The case of Mohammad Sanaullah — where Sanaullah, a former soldier, was declared a foreigner by an Assam Tribunal — exposed a gaping hole in the National Register of Citizens. No doubt, the state will scramble to correct the injustice. But for the poor in the state, nobody will bother.
A tribunal meet on the NRC and the Citizenship (Amendment) Bill (CAB), 2016, revealed that the Muslim minority in the state is angry at the sheer injustice of millions of them being suddenly declared foreigners. Some have been put in detention centres in violation of international law. According to the National Human Rights Commission, they face deplorable conditions. They are terrified as they anticipate employment termination and denial of government health and education services.
On the other hand, the indigenous and tribal people of Assam are fed-up with what they consider to be their growing marginalisation: Unchecked in-migration has continued despite the Assam Accord of 1985, an enactment intended to curb in-migration. They are furious at the central government-proposed CAB, which will regularise millions of migrants. Fortunately, leading members of both communities have displayed extraordinary statesmanship. The highlight of the meet was an exchange with some tribal leaders who, when asked if they would press for deportation of those declared “foreigners,” answered — off-the-record — that they would not take such an extreme stand. Rather, they said the burden of in-migration ought not be on Assam alone.
Civil society is categorical that governments, in the past, betrayed them by not implementing the Assam Accord, and wants effective protection of the rights of the indigenous including prohibition of land transfers: They have become a rapidly shrinking minority in their own land. And the proposal to enact the CAB is seen as the last straw.
The central government’s move to establish the NRC and deport four million residents of Assam also leaves India vulnerable to the charge of ethnic cleansing. There are millions of stateless people in the world, and India has now added four million to the list: That these people have lived in Assam for decades and are entirely integrated into the local community makes the Indian case stand out on the international stage for its sheer inhumanity.
Article 15 of the Universal Declaration of Human Rights affirms that everyone has a right to a nationality. The UN Convention on the Reduction of Statelessness, 1961, creates an international obligation to prevent statelessness and prohibits the withdrawal of nationality in situations where persons would be left stateless.
The judiciary, which could have played an important role in restraining the government, has added fuel to the fire. It is one thing to direct measures to prevent illegal migration, and quite another to propose forced deportations. It is perfectly lawful for the state to identify and evict subversives within a migrant population, but it is not permissible to collectively punish millions of poor migrants. Thus, state action must be directed towards sealing the borders and regularising those who have resided in India for decades — as has been done by the Supreme Court in the case of the Chakmas.
The NRC process, however, is downright disgraceful and bereft of the rule of law. Relevant panels have heard heart-wrenching testimonies of people who had their citizenship stripped away in the most arbitrary manner. To establish citizenship, the burden of proof has been shifted — by unconstitutional legislation — to the migrant. The state can arbitrarily pick up members of the minority community, accuse them of being foreigners, and then pack them off to the Foreigners Tribunals to prove their innocence: The presumption of innocence, in this whole process, has been done away with. The migrants are required to produce documents to prove their presence in the state prior to 1971. This is an onerous condition to have in a state where floods are a regular feature that drown homes and destroy records. The poor, in any case, find documentation impossible to grapple with. History will condemn this exercise as ethnic cleansing, pure and simple.
The Foreigners Tribunals are required by law to have judicial members. Tribunals without judicial members are unheard of. And yet, the Foreigners Tribunals flourish with an ever-increasing number of non-judicial members. Their appointments depend on the advocate’s closeness to the political powers-that-be. Their tenure extensions depend on the number of persons they have declared foreigners. Their understanding of the law is sometimes so poor that people declared Indian citizens are tried again, until a tribunal finally declares the person to be a foreigner. The legal principle of res judicata, we are told, does not apply.
The judiciary should have kept its distance from this communal exercise that can only bring India shame at the international level.
The writer is a senior advocate, Supreme Court of India, and founder director of Human Rights Law Network