International Law and India’s National Register of Citizens

Arun Chauhan | archauhan9984@gmail.com

The final National Register of Citizens (NRC) list, which establishes the individual statuses of more than 30 million applicants, was released online on 31 August 2019. Amnesty International in its report has noted that over 1.9 million people were omitted from the final list, pushing them to the brink of statelessness. Inarguably, this is going to make India witness one of the country’s largest upheavals of people and the worst humanitarian crisis unfolding in Assam. Previously, the Supreme Court of India extended the deadline for the final publication of the Assam National Registry of Citizens due to allegedly wrongful inclusions and exclusions. The other demands of Centre and Assam, such as a 20 percent sample verification of NRC to find out the discrepancies over inclusions, was rejected by the Apex Court.

THE LONG-STANDING ISSUE OF “FOREIGNERS”

Historically, India has always had a strained relationship with Assam over the issues surrounding foreigners, individual identities and illegal immigrants. The Nellie massacre, one of the most brutal conflicts in the region, led to the death toll of nearly 2,000 Muslims within six hours over the inclusion of the word ‘foreigners’ in the electoral rolls. The violence was blamed on either sides and the signing of the ‘Assam Accord’ in 1985 somehow decided the issue over the term ‘foreigners’ for the time being by amending the Citizenship Act, 1955. Hence, all Indian-origin people, including those from Bangladesh who entered Assam before January 1, 1966, were deemed to be citizens. The ones who entered between January 1, 1966 and March 25, 1971 could get the status of citizens after registering themselves and residing in India for 10 years.

The last date to identify foreigners was decided as 24 March, 1971, the day before the Bangladesh Liberation War began. Currently, the NRC process aims to identify ‘illegal’ immigrants who moved from Bangladesh to Assam after 12 March 1971 and categorise those left off the register as ‘foreigners’.

PATH TO CITIZENSHIP

Last year’s draft register (July 2018) left out 4 million people, effectively declaring them undocumented migrants. They were allowed to file fresh claims to prove their citizenship; yet, the road to proving one’s status has been nothing short of a Kafkaesque legal process. Many news outlets have provided detailed accounts of thousands of people receiving 24 hours notices to attend re-verification hearings, which were located as far as 400 kilometres away, even double the distance. Notably, this is in violation of the Supreme Court’s order dated April 10, 2019 expressly prohibiting any hearings being held too far away from the residences of the applicants. The NRC authorities had been directed to “ensure that no inconvenience is caused to the persons required to attend the hearing, and see that they are not required to travel long distances, if possible”. Moreover, the re-verification procedure approved by the Apex Court provided that applicants must be served notice at least 15 days prior to hearings being held. The Chief Justice of India had even received an email from civil society members highlighting the effect of the government’s re-verification procedure, which had led people to adopt life-threatening measures to reach to the venue in such a short span of time. In response, government officials have claimed that they had provided the notices in due time and have the right to call for hearing even before an hour before the final version of the NRC had been released.

VIOLATION OF INTERNATIONAL HUMAN RIGHTS LAW

Before listing the specific violations under international human rights law, I draw attention to the joint letter from the Vice-chair of the UN Working Group on Arbitrary Detention and three Special Rapporteurs that highlighted the shortcomings of NRC process. The letter, at its outset, expresses its concerns on the absence of any official policy outlining the implications for excluded people, regular inconsistencies in registration process and the embedded bias in verification procedures. The letter notes with serious attention that the people scapegoated in the process and branded as ‘foreigners’ and ‘infiltrators’ mostly belong to Indian racial, ethnic, religious and linguistic minorities. Moreover, its Annexure points out numerous binding human rights obligations arising from the Human Rights treaties that India has ratified.

In particular, by virtue of the International Covenant on Civil and Political Rights (ICCPR), ratified on 10 April 1979—India is required to observe Article 12, which obliges States parties to guarantee the freedom to choose residence, and Article 27 relating to the realisation of minority rights. The General Comment No. 27 provides that any hindrance on freedom to choose residence must be justified based on Article 12(3) requiring States to indicate the reasons for differential treatment. I emphasize that India has not provided any such details to the Human Rights Committee to qualify the present conditions as an exception. Further, the Committee in General Comment No. 23 notes that the rights of minorities are available to all, irrespective of the status of their nationality. Their residential status does not affect their right to enjoy their freedom of expression, which is hindered in light of the forceful removal/upheaval of foreigners.

Notably, due to inadequate documentation, the claims of Assam residents were generally ignored and further exacerbated due to the reviewing body and tribunals’ insufficient capacity to curb such gaps in the evidences presented. The individuals as of now face de factostatelessness, after being denied the opportunity to effectively prove their citizenship and will be sent back to their country of origin or detention centres. This evident lack of proper legal representation and the burden to prove nationality (S.9 of the Foreigners Act 1946) clearly violates the spirit of civil and political rights guaranteed under the ICCPR.

The people who are not deported to their country of origin are kept in detention centres. The conditions of detention are deplorable and detainees are subjected to the same treatment as that of regular inmates. Detainees in these camps are separated from their families and are too poor to even afford the bond required for bail. It has been reported that many tribunals do not even have public prosecutors and people are kept in detention arbitrarily for more than two years in dire conditions. This reprehensible treatment clearly violates the basic elements of arbitrary arrest and detention under Article 9 ICCPR, which includes inappropriateness, injustice, lack of predictability and due process of law, as well as elements of reasonableness, necessity and proportionality. The Supreme Court of India in the case of Harsh Mander v Union of India, rather than dealing with questions related to indefinite detention, reacted with anger to the conditional release of the people who had spent more than five years in detention. The court observed that releasing such ‘foreigners’ would be endorsing an ‘illegality’. This failure on the part of judiciary to keep a check on executive actions has added another hurdle in the realisation of basic human rights.

INSUFFERABLE WAY AHEAD

The process of identifying foreigners has gradually become a highly politicised issue, which had witnessed the daily stories of people not being able to prove that they were residents of India before midnight on 24 March 1971. Exclusion because of factors, such as race and descent, is clearly prohibited under international law. This is enshrined in Article 1(1) of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), ratified by India on 3 December, 1968. Unequal treatment based on race, colour, or national or ethnic origin is categorically prohibited under Article 5 of ICERD. This mass exodus will certainly move alleged ‘foreigners’ to Bangladesh or nearby region, where there is no current assurance of basic rights to food, health and livelihood as there are no concrete negotiations or assurances in place to take care of their habitation. Assamese have had a long-standing struggle for their identity and rights, and the process of establishing the NRC has paved the way for further atrocities. In its extent, the situation of Assamese not only makes inhumanity evident, but also exposes India’s unwillingness to enforce international human rights law.

Arun Chauhan is a practicing lawyer at Gujarat High Court, India. His practice area mainly lies in Arbitration and Service matters. His previous work experience has been focused on international human rights law and public policy.