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Based on “unverified” documents, the Supreme Court in its judgement in the case of Sarbananda Sonowal “erroneously” equated migration with external aggression or invasion which, in effect, dehumanised migrants and infringed their rights to personal liberty and dignity. External aggression and internal disturbance thus “became a narrative and influenced all subsequent proceedings under The Foreigners Act”, opined the jury of a people’s tribunal comprising former SC judges Madan B Lokur and Kurian Joseph, former Delhi High Court Chief Justice AP Shah and Professor Faizan Mustafa, Vice Chancellor, Nalsar University of Law, Hyderabad, among others.
The jury also said that in the Sarbananda Sonowal Vs Union of India case, the SC invoked Article 355 of the Constitution to strike down legislation that would have placed the burden in a foreigner’s case upon the State. “The court thus established a constitutional requirement that the burden would always lie upon the individual accused of being a foreigner,” it said.
It raised serious constitutional issues such as “extensive use of sealed covers” to determine the methods to establish legacies (family tree) under the NRC (National Register of Citizens, which validates legal Indian citizens in Assam) and the court itself “undertaking what is essentially an administrative process i.e. the preparation of the NRC list”. “When the courts take charge of such processes, the system of remedies is virtually taken away,” it observed.
The two-day tribunal titled ‘People’s Tribunal on Contested Citizenship in Assam: Constitutional Processes and Human Cost’ was organised by Aman Biradri and other human rights organisations at the Indian Society of International Law, New Delhi, on September 7 and 8. The jury, that also comprised of former Planning Commission member Syeeda Hamid, Ambassador Deb Mukherjee, Githa Hariharan of the Indian Writers’ Forum and Professor Monirul Hussain, heard the the testimonies of those excluded from the final list of NRC and of various leading experts.
“We all agree that the NRC has spawned a humanitarian crisis. We worry because there are no signs of this crisis abating. Large numbers of minorities in Assam, whether religious, linguistic or ethnic, have lived with the fear of being told that they don’t belong in this country. They may, at any time, be marked doubtful voters (or D-Voter) and prevented from exercising their franchise. A local border police constable can again, at any time, accuse them with being foreigners and refer their cases to a detention centre. Even after the final register, there are many demands for selective reverification,” the jury observed.
The jury also took note of the role of the government and and the Centre’s proposed Citizenship Amendment Bill (CAB), along with the Foreigners’ Tribunal Amendment Order, 2019, and the proposed extension of NRC and tribunals across the country.
During testimonies, issues related with the shift of burdens of proof to the residents to prove that they were citizens, including the presentation of documents related to birth, schooling and landownership, which impoverished and unlettered rural residents anywhere would find hard to muster were discussed. It was also noted that even when documents were produced, they were often refused for discrepancies, in the English-language spelling of Bengali names, or in age.
With regard to the autonomy of Foreigners’ Tribunals – which they said are under direct executive control in terms of appointments of its members and their salaries and allowances, Justice Lokur said in his observation on the concluding session on August 8, “People of Assam have a worse time ahead. Tribunals are functioning in an arbitrary manner. They can devise their procedures and functioning on their own. There is no uniformity. Two-thirds orders have gone ex-parte because there is no uniformity in their functioning. Minor spelling errors have had huge impacts. You are bound to make spelling mistakes. Minor errors in spellings of names have excluded thousands of people from the final list of citizenship. It is a crucial matter. If one loses citizenship, he or she loses everything – even their fundamental rights. Therefore, these matters need to be looked into seriously.”
He found it surprising that if a person from Assam did not apply to be included in the NRC, he would become non-citizen or stateless in the state of Assam, but he may be a citizen of India in rest of the country.
Questioning why detentions have become “first options” and people in large numbers have been languishing behind bars for years in the name of detentions, he stated, “Detentions and jail have become one of the first options when the jurisprudence says bail should be the first option. Why is this happening? It is a question of human rights for a person to not be deprived of liberty and put into custody.”
He also criticised the legal aid authorities of the state and central governments for “failing” to perform their duties. “They have completely failed to protect people’s right to life and liberty,” he added.
He held “lack of planning” behind implementing the whole exercise as the main cause of “human cost”.
Stressing that international laws must be followed while dealing with migration issues, he said, “It is right that we are using the law of the land, but at the same time, we cannot overlook international laws. Since we are part of the world and we have flourishing economy, we cannot say the international community that look we don’t follow you.”
In his observation, Justice Kurian Joseph said the people are no more in a position to say that they are brothers and sisters of this country. “Lakhs of people in Assam are not in a position to feel the human and constitutional dignity to be called brothers and sisters of this country. If those who are not included in the NRC, are not allowed to live with dignity, their rights under Article 21 are affected,” he said.
He also raised the issue of the state’s legal assistance to the people who cannot bear the expenses, he said, “The right to proper legal assistance is a fundamental right of every person, including the right to dignity and it must be ensured.”
Professor Faizan Mustafa, VC, Nalsar University of Law, Hyderabad, spoke extensively on human cost implication of the NRC exercise. He said, “After listening to heart wrenching testimonies, it has now become difficult to teach Constitution as a large number of fellow citizens have been denied their rights guaranteed by it. If we talk about Vasudhaiva Kutumbakam (a Sanskrit phrase which means the world is one family), how can we be so inhuman for our fellow Indians?,” he said registering strong objections against the entire NRC process.
“Selective implementation of law has created the entire mess,” he said, suggesting that efforts should be made to uphold international conventions and the rights of people to nationality under the international law.
He further said judiciary should perform its judicial duty. “We are dividing the nation and making several nations. It is high time that the nation state has to be re-thought. The colonial law should not be determining people’s citizenship,” he concluded.
Dr Syeda Hameed, too, talking about the human cost implications of the NRC process, stated how it revealed multiple layers of suffering which is not visible to the outsider. Referring to the testimonies of the affected people from Assam, she stated that it was difficult to comprehend the enormity of the human costs. Every single moment of the testimonies was like a stab in the heart.
Ambassador Deb Mukharji observed how citizenship has evolved from civic to ethnic. He stated how the country today faced with a brutal definition of ethnic citizenship and a step away from an ethnic democracy. He expressed the hope that in the future the court will keep at the forefront the Constitution of India and the welfare of the people of India.
Githa Hariharan stated how large number of those excluded lead precarious lives in terms of livelihood, most of them being women and children. Being put through a “maze” of an ill conceived and poorly executed process which is arbitrary and random and does not see the real difficulties of people – of finances, of families who need to stay together – it is reducing people to non people.
She stated that if we divide people what would happen to the principle and reality of diversity whether of language, within the language, of caste, community, etc.? Linking migration with external aggression, makes the fundamental principle of equality baseless.
Professor Monirul Hussain of the Assam University stated that Assamese citizenship needs to be seen constitutionally, legally and more importantly, from a secular perspective protecting the rights of each individuals.
The People’s Tribunal decided not to focus on questions of the claims of illegal immigration and the legitimacy of the demand for an NRC in Assam. “It would not be fair for us to pass any judgment on these questions without listening carefully to the people of various ethnic and linguistic backgrounds in Assam,” it said.
The jury reflected on four questions: (a) Has the NRC process been in conformity with the Constitution? (b) What has been the role of the judiciary in upholding constitutional processes and morality? (c) What was the humanitarian crisis? (d) The implications of extending NRC to the rest of the country.
The jury raised concerns over the central government’s two notifications. On May 30, 2019, the Ministry of Home Affairs issued an order that decentralised the power of establishing foreigners’ tribunals. Prior to this order, only the central government could institute tribunals that had the jurisdiction to determine the citizenship of individuals under the Foreigners (Tribunals) Order, 1964. After May 30, even the state government, Union Territory administration, district collector or magistrate can exercise this power. Thus the order permits various levels of government to set up tribunals in every corner of the country.
“This order could foment social strife and alter India’s constitutional arrangements. Moreover, this order was passed without public debate or discussion in Parliament,” said the jury.
Under the second notification issued on July 31, 2019, the central government instructed the Registrar General of India (RGI) to update the ‘National Population Register’ (NPR) from April to September 2020. The NPR has been defined in Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003 as “the register containing details of persons usually residing in a village or rural area or town or ward or demarcated area…within a ward in a town or urban area”.
“Neither of these two notifications formally initiates an all-India NRC. But they lay down the groundwork for such an exercise. The NPR notification must be seen in the context of other legal provisions and the possibility of its abuse. Its three-stage process could allow collection and maintenance of sensitive and unprotected data and, possibly, be used to target vulnerable individuals and groups. The NPR also violates the right to privacy,” it said concluding that “citizenship, as the right to have rights, is one of the most basic, fundamental human rights in modern societies”.