranchisement! This bit of history tells us that the newly independent state of India was sensitive enough to recognize humanitarian concerns post partition of India and the same continued through Indira-Mujib agreement, Assam Accord and the latest GoI order granting residency to displaced refugees in India who came from neighbouring countries due to religious persecution and other forms of civil and political disturbances. Only little difficulty was that the latest GoI ordinance excluded persecuted Muslims, by going against the spirit of secularism and nondiscrimination on the basis of religion or any other such social categories. What happened to many Non-Muslim detainees who are languishing in various detention camps, post-2015 is a matter of grave concern as the GoI ordinance is violated with contempt in many fresh cases of those who are pushed to the detention camps. The size and number of detainees in such detention camps are on the rise, while many are able to prove themselves to be genuine Indian citizens despite initial arbitrary proceedings against them.

In such a context of uncertainty, certain organizations led by ex-insurgents demanded that land rights be limited to indigenous communities excluding tea tribes, who have been there in Assam prior to 1826 Yandabu pact with the Governor of Burma. Certain other organizations are asking for dividing Assam and creation of Union Territory. The atmosphere is dominated by legal procedures of an uncertain kind and suspicion between communities asserting their homeland claims. In Bodoland autonomous areas, there is already a ban imposed on owning land on non-Bodos and the picture is getting murkier as large number of people are waiting to be stateless, disenfranchised and deprived of their fundamental rights guaranteed under Indian Constitution.

The constitutional right to citizenship, which is subject to fulfillment of specific conditions allows an escape route for those who are noncitizens. They are guaranteed right to life, which includes right to livelihood with only a restriction on participation in electoral process but gives an expansive definition of personhood based on human dignity and freedom from inhuman and degrading treatment are given a go by in such a situation. Recent circulars from ministry of home to states of the union asking for restrictions on movement of those who are declared foreigners and those who are suspected makes for a police controlled regime of rights.

Added to this, a process of deportation by force across the border in no man’s zone or restriction of fundamental rights of freedom of movement to residents of an enclave by security forces is a larger ramification of a ‘state of exception’ in the making. As if along with checkpoints, there are racial and political categories of suspect and a process of isolating them for penal retribution by wielding new forms of administrative powers. Does this gel with a vision of equality before law and equal citizenship, as the matter is not just a matter of a particular state but for the whole of India?

The unintended consequence of this process of NRC updation in terms of racial othering and profiling led to severe social conditions. Suicide of Hanif Khan and Bijit Sen, two cases that point to helplessness of ordinary citizens before this procedure of NRC updation in which right to legal redress is taken away by creating a stressful victimology. Hanif Khan, as revealed by his wife believed that he would be beaten up black and blue by state forces, as he thought that his name will not figure in updated NRC. If this is the perception created among linguistic and religious minorities by a process which is supposed to uphold constitutional values, the task of a democratic state has to be much more sensitive. Bijit Sen’s helplessness and anomie combined with his lack of income to create mortal fear, which cannot be downplayed as a mere psychotic response of the victim. Indeed victim’s testimony tell us volumes about the kind of agony and anxiety created by the uncertainty involved in this scrutiny and determination of citizenship in Assam.

Hanif Khan

Hanif Khan (Photo: The Guardian)

The diversity of India’s citizens in terms of multicultural and multireligious background of peoples, which still creates confusing identities cannot be legally reduced to legacy data and family tree, as the basic spirit of inclusion accepted by constituent assembly in terms of those who are born in undivided India and their descendents has to be upheld in all cases.

*Prasenjit Biswas is a human rights defender and a professional philosopher based in Shillong.

An edited version of the article was first published in the Statesman on 26 March 2018.

Assam: Creating a ‘state of exception’ in a space which itself is a ‘state of exception’ to the Indian state

March 24, 2018

Assam against itself: a reply to Sanjib Baruah

In response to Professor Sanjib Baruah‘s article ‘Stateless in Assam‘ which discussed a new focus on detention camps for ‘stateless citizens’, Suraj Gogoi, Gorky Chakraborty and Parag Jyoti Saikia reflect on the implications of reducing people to ‘bare life’.

The Concentration camps that came to the fore during the Holocaust, left a deep impact on human history. It showed us that hate can be nurtured to humiliate, torture, and reduce people to ‘bare life’. The concept of the ‘exception’ used by Hannah Arendt and Giorgio Agamben has been articulated in the context of Northeast India by Professor Bimol Akoijam, as to how the Indian state through the Armed Forces Special Power Act (AFSPA) inhumanely treats its own citizens and the whole region as a ‘different minority’. However, the manner in which Prof. Sanjib Baruah used this example in his article ‘Stateless in Assam’, in invoking the idea of camps sends chills down the spine, as he presents enforced settlements as normal human condition, a fate to be endured for some. His views on camps have been lauded by a number of caste Assamese intellectuals, amongst others. It has thus created a ‘state of exception’ in a space which itself is a ‘state of exception’ to the Indian state. This double exceptionality makes the lives of Hanif Khan, who killed himself over fears he was excluded from a list that identified ‘legitimate’ Assamese citizens, and a host of others extremely precarious.

Since Professor Baruah has invoked this idea of exception, let us in return, invoke the idea of love and solidarity. Martha Nussbaum notes that cultivating love instead of hate would make the world a better place to live in. The lack of love, in the public and in our emotions, should be an area of great concern. Hanif Khan and his family needed love and solidarity, not a reminder of Arendt’s work, which indeed became a mockery of his life. Such an injunction creates what W.E.B. Du Bois called ‘twoness’ or even a stranger. It is the worst form of alienation where you see yourself through the eyes of the other. Being poor is hard, but to be despised by the society, the state, and its institutions estranges an individual in everyday life. Becoming a ‘problem’ is a ‘strange experience’ itself, no one needs to reiterate the point that one is a stranger. Such things only amplify the distance and distinction. What does such a position from a senior writer on the Northeast inform us?

Hanif Khan

Hanif Khan. Photo (C) The Gaurdian

Professor Baruah’s article also misses out on certain fundamental issues associated with National Register of Citizens (NRC). The idea of an ‘original inhabitants’ state in NRC is contrary to equal citizenship, as arbitrariness and suspicion loom large around the identification process. The legacy data of 1951 and 1971 was taken as the basis on which the citizenship of the people living in Assam was to be determined. However, there was hardly any question raised about these legacy documents, since they were considered sacrosanct. The legacy documents were no census documents. Rather, they were rough notes books of census enumerators which lack official validity.

NRC is using majoritarianism in the worst possible manner. It misuses law in making minorities stateless. As a form of identification, non-inclusion reduces an individual to a lesser human being. Deportation is perhaps a bilateral issue, while death isn’t. A matter of life and death, fear and pain, should not be an issue of ‘business’ and ‘watching’.  His position ignores the reduction of people’s lives to a mere piece of document, the resultant alienation and social pain. His belief placed on public officials to ensure ‘accuracy’, leaves no space to question the process of preparing NRC. An argument such as this is surprising, since, for many students of our generation who became interested in studying the Northeast, his India against Itself taught us to question the state in the Northeast. It presented the rhetoric of state making, mired in violence. However, the rhetoric of suicide and a text on Holocaust is the last thing one should compare, particularly when it lacks sensitivity and love, which was evident the manner in which Professor Baruah ended his article.

Youngest son of late Hanif Khan, his mother in law and Raksha Khan (from left) by Taniya Laskar

Son, mother in law and wife of Hanif Khan. Photo: BHRPC

Professor Baruah’s assertion also suffers from taking a linear view of a very complex bureaucratic and social process. In this light, sharing an account written by Dr. Debarshi Das, a faculty in IIT Guwahati, of his own family.

My aunt Putul was born in Pandu in 1950s. Her parents came to Assam as East-Bengali migrants. She got married to a muffasil town and after her marriage, her name no more remained the same. In her in-laws family there were two other people with the same name, Putul and following from this her name was changed from Putul Guha to Kabita Das. In 2016, when police came to enquire about the citizenship status, they noticed the differences in her pre- and post-nuptial documents. Without any delay she was sent to detention camp at the age of sixty”.

One of the first proponents of detention or concentration camps in the context of Northeast was S.K.Sinha. One can read his letter to the President of India dated 8th of November 1998. His sentiments echoed a large group of ethno-nationalist that identified a common enemy in Assam—the Bangladeshi. Upamanyu Hazarika, a Supreme Court lawyer and convener of the Prabajan Virodhi Manch, is another leading voice in this thread of safeguarding the son of the soil by creating imagined victimhood which suppresses the actual victims as Prof. Prasenjit Biswas argues. Even Hiren Gohain voiced his agreement to the NRC and speaks of ‘legitimacy’ of citizenship. Hence, what we also wished to highlight through this reply is that Prof. Sanjib Baruah’s lack of a moral position is not an aberration, as we all know that even Hiren Gohain sympathises with the legitimate objective of the Assam movement, but not its method. They are just echoing sentimentalities that carry possibilities of violence, othering, and mob lynching. Will there be ever any room for human security or it’s a linear pre-determined march towards a state and thereafter region (NEI) consisting of a number of concentration camps by different names?

To conclude, we want to reiterate what Professor Ashis Nandy argued about the master-slave dialectic. One should stand with the marginalised or the slave, not because suffering is a superior experience or for they work or are oppressed, but because the slave represents a higher order cognition who treats the master as ‘human’, as opposed to the master who treats the slave as a ‘thing’. Arguing for camps is to become players in moral and cognitive ventures of oppression, or at the very least, a passive complicit.

This article is reproduced from The London School of Economics and Political Science’s South Asia blog in public interest.

About the Authors

Suraj Gogoi is a doctoral student in Sociology, National University of Singapore.

Gorky Chakraborty is a faculty member of Institute of Development Studies Kolkata (IDSK).

Parag Jyoti Saikia teaches at Asian University for Women, Chittagong.

Insiders, Outsiders and Improper Legalese: Test of Citizenship and ‘Foreigners’ in Assam

January 18, 2018

Prasenjit Biswas

A large number of Indian citizens who voted and elected governments in Assam as well as the central legislature are subjected to a process of verification of their citizenship documents. Now after verification, if a large number is rendered disenfranchised and stateless, the legal implication is that peoples’ representatives who are elected are elected by illegal electorate. So natural justice demands that these elected representatives cannot hold offices legitimately in case the electorate is found to be ‘foreigners’ and not citizens of India! 

nrc

NRC Logo

The first draft of National Registrar of Citizens (NRC) published in the midnight of 1st January, 2018 created more confusions than it resolved. It generated a discourse of Othering and exposed the exceptionalist and exemptional nature of the law-making in the context of Assam. The Citizenship Amendment Rules, 2003 concerning registration of citizens and issuance of identity cards under section 18 of the Citizenship Act, 1955 created an exception in case of Assam by adding a Schedule 4A under which updation of 1951 National Register of Citizens is presently carried out. No other state of the country follows rules laid out in Schedule 4A except Assam. The first draft of updation is now published that called for serious reflection on this whole legal process conducted under the supervision of two-judges bench led by Justice Ranjan Gogoi of the Supreme Court of India.

These special provisions inserted at various stages to the mother Act of 1955 on the ground leads to ‘profiling’ of people in terms of their religious and linguistic identities. Such profiling has a political angle. People who came to Assam until March 24th, 1971 due to referendum and partition of Assam as also due to separation of certain territories such as Khasi and Jaintia hills, Mizo hills etc. from Assam are somehow either accommodated or they have to prove their citizenship once again. Overall, the special provisions Schedule 4A are based on assumptions like ‘original inhabitants’ of Assam, which smacks of an unfounded category within the very idea of citizenship. The nondiscriminatory and equality based notions of citizenship enshrined in the Constitution of India of citizenship of “persons” as enshrined under fundamental rights and the rules framed in 2003 do not quite gel with each other. Special proviso 4A further undermines persons belonging to linguistic and religious minorities, as they are subjected to suspicion and arbitrary process of proving their citizenship by twisting basic presuppositions and principles of “equality before law” that have guided framing of the Indian Constitution.

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)

Especially the procedure for verification of documents under the overall execution of the NRC coordinator seems to be a difficult procedure. The documents are sent to issuing authority for verification. There are interesting legal issues here- for how many years an issuing authority is supposed to preserve a copy of the original document issued by them to a client  and whether the issuing authority is legally obligated to re-verify a document at the call of another office such as NRC department. Without taking into account these issues, documents are sent to the issuing authorities. The outcome is that large amount of documents remained unverified and the reason given is that records are not available and manpower for verification exercise too is not readily available with various State and Central governments. Now those whose records remain unverified, they will be subjected to arbitrary administrative hassles, especially when various ethnic bodies are suspect and target those who minority groups as “Bangaladeshis” and who are going to be excluded from updated list.

This is a slippery slope situation that makes the circumstances very grave and punishing for no fault of the victims of this systemic exclusion. It is assumed that those names that are not included are not genuine Indian citizens and god forbid, any genuine Indian citizens excluded due to this cumbersome verification process will have to struggle a long way to get back the status of being a citizen. Such cases will be referred to Foreigners’ Tribunal and after a cumbersome legal process one may be able to get a legal redress. Now politicians take hold of the slippery situation. They have started asserting that no genuine Indian citizen will be excluded without addressing the issue of procedure. That the applicant remains as the possible sufferer at the other end of this process of verification is no one’s concern. Instead, Assam’s former Chief Minister Tarun Gogoi said indigenous people won’t have to bother about such a situation, meaning non-indigenous religious and linguistic minorities only will have to be concerned if they face any such exclusion from updation. Another much celebrated democratic voice from Assam Akhil Gogoi has asserted in Delhi that two crores of Bangladeshis have to be deported from Assam. Noted intellectual Homen Borgohain asserted that certain parts of Assam such a Barak valley, Dhubri and lower Assam have only been parts of Assam’s geography but never a part of History. This is how linguistic and cultural and religious minorities are purged from imagination of Assam in which NRC process adds to the existential fear and agony of being reduced to rightless noncitizen. Recent assertion by Assam Chief Minister that those whose names will not figure in updated NRC, their fundamental rights will be taken away and they will be given only the right to food, shelter and life magnified this existential fear among those who are Indian citizens and whose names may not figure due to an inefficient procedure.

What Homen Borgohain has argued opens up a Pandora’s box. His concern is that it is because of the Bengali speakers of Barak valley and certain other lower Assam areas that Assamese is rendered as the language of minority in Assam. So he argued that Barak valley should be separated from Assam to regain “only the Brahmaputra valley as the land of Axomiya speakers”. It is widely believed in this context that the targets for disenfranchisement and de-citizenization are linguistic and religious minorities whose fears are compounded by a long drawn process of verification without stating any reason why certain documents are found incorrect or kept pending. Much needed transparency and statement of proper reasons for pendency to applicants who assume themselves to be genuine Indian citizens is not shown much respect. Rather the process resorted to arbitrarily drawn procedures by the Executive which are unfriendly and not supported by existing legal framework.

The larger point is that large number of Indian citizens who voted and elected governments in Assam as well as to the central legislature are subjected to this process of verification. Now after verification, a large number is rendered disenfranchised and stateless, the legal implication is that peoples’ representative who are elected are elected by illegal electorate. So natural justice demands that these elected representatives cannot hold offices legitimately in case the electorate is found to be ‘foreigners’ and not citizen of India! While the State NRC coordinator stated before the Supreme Court that in the first draft, the office has verified 2.38 crores cases of roughly 3.40 crores applicants, the draft incorporated only 1. 9 crores of people, keeping out 1.4 crores. This indicates as if a large section within this left over people may prove to be ‘foreigners’ and later they are to be rendered stateless. Before the second draft of the NRC, the coordinator stated that children who are born after 2003, their names will be included provided both their parents’ names and not one of them find a place in the NRC. The basic principle that those who are born in India will be Indian citizens is in the way of getting amended in an extra-legal manner by the Executive. This is legally implausible as the bottomline condition for children to be an Indian citizen is that one of the parents is Indian and the other is not an illegal migrant. A large number of post-2003 children now face this new conundrum. In the first draft, those whose names are part of “legacy data”, available right in the NRC database are excluded, citing that their verification is pending. No one is able to understand how the verification is conducted. Updates in the forms of press statements are yet to be substantiated by disclosure of full information to the applicant in the website.

The situation created its ripple effect in Bengal with Mamata Banerjee pronouncing that Bengal will give shelter to people who would suffer due to such a cumbersome process. She created storm in the tea cup by her repeated pronouncements to this effect. Political opinion in Assam got sharply divided on her protestation.

Overall, the situation needs able handling and skillful mediation to complete the NRC process in a just and fair manner.


Prasenjit Biswas chairs Barak Human Rights’ Protection Committee and is a political analyst.

A version of article was published in The Statesman under the title of “Insiders, Outsiders and Improper Legalese on 15 January 2018.