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ISSN-2394-2657

THE INDIAN JOURNAL OF


LAW & PUBLIC POLICY

SPECIAL ISSUE 2019

IDENTITY, CITIZENSHIP AND NATIONAL


REGISTER OF CITIZENS (NRC)

NEW DELHI
INDIA
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THE INDIAN JOURNAL OF LAW AND PUBLIC POLICY

GOVERNING BODY

P RESIDENT
Syed Tamjeed Ahmad

VICE-P RESIDENT
Sidharth Arora
Armaan Pratap Singh

ACADEMIC ADVISOR
Dr. Ghulam Yazdani

EXECUTIVE MEMBER
Prof. S.N. Singh

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THE INDIAN JOURNAL OF LAW AND PUBLIC POLICY

BOARD OF EDITORS

EDITOR-IN -CHIEF

Pranav Tanwar

CONSULTING EDITORS

Ibad Mushtaq

Akanksha Rai

Aakash Chandran

SENIOR EDITORS P UBLISHING EDITORS

Rishika Jain Saurabh Pandey

Rajkanwar Singh Sufiyan Siddiqui

SENIOR ASSOCIATE EDITORS MANAGING EDITORS

Alina Masoodi Shreya Shukla

Rahul Mohan

ASSOCIATE EDITORS

Shivangi Ahmad Ammar

RuqaiyaTakreem Husain Aanis Khan

Karun Gupta

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BOARD OF ADVISORS
1. Prof. Amar Singh [Professor of Business Laws, Professor Emeritus (Law), Former Chairman,
Dean & Director Committee, National Law University, Jodhpur]
2. Prof. Balraj Chauan [Former Vice Chancellor, Ram Manohar Lohiya National Law
University, Lucknow]
3. Prof. Seshan Radha [Professor of Economics, National Law University, Delhi; Visiting
Scholar, Yale Law School, U.S.A]
4. Prof. (Dr.) Pablo Mednes de Leon [Professor of Law, Leiden University, Netherlands;
President European Air Law Association]
5. Prof. (Dr.) G.S. Bajpai [Registrar, National Law University, Delhi]
6. Prof. S.S. Jaswal [The Registrar, NLU Shimla; Student Advisor of Commonwealth Legal
Education Association (Asia- India)]
7. Prof. Dr. Vesselin Popovski [Vice Dean of the Law School; Executive Director of the Centre
for UN Studies, O.P. Jindal Global University]
8. Mr. Jai Dehadrai [Founder & Managing Partner – Dehadrai& Company; Standing Counsel -
Supreme Court of India, Government of Goa]
9. Mr. Jyotendra Mishra [Senior Advocate, Lucknow High Court; Former Advocate General,
Uttar Pradesh]
10. Ms. Kirthi Jayakumar [Author and Founder of The Red Elephant Foundation, India]
11. Mr. Sheikh Mushtaq [Former Bureau Chief, The Reuters (Jammu & Kashmir)]
12. Prof. Furqan Ahmad [Professor of Law, The Indian Law Institute, New Delhi]
13. Prof. Eqbal Hussain [Professor of Law, Faculty of Law, Jamia Millia Islamia]
14. Prof. S.N Singh (Retd.) [Department of Public Administration, University of Lucknow, Uttar
Pradesh]
15. Prof. D.K. Bhatt [Professor of Law, Kumaon University, Nainital]
16. Dr. R.C. Kataria [Former Member, Central Pollution Control Board]
17. Dr.Shaila Parveen [Associate Professor, Faculty of Social Work, M.G. Kashi Vidyapith,
Varanasi; Co-ordinator, Ford Foundation]
18. Dr. Aisha Ahmad Sharfi [Assistant Professor of Law, Alliance University, Bangalore]

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CONCEPT NOTE

The Indian Journal of Law and Public Policy is a peer reviewed, biannual, law
and public policy publication. Successive governments come out with their objectives and
intentions in the form of various policies. These policies are a reflection of the Executive ’s
ideologies. Laws, concomitantly, become the means through which such policy
implementation takes place. However, there might be cases of conflicts between the policy and
the law so in force. These contradictions have given way for a continuing debate between the
relationship of law and public policy, deliberating the role of law in governing and regulating
policy statement of various governments.

This journal is our solemn effort to promote erudite discernment and academic
scholarship over this relationship, in a way which is not mutually dependent on each of these
fields but which is mutually exclusively and independent. The focus has been to give a multi-
disciplinary approach while recognizing the various effect of law and public policies on the
society.

(EDITOR IN CHIEF)

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TABLE OF CONTENTS

1. CITIZENSHIP LAWS IN INDIA: LEANING TOWARDS POLITICAL

RHETORIC OR CONSTITUTIONAL MORALITY WITH RESPECT TO A

CRITICAL ANALYSIS OF THE CITIZENSHIP AMENDMENT BILL, 2016

Pragya Srivastava.........................................................................................................1

2. “ASSAMESE POLITICS: REDEFINIG THE CONTOURS OF CITIZENSHIP

LAWS IN INDIA”

Akhand Pratap Singh and Shashank Pandey...............................................................12

3. CHANGING CONCERNS AND CONTOUR OF GOOD CITIZENSHIP:

RESHAPING AND DECODING CIVIC VIRTUE IN CONSONENCE WITH

RETURN OF CIVIC REPUBLICANISM

Arushi Kaushik............................................................................................................22

4. NATIONAL REGISTER OF CITIZENS: LEGAL FRAMEWORK AND

IMPLEMENTATION

Asmita Kumari and Ana Hafeez…………………………………………………………….30

5. THE NRC REGIME: PAST, PRESENT AND FUTURE

Aviva Jogani and Mohak Kapoor.................................................................................41

6. FATAL FLAWS IN THE IMPLEMENTATION OF STANDARD OPERATING

PROCDEURE (SOP) RELATED TO NRC, ASSAM

Bhaskar Debroy............................................................................................................51

7. A CRITICAL ASSESSMENT OF THE HIGHLY DEBATED NATIONAL

REGISTER OF CITIZENS IN ASSAM

Bidisha Saikia...............................................................................................................59
8. CONSTITUTIONAL VALIDITY OF CITIZENSHIP (AMENDMENT) BILL

2016 WITH SPECIAL REFERENCE TO ASSAM ACCORD: A REVIEW OF

THE PROCESS OF UPDATING NATIONAL REGISTER OF CITIZENS

Jayanta Boruah............................................................................................................67

9. CITIZENSHIP LAWS IN INDIA: FAILURE TO STOP ILLEGAL

IMMIGRANTS FROM BANGLADESH

Karsin Manocha and Arisha Azhar..............................................................................79

10. INDIAN CITIZENSHIP LAWS

Kush Goel.....................................................................................................................90

11. D-VOTERS: ABUNDANCE PRECAUTION & ILLEGAL PERSECUTION

Megha Sood and Anmol Gupta....................................................................................98

12. NATIONAL REGISTER OF CITIZENS: LEGAL FRAMEWORK AND

IMPLEMENTATION

Moiz and Akanksha Singh...........................................................................................108

13. NATIONAL REGISTER OF CITIZENS: LEGAL FRAMEWORK AND

IMPLEMENTATION

Monika........................................................................................................................117

14. CITIZENSHIP IN ASSAM AND EXCLUSION: A STUDY OF THE WORKING

OF THE FOREIGNER’S TRIBUNALS AND NATIONAL REGISTER OF

CITIZENS (NRC) WITH REFERENCE TOTHE CITIZENSHIP

(AMENDMENT) BILL, 2016

Md Mubarak Ali..........................................................................................................127

15. D- DOUBTFUL OR DEPRIVED?

Nasima Sultana Choudhury........................................................................................139


16. THE CITIZENSHIP (AMENDMENT) BILL, 2016: THE CONFLICT

BETWEEN CONSTITUTIONAL MORALITY AND MORALITY OF THE

POPULAR MAJORITY

Pranay Jalan…………………………………………………………………………………147

17. CITIZENSHIP LAWS IN INDIA: PROGENY OF IDEOLOGICAL

POLITICAL RHETORIC AND ITS IMPLICATIONS ON REFUGEES

Prathiksha Chandrasekhar Ullal and Harita Ramachandran....................................159

18. THE NRC VIS-A-VIS THE CITIZENSHIP (AMENDMENT) BILL, 2016

Priyanka Gogoi..........................................................................................................171

19. NATIONAL REGISTER OF CITIZENS IN ASSAM: A SAVIOUR OR A

CURSE

Prof. (Dr.) Anand Pawar and Ms. Ishita Sharma......................................................180

20. NATIONAL REGISTER FOR CITIZENS AND IT’S LEGAL FRAMEWORK

IN INDIA

Shivam Tiwari............................................................................................................190

21. NATIONAL REGISTER OF CITIZEN: LEGAL FRAMEWORK AND

IMPLEMENTATION

Tejas Pratap Singh……………………………………………………………….…………200

22. UNAVAILING ACCORD: A SIFT INTO THE ASSAMESE IMMIGRATION

Vasudha Chadha and Mridul Dhingra.......................................................................209


CITIZENSHIP LAWS IN INDIA: LEANING TOWARDS POLITICAL
RHETORIC OR CONSTITUTIONAL MORALITY WITH RESPECT TO
A CRITICAL ANALYSIS OF THE CITIZENSHIP AMENDMENT BILL,
2016
-Pragya Srivastava

ABSTRACT

Citizenship (amendment) Bill, 2016 has been used to redefine the concept of “Citizenship is a
status given to a person for the enjoyment of exclusive political and civil rights along with a
sense of protection by the State in lieu of loyalty and set of duties towards the same. The
constitution has largely left the responsibility of making the laws for giving of such status, to
the parliament to have their own barometer of satisfaction of animus manendi of a person. The
formation of the Citizenship Act, 1955 had been a result of such belief of the constitue nt
assembly on the parliament. The act had been created to strictly comply with the requireme nts
of the constitution and instigated the similar values and precision as the latter had.

However the newly proposed illegal migrants”, creating a bias on the ground of religion which
is allegedly contradictory to the Article 14 and has been nullifying the Assam Accord, 1985
among the other troubles created by the same. The present paper will demonstrate how this bill
while wears the skin of altruism and greater good, is merely another tool for the vote bank
politics while preferring one religion over another through an approach which is so arbitrary in
nature that it counters the pre-existing and deeply rooted notions and institutions of the country
like that of the National register of citizens which records the bona fide citizens.

The paper will further discuss the problems which shall arise in the event of passing of the bill,
keeping in mind the already exploding population of the country and the inability of the
government to fulfil the bare minimum requirements of the masses, the people who have
already owed their allegiance shouldn't be compromised for the others, the bill will bear no
fruit if the migrants will suffer in this society as much as they did in the other.

And lastly the paper would suggest better alternatives for reaching the altruistic goal of
providing help to the people persecuted or fearing such persecution in the aforementio ned

 The author is an undergraduate student at Faculty of Law, Allahabad University

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countries which might have a more positive impact on the society and would not compromise
the constitutional integrity.

INTRODUCTION

We are not the self-made atoms of liberal fantasy, certainly, but neither are we exclusive ly
products or artefacts of single national or ethnic communities. We are made by our langua ges,
our literature, our cultures, our science, our religions, our civilization – and these human
entities that go far beyond national boundaries exist, if they exist anywhere, simply in the
world.1

Immigration is a very crucial phenomenon of social engineering, because it creates the future
population of a country. The Citizenship (Amendment) Bill, 2016, passed in the Lok Sabha on
7 of January, 2019, was first referred to a joint parliamentary committee (JPC) under the
chairmanship of Rajendra Agrawal for presenting a report to the Parliament after careful
examinations.

The Citizenship (Amendment) Bill of 2016 which, if passed, will change the dynamic of
citizenship in India. It contains three major provisions. Firstly, the Bill contends that the six
categories of people : Hindus, Sikhs, Jains, Buddhists, Christians, and Parsis coming from the
countries Afghanistan, Pakistan and Bangladesh, where they are minorities and often
oppressed; would not be treated as illegal immigrants, thus making them eligible for seeking
citizenship.

Secondly, it reduces the time required for naturalisation for these communities from the current
twelve years to seven years (twelve months of staying within the territory before applicatio n,
being constant). The process of naturalisation usually has a time requirement with regards to
the permanent stay in India so that the applicant becomes aware and interested with the nation's
laws, culture, spirit, customs, way of life and develop a sense of deep loyalty towards the
nation.

Thirdly, it amends the section 7D of the Citizenship (amendment) act, 1955 which deals with
the cancellation of the Overseas citizens of India, by nullifying the specific provisions of the
section with very vague directions.

1 Jeremy Waldron ,778(1992).

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Citizenship law in India is currently under the ambit of two legislations: Part II of the
Constitution of India, 1950 which in turn gave birth to the Citizenship Act, 1955. But, neither
of these legislations has defined the terminology and only gave provisions for a natural person
to acquire Indian citizenship. The objective of the Act, 1955 is to provide for acquisition and
determination of Indian citizenship. It prescribes the four main methods of acquiring
citizenship, that is, by birth jus sanguinis, by descent jus soli, by registration and by
naturalisation. The migrants are however recognised by The Passport Act, 1967, The
Foreigners Act, 1946, and The Foreigners Order, 1948.

The union has cited that the bill is extremely important since India had a past of providing
refuge to its neighbouring nationals with open arms. Even though India never explicitly
addressed this issue in its legislation but did a satisfactory job with ad hoc administration during
these years and also became a signatory of the global compact on refugees (GCR). The
declaration creates a new framework for refugee protection. Two of its key objectives are to
ease pressures on host countries and enhance refugee self-reliance.2 section 6a of the origina l
citizenship act only deals with foreigners who entered India from Bangladesh into Assam
between January 1, 1966 and march 24, 1971. 3 The 2014 manifesto of BJP during Lok Sabha
had clearly mentioned in the page number 40, "India shall remain a natural home for persecuted
Hindus and they shall be welcome to seek refuge here”. This bill is the imbalanced fulfilme nt
of this goal.
IMPACT OF THE BILL

After having a methodical and exhaustive study of the Bill, it can be said that Amending the
citizenship acquisition rules in this context might look rational when a person solely consider
the plight of these communities in the said countries where they are facing such persecution,
however while considering all the other factors, it is not a progressive step at all, instead it has
a plethora of loopholes and bad effects to follow its precedence if set. The defence taken by the
supporters of this bill is the exclusion of Muslims from the bill is simply because Muslims have
other countries to take refuge in, but isn’t that the case with Christian minorities as well?
However, the Christians have been given the benefit. Similarly, the protestors of the bill argue
that the basis of such discrimination regarding the country is unfounded since even if Bengal
and Pakistan had been the part of undivided India, Afghanistan was never so, instead the
minorities in Sri lanka and Myanmar which would have been more coherent choice. The other

2 PALLAVI SAXENA & NAYANT ARA RAJA, T HE IMPERATIVE TO OFFER REFUGE


3 Report of the Joint Committee on the citizenship (Amendment) Bill, 201616 LS 63, (2019)

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issue with the bill is that it does not provide any solution so as to what must be done with the
illegal migrants who do not fulfil the criteria of NRC, which would mean that they will be
governed under The Foreigner’s Act, thereby, deported. But this is where another issue arises,
countries like Bangladesh has been denying all the claims regarding these unprecedented
migrations, therefore do not regard these people as its citizens at all, in this condition, how will
deportation (though a cruel decision) even take place? Another issue is of asylum seekers, these
people who need political asylum or another must have an idea of India’s stand on this
particular issue. While the intention of this Bill, in terms of addressing the plight of thes e
mistreated people, is positive, it begs the question of why Rohingya Muslims from Myanmar,
Ahmadiyya Muslims from Pakistan and Uighur Muslims from China have been overlooked.
For these communities are also fleeing from government pogroms en-masse4 also since
according to the law of the land, the classification must be founded on an intelligib le
differentia5 .

DEFINITION OF MIGRANT

The Bill seeks to protect the rights of the illegal immigrants who cross the move into the fear
of persecution or are being persecuted due to their religion, however, there is a confusion with
the terminology, an illegal migrant is different from a refugee or asylum seeker.

The major difference is that of choice. Where a migrant is someone who chooses to move, and
a refugee is someone who has been forced to move from their country or region. Refugees,
according to the Office of the United Nations High Commissioner for Refugees (UNHCR), are
people who are “fleeing armed conflict or persecution”, “they are so recognized precisely
because it is too dangerous for them to return home, and they need sanctuary elsewhere,” “for
whom denial of asylum has potentially deadly consequences.” Refugees leave their home
countries only because it is too dangerous for them to continue living in there. Turning refugees
away could mean something as serious sentencing them to death. They often arrive in absolute
unplanned manner, many a times without their personal belongings; hence, they are
economically very weak as well.

4 Raghav katyal, Citizenship (Amendment) Bill: A positive step but BJP govt must justify religion -based
provisions in proposal, firstpost, 10 january,201835
5 Budhan Choudhry And Other vs The State Of Bihar, AIR 191 (1954)

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Migrants, however, may move for any number of reasons. Some of them move to live with
their family or for better economic opportunities and a raised standard of living. Immigra nts
might return to their home countries after a few years when they have received what they came
seeking for instance: education. They are often able to choose the country they wish to move
to and have time and resources to manage their possessions. This doesn’t mean that all migrants
are moving from good situations to better ones. Many people migrate because their homes have
become difficult to live in. They might be fleeing from unrest, famine, drought, or economic
collapse. But unless they are in danger of conflict or persecution for the reason of their race,
religion, sexual orientation, they are not considered refugees.

The distinction is an important one, because the Refugee convention,1951 outlined certain
rights for people deemed refugees, whereas migrants have no such rights. For instance, they
are protected from deportation or returning to situations that are threat to their lives. They must
be given access to social help and a sense of security in their new country. Migrants however,
are subjected to a country’s immigration laws and in cases of conflict, can be deported back to
their homeland.

Politics has always found a way of interfering with such mobility of people, Conflating
refugees and migrants can have serious consequences for the lives, culture, peace and safety of
the native citizens. However, intermixing these terms takes the attention away from the specific
humanitarian help the refugees require, it can undermine public support for refugees and the
institution of asylum if the citizens feel threatened or unsafe in the presence of such a large
number of foreigners who are economically relying on the migrated country. We need to ensure
that the human rights of migrants are respected but we also need to make sure that while
providing them with shelter and help, we do not infringe the rights of the citizens who have the
first right on the country’s resources. Mixing the two terms would also hinder the provision of
an appropriate legal response for refugees, because of their particular predicament.

INCONSISTENCY WITH THE CONSTITUTION

One of the rights possessed by the Supreme power in every state is the right to refuse to permit
an alien to enter that state, to annex what conditions it pleases to the permission to enter it, and
to expel or deport from the state.6 , however, this cannot be an arbitrary decision as it changes
the demographics of a country, so even according to the USA courts, Congress might entrust

6 Canada vs. Cain AC 542 (1906).

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the final determination of the facts to an executive officer, and that, if it did so, his order with
due process of law be the decision.7 Hence granting citizenship cannot be an act which doesn’t
illustrate fairness and justice. The present bill’s rule which provides so on the ground of religio n
is repulsive and discreditable at the very beginning, since, depending on the subject matter,
individuals cannot always be expected to express themselves with cogency or precision while
proving their religion. Nor are an individual’s beliefs fixed and static. The beliefs of every
individual are prone to change over his lifetime8 .

This bill is said to be in direct contradiction with the Article 14 which speaks about the
fundamental right of every person within the territory of India to be treated without any
discrimination based on religion, the bill fails the twofold test which relies on two princip les,
that is, reasonable classification and nexus between the object sought to be achieved and the
legislation9 . Since the heart of the parliament might be in helping these refugees, yet the path
taken will only increase the chaos.

The bill also contradicts the theory of “basic structure” which states that the Constitutio n
contains certain characteristics that cannot be taken away by any legislation; for example,
judicial review, free and fair elections, and welfare state. These form the cornerstone of the
governance of a country. Therefore, any legislation that fails the test of “basic structure” is
unconstitutional. Secularism is a basic structure, as has been reiterated by the Supreme Court10
.It has also been incorporated in the Preamble to the Constitution, which serves as the guiding
light to interpreting the Constitution. All religions are equal in the eyes of law and that the State
shall not propagate or endorse one particular religion, this philosophy is also enshrined in the
Preamble and in Articles 26 to 29 of the Constitution.

The chief reason why religion becomes the focus of prejudice is that it usually stands for more
than faith - it is the pivot of the cultural tradition of a group. For instance, Jews, while they are
primarily a religious group, they are likewise viewed as a race, a nation, a people, a culture.
When religious distinctions are made to do double duty, the grounds for prejudice are laid. For
prejudice means that inept, over inclusive categories are employed in place of differentia ted
thinking.11

7 Nishimura Ekiu v. United States 142 US 652


8 R (Williamson and Others) v Secretary of State for Education and Employment UKHL 15 [2005]
9 State Of Madras vs V.G. Row.Union Of India & State, AIR 196 (1952)
10 His Holiness Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala and AnrSCC 225 (1973)
11 Allport, The Nature of Prejudice, 446.

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When the state is involved, we also have the possibility that a state may enact “neutral laws”
that are applied equally to all religious and ethnic groups, but where some groups might suffer
disproportionately because of their religious beliefs or practices12 . Such laws where seem
harmless and unconsciously made, are actually intended to discomfort the targeted people and
thereby lead to their oppression.

The religious persecution as an allegation is hard to find based upon for instance when such
information during about government practices is incomplete because judicial proceedings are
closed to the public and the Government restricts freedom of speech and association13 .

On a closer look, the bill is also held guilty of abetting a crime as inhumane as rapidly forced
conversion of religion, the Muslims and Jews who would not be registered under the NRC
through naturalization will simply be living in the fear and anxiety of deportation at any time
by the government since they are simply “illegal immigrants” and the foreigners act, 1946 rules
out the possibility of them being anything else. Forced conversion of religion is an atrocity
against mankind since religion is a very personal yet very strong aspect of one’s character, its
not simply faith, instead it’s a way of life which if changed against one’s will, can end up in a
hypocritical, confused, frustrated and unintegrated set of population, which is nothing less than
the exact persecution these people have been trying to escape in the first place.

Hence the filtration criteria set by the bill is not only in conflict with the constitution but also
highly impractical to apply.

It will also increase illegal activities by desperate people already living in the country to gain
access to public welfare schemes and get registered through adhaar card, bank accounts ant
permanent account numbers, as while the stateless groups are denied full, effective membership
in either of states involved in their predicament, they do have a weak de facto dual citizens hip
in both states14 .

The fundamental right of a foreigner is confined to Article 21 for life and liberty and does not
include the right to reside and stay in this country, as mentioned in Article 19(1)(e)15 .

12 T. Jeremy Gunn ,The Complexity of Religion in Determining Refugee Status,31.


13 Religious Freedom Report 2001, 481.
14 Gerard Khan, citizenship ans statelessness in South Asia, 25,(2001)
15 State of Arunachal Pradesh v. Khudi Ram Chakma SCC 615 (1994)

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THE VOTEBANK POLITICS

The 2014 manifesto of BJP during Lok Sabha had clearly mentioned in the page number 40,
"India shall remain a natural home for persecuted Hindus and they shall be welcome to seek
refuge here”. This Bill is the imbalanced fulfilment of this goal, the NRC updation process
which is due till

INSECURITY IN THE NORTH EASTERN PART

The Sixth Schedule of the Indian Constitution provides a discrete administrative system for the
tribal areas of the North eastern region to protect the tribes from political and economic
exploitation. The various provisions of the 6th Schedule also made provisions for these
indigenous people to preserve their distinct identity, history, customary practices and
traditional beliefs. But providing citizenship the illegal immigrants have uprooted the
indigenous people from their lands and denied of their livelihoods. India is also a signatory to
the United Nations Declaration on the Rights of Indigenous People during its 61st session at
UN Headquarters in New York City on 13 September 2007. According to which, Indigeno us
peoples have the right to maintain and strengthen their distinct political, legal, economic, social
and cultural institutions, while retaining their right to participate fully, if they so choose, in the
political, economic, social and cultural life of the State16 .This uncontrolled influx of ille ga l
immigrants into the land of Assamese of their culture, religion and national identity.

The Honourable Court observed that illegal migration has resulted in “periodic clashes between
the citizens of India and migrants”, leading to loss of life and property, and thereby violating
the constitutional rights of the Assamese people. It reaffirmed that illegal migration had eroded
the cultural way of life of the Assamese people as they were being swamped by the illega l
migrants who had no right to be in India17 .

The members from Assam have also been opposing it because the legislation it would pave the
way for giving citizenship, mostly to illegal Hindu migrants from Bangladesh in Assam who
came after March 1971, in violation of the agreement of the Assam Accord, 1985.

It may lead to wrongful deportation of about 2 million migrants living in Assam, The specific
charge is that the bill invalidates the Assam Accord of 1985, which fortified the lawful
detection and expulsion of the aliens who came to Assam on or after March 25, 1971 along

16 UNDRIP art. 5
17 Assam SanmilitaMahasangha&Ors. vs Union of India, Writ Petition (Civil) No. 562 (2012),

8
with the provision of constitutional, legislative, executive and administrative safeguards to
protect, develop and preserve the cultural, social, linguistic identity and heritage of the
Assamese people. It is also contended that by considering a section of persons legal migrant s,
the bill would undermine Section 6A of the Citizenship Act, which was yet again based on the
considerations under the Assam Accord and stipulates the political sterilization for 10 years of
every immigrant of Indian origin which entered Assam from Bangladesh between 1 January
1966 and 25 March 1971 and is considered a foreigner. It is also noticeable that the Bill, by
selectively permeability lets Hindu Bengali immigrants stay in Assam, it nullifies the
importance of the ongoing National Register of Citizens (NRC) updation procedure which is
to identify the ‘illegal immigrants’ inhabiting in Assam. The list’s final draft, released in July
2018, had identified 40 lakh applicants (out of 3.29 crore) as ‘illegals’, out of which a
significant chunk is claimed to be Bengali Hindus18 .

CANCELLATION OF INDIAN OVERSEAS CITIZENSHIP

Under the citizenship,1955 Act, an Overseas Citizen of India (OCI) cardholder’s registratio n
may be cancelled if he violates a particular set of serious laws that lands him/her in prison for
at least two years19 , however, the Bill substitutes it for violation of any law of the country by
an OCI. But under the current bill, this provision also grants the Union a very wide discretion
to cancel OCI registration for a range of violations, but such minor violations should not result
in severe consequences like cancellation of OCI registration, which may require an OCI who
is staying in India to leave the country, it will create a kind of insecurity and vulnerability for
this class of Indians.

CONCLUSION

It has taken decades for India to establish its international image as a strongly princip led,
compassionate, sympathetic, benevolent, secular yet harmonious country which was nourished
by the blood of great men and women who dreamt of a country which will prove it to the world
that humanity has no race, caste, creed, sex or religion. India has tried very hard to protect its
diversity, culture, and heritage because it’s what defines us. The citizenship is not just a status
or eligibility of rights, it’s a sacred position where the person vows his/her loyalty towards a
country, it comes along with a set of fundamental duties that makes each citizen an integra l

18 Angshuman Chaudhary, Citizenship Amendment Bill fails to address key questions, firstpost,29 January, 2019
19 The citizenship act, 7D(1955)

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part of the ‘welfare state’, it imbibes within itself the very values which are the foundation of
this country, it will create the population of the country and therefore the very composition of
the country.

The present paper however, provides for some probable solutions to these drawbacks of the
bill.

• The people who have been staying since 25 March, 1971 (in the north eastern region)
must in totality be provided with the opportunity to get the citizenship of the country, a
select number must not be left in the pit of statelessness owing to their religion since
they have been counting upon the India that does not snatch opportunities for a better
life from the people simply because of their religion.
• However, for the asylum seekers that arrived after the 23 of December 2014, and might
arrive in the future, a separate pan India legislation addressing this issue must be passed,
which defines the word refugee and differentiates them from the immigrants. A
legislation that recognises their plight and provides the imminent remedy for it.
• The population of India is already the second highest in the world while it consists of
nearly fifth of world's population where there are 4.6 crore tax payers only according
to the 2017 statistics. Hence it is very important for India to make such provisions where
these refugees not only get a respectable life, rather become an asset rather than a
burden on the country, they must be taught self reliance to protect them.
• The bill must address the issue of exploitation at the hands of the influential people
and a strict provision that penalises them since these refugees and immigrants form one
of the most vulnerable class of individuals and need extra protection and sense of
security, but unfortunately are the most economically, emotionally, sexually and
physically exploited, being unregistered to begin with, they could hardly ask for
redressal of their grievances, this makes them violent and aggressive and overprotective
class of persons.
• This bill should make sure that the seven years period provided to these asylum seekers
is uniform and they are given the empathetic title of a refugee for the people as a
temporary home or interim legal stay, including to facilitate the realistic economic,
social and cultural inclusion of such refugees, which must be provided without
prejudice to eventual durable solutions that may become available for the religio us
minorities in neighbouring countries fearing persecution, and after the expiry of such

10
period, they have to make the decision of either registering for the acquisition of
citizenship through naturalization or voluntarily repatriate to their own countries.
• They must however be given a grace period of two more years since the immigra nts
who flee from their countries generally do so unplanned and they do not have the luxur y
of choice whilst escaping from such persecutions which again means that they generally
go unregistered and thus the time of their arrival cannot be known, further these people
must be given enough time to be able to clear their hurdles in moving to another
country.

Hence, this Bill instead of solving or at least being a step closer to the solution, is a step
backwards which would only end up into a failure of humanity in lieu of constitutio na l
morality.

11
ASSAMESE POLITICS; REDEFINIG THE CONTOURS OF CITIZENSHIP LAWS
IN INDIA

-Akhand Pratap Singh and Shashank Pandey

INTRODUCTION

Citizenship, as defined by Webster Dictionary, means “the position or status of being a


citizen”. Webster dictionary defines citizen as “an inhabitant of a city or town especially one
entitled to rights and privileges of a freeman”. From the above discussion, any person
belonging to a particular State, who enjoys the rights and privileges and subjects himself to the
authority of the State is said to hold the citizenship of the said State. Citizenship is often used
synonymously with nationalism and domicile. However there is a difference between all three.
Citizenship is somewhat a domestic concept and nationalism is an international model.
Nationalism provides civil rights which are governed by international law whereas citizens hip
talks about civic rights which come under munic ipal law.1 Domicile is essentially the legal
relationship between an individual and a territory with a distinctive legal system which invokes
that system as their personal law.

HISTORICAL BACKGOUND

Soon after its independence, India witnessed one of the largest human migrations in recorded
history due to partition which displaced at least 14 million people, out of which approximate ly
1 million are said to have been killed or died in violence which erupted in the aftermath of the
partition. Though people who migrated between India and Pakistan did not loose their
citizenship but they were forced to live the life of a refugee in the camps. The condition
worsened after Indo-Pakistan war of 1948 broke out and Indian cities were filled with refugees
from Pakistan, specially the big cities like Delhi. This presented a great challenge before the
Constituent Assembly to provide solution to the complicated question of citizenship of people
migrating between India and Pakistan and decide who would and who would not be a citizen.

During the time of the framing of the Constitution, there was a strong debate in Constitue nt
Assembly about which concept of citizenship the new IndianState would commit to. After
many discussions the founders of the Constitution decided that the basis for granting citizens hip
will be “associational”, as they wanted to adopt a concept of citizenship that was large enough

The Authors are undergraduate students at Dr. Ram Manohar Lohiya National Law University, Lucknow.
1Weiss, P (2006): "Nationality and Statelessness in International Law," Oppenheim's International Law, Vol 1,
pp 642-644.

12
to accommodate everyone who was born on Indian Territory without any distinction on the
basis of religion, caste or ideology.2

The definition of citizenship in Article 5 is at the commencement of the Constitution and thus
the provisions related to citizenship were inadequate in addressing the problems of citizens hip
from the time Constitution is enacted till Parliament makes an exhaustive law and a state of
legal vacuum as to citizenship existed between these two periods. 3 In the Constituent
Assembly, Dr. Ambedkar duly noted that Part II of the Constitution was mainly included to
address this issue of citizenship at the time of commencement of the Constitution and not to
establish any permanent law for citizenship. In exercise of power given under Article 11, the
Parliament has enacted the Indian Citizenship Act, 1955 which provides for the acquisition and
loss of Indian citizenship after the commencement of the Constitution. From then this Act has
been amended four times so far by the Citizenship (Amendment) Acts of 1986, 1992, 2003 and
2005.

India is neither a signatory to the 1951 Refugees’ Convention nor the 1967 protocol then also
the country has served as a home to the largest refugee population in South Asia. There are
sizeable groups of refugees in India, who number in millions, like Sri Lankan Tamils, Afghans,
Rohingyas, Chakma and Hajong communities etc. but none had such an effect on Indian
Politics as the influx of migrants from East Pakistan (now Bangladesh) to India. Unlike others,
this migration in the North- Eastern States is a sensitive and emotional issue for local
population which had serious cultural and social demographical implication since this has led
to the sudden spike in the population of the States bordering Bangladesh. The majority local
population in these areas feared to become minority in future and also it made difficult for the
government to ensure food security. This became an issue for the political parties to garner
votes in the elections till date.

THE ASSAM MOVEMENT

The problem in Assam originated way back in 1826 when the Burmese ceded Assam to the
British thus bringing to an end the Ahom rule in Assam, which was annexed and placed as an
administrative unit of the Bengal Province by the British. It started the trend of migration from
Bengal to Assam which gained momentum in the 20th century by the support of British who

2 Gautam Bhatia, ' Challenge the NDA’s citizenship bill' Hindustan Times (2019)
<https://www.hindustantimes.com/analysis/challenge-the-nda-s-citizenship-bill/story-
W1y2sGVtBxvo9lQABZOnZI.html> accessed 20 January 2019
3 Anupama Roy, Mapping Citizenship in India, (first published 2010, Oxford University Press).

13
favoured the migration in the region, instead of checking it, as the migrants formed cheap
labour for the tea and oil industry. The migration accelerated after the partition and formatio n
of East Pakistan in 1947. Huge population of Bengali Hindus were forcibly compelled to leave
East Pakistan and migrate to West Bengal and the North- Eastern States mainly in Assam. The
riots of 1964 and the India-Pakistan War of 1965 and 1971 further resulted in the out-migra tio n
of a large number of migrants from East Pakistan. Further, the economic conditions of East
Pakistan (Bangladesh) had always ensured the steady migration between the borders in search
of a better life.4

There are no provisions to deal with refugees in the Constitution and all rights were conferred
to the Parliament though the Foreigners Act of 1946 conferred powers upon the government to
prohibit entry of foreigners, among other things. The Parliament tried to handle the situatio n
by passing a special law for Assam titled the Migrants (Expulsion from Assam) Act, 1950 and
under this act Indian Government passed the Foreigners Tribunal Order of 1964 which
authorised it to establish Tribunals to determine questions of nationality, in accordance with
the provisions of the Foreigners Act. Till then, these along with the Citizenship Act, 1955 were
the governing laws related to the Refugees. 5

But the issues of migration continued to cause conflict in Assam because it was perceived that
many of “illegal migrants” were being put on voter list by political parties in an attempt to
create faithful vote banks. This led to Assam Agitation, a state-wide student movement from
1979 to 1985 which came to an end with the signing of the Assam Accord between the
Government of India and the leaders of the movement. The main demand of the movement was
detection and expulsion of foreigners in the State. The Accord provided for two separate cut-
off dates for regularisation of migrants and divided the migrants in three groups:

i. those who came into the State before 1966;


ii. those who came into the State between 1966 and 25th March, 1971 (the official date of
the commencement of the Bangladesh War); and
iii. those who came into the State after 1971.

4 K. V. Thomas, ' The Politics of Citizenship: The National Register for Citizens (NRC) in Assam' The
Hindu Centre for Politics and Public Policy (2018) <https://www.thehinducentre.com/the -arena/current-
issues/article25142441.ece#One> accessed 20 January 2019
5 Gautam Bhatia, 'The Constitutional Challenge to S. 6A of the Citizenship Ac t (Assam Accord): A Primer '

Indian Constitutional Law and Philosophy (2017) < https://indconlawphil.wordpress.com/2017/ 05/07/the-


constitutional-challenge-to-s-6a-of-the-citizenship-act-assam-accord-a-primer> accessed 20 January 2019

14
The first group was to be regularised and the second group was to be taken off the electoral
rolls, and regularised after ten years. The third group was to be detected and expelled. The
Assam Accord also demanded for updating of the National Register of Citizens (NRC), 1951
to include all the Assam inhabitants and their descendants on or before March 25, 1971 and
that the detection of 'foreign nationals' should be done on the basis of the National Register of
Citizens (1951), which was not a public document, and the voters' list of 1952.

This led to the introduction of section 6A by Citizenship (Amendment) Act of 1986 which
divided “illegal” migrants of Indian origin within those three categories. The Parliament had
also passed the Illegal Migrants (Determination by Tribunals Act) of 1983 which authorised
the Government to set up Tribunals for the purposes of determining whether migrants were
illegal. Under the Act, the Government framed the Illegal Migrant Rules of 1984. This rule
along with IMDT act and section 6A formed the statutory regime related to citizens hip and
were applicable to Assam only.6

However, the main focus all such movements, till today, is on the Bangladeshis though they
were estimated to be only around 40 per cent of the migrants, and ignore the fact that majority
of the migrants in the region are the Hindi speaking Hindus from Gangetic plains or of Nepali
origin. The refugee population today is estimated to be around 10 million persons, out of which
6.7 million are believed to be Hindus who spread over North-East, West Bengal, and Bihar. 7
The movement which started as a secular movement of all the Assamese soon turned into a
communal movement directed mainly against Muslims due to political narratives.

CONSTITUTIONAL MORALITY AND CITIZENSHIP

As Assam politics gathered more strength, we see a gradual transition in the nature of
citizenship laws in India. The transition soon shifted from Constitutional morality towards
political narratives.

In the Constituent Assembly debates Dr. B.R. Ambedkar explains the scope of Constitutio na l
morality by quoting the Greek historian, George Grote, and said “...by Constitutional morality
Grote meant “paramount reverence” for the forms of the Constitution enforcing obedience to
authority acting under and within these forms, yet combined with the habit of open speech, of
action subject only to definite legal control and unrestrained censure of those very authorities

6 Ibid
7 (n,6)

15
as to all their public acts combined too with a perfect confidence in the bosom of every citizen
amidst the bitterness of party contests that the forms of the Constitution will not be less sacred
in the eyes of his opponent than in his own”. 8 It is apparent that Grote was not speaking about
the actual word Constitution but rather the idea that it encapsulates.

Understanding the vision of the Constitution is of paramount importance because of the reason
that although people may not have participated in the framing of the Constitution, the Preamble
professes that the Constitution is adopted by the people themselves. However personifica tio n
of the “Will of the People” presents the suspicion of it being as another tenet of Constitutio na l
morality.9 Constitutional morality cannot allow the will of the people or alleged will of the
people to eclipse the principle of the Constitution. Hence any organ of the State who contends
to manifest will of the people cannot vest itself of this undeserved extraordinary power.
Devotion and fidelity to Constitutional morality must not be equated with the popular sentime nt
prevalent at a particular point of time. 10

Constitutional morality serves as the tenet of Constitutionalism. The essence of


Constitutionalism that gives immutable feature and serves as a moral compass in the
implementation and interpretation of the Constitution is the principle of Constitutio na l
Morality. Preservations of the basic values of the Constitution and their modification to suit
the present societal requirements define the purpose of Constitutional morality. The Realiza tio n
of these values of equality, liberty, justice, fraternity and secularism requires existence of
commitment to this vision. Constitutional morality determines the mental attitude towards
individuals and issues by the text and spirit of the Constitution. These principles can be viewed
as imposing an obligation on individuals and institutions to ensure that the Constitutio na l
system operates in a coherent way, consistent with its basic principles and objectives. 11 The
framers of the Constitution expected that the citizens of the country would conduct themselves
in a way that would further the objective of cause of Constitutional morality.

A simplistic approach to Constitutional Morality would be to assume that principles of


fundamental rights such as the right to life and liberty, the right against discrimination and the
freedom of speech are just some examples of Constitutional morality that had been drafted into

8 Constituent Assembly Debates, Vol. 7, P.38 (4-11-1948)


9 The manifestation of this would lead to usurpation of power or overarching of the fundamental provisions of
the constitution.
10 ibid
11 Bruce P Fronhen ; George W. Carey, Constitutional Morality and the Rule of Law, 26 J.L. & Pol. 497.

16
the Constitution. One such principle embodied in our Constitution is the idea of secularis m. 12
India, in particular, is such a typical pluralist society – a model of unity in the mosaic of
diversities.13 Notwithstanding the fact that word “secular” and “socialist” were added by the
42nd amendment, the principle of secularism wax very much embedded in our Constitutio na l
philosophy. The word “secular” has advisedly not been defined presumably because it is very
elastic term not capable of a precise definition and perhaps best left undefined. What was
implicit in the Constitution was made explicit. Positive secularism14 separates the religio us
faith personal to man and limited to material, temporal aspects of human life. Morality under
positive secularism is a pervasive force in favour of human freedom or secular living.
Constitutional morality is thus the guiding spirit to achieve the transformation which, above
all, the Constitution seeks to achieve. Constitutional morality is a pursuit of this responsive
participation.

From the above discussion we know that Constitutional morality is an essential tenet of
Constitutionalism which, in its folds, withholds the principle of the Constitution. For our
purpose principle of equality and secularism are most important aspect of this morality and
they also are the part of basic structure of the Constitution.

THE CHANGING CONTOURS OF CITIZENSHIP LAWS

The Constitutional provisions pertaining to citizenship made inclusive approach to citizens hip
and emphasised on people’s choice. When the Citizenship act 1955 was enacted, it threw up
“luminal”, “transitional” and “awkward categories” of aspiring citizens whose legal resolutio ns
drew attention to the ethno-cultural and gendered basis of citizenship in India. 15 Determinatio n

12 Dr Radhakrishnan talking about secularism said "When India is said to be a secular State, it does not mean
that we reject reality of an unseen spirit or the relevance of religion to life or that we exalt irreligion. It does
not mean that secularism itself becomes a positive religion or that the State assumes divine prerogatives.
Though faith in the Supreme is the basic principle of the Indian tradition, the IndianState will not identify
itself with or be controlled by any particular religion. We hold that no one religion sh ould be given
preferential status, or unique distinction, that no one religion should be accorded special privileges in
national life or international relations for that would be a violation of the basic principles of democracy and
contrary to the best interests of religion and Government. This view of religious impartiality, of
comprehension and forbearance, has a prophetic role to play within the national and international life. No
group of citizens shall arrogate to itself rights and privileges which it denies to others. No person should
suffer any form of disability or discrimination because of his religion but all alike should be free to share
to the fullest degree in the common life. This is the basic principle involved in the separation of Church
and State." (emphasis supplied) (Recovery of Faith, New York, Harper Brothers 1955, p. 202)
13 Venkatachaliah,M. N. “Common Law, Humanism and Constitutions”, Constitutionalism and

Constitutional Pluralism, Ed. P. Ishwara Bhat. Gurgaon: Lexis Nexis, (2013) 53-64.
14 Secularism in the Indian context bears positive and affirmative emphasis. IndianState opted the concept of

secularism operating as a bridge to cross over from tradition to modernity. The IndianState op ted to this
path for universal tolerance due to its historical and cultural background multi religious faiths.
15 (n,5)

17
of citizenship was influenced by the ways in which the eastern and western borders were
construed and hence the citizenship emerging from them remained ambivalent. The legal
resolution of the citizenship conundrum relating to large numbers of people moving across,
what had become ossified borders, was taking place within a political and social context where
a Muslim in India was an anachronism and whose loyalties were seen to be suspected.

The 1986 amendment manifested a politics of policy making, marking out of ethno-spaces, and
the setting in motion of a process whereby citizenship’s association with descent is affir med.
The amendment in 1986 in citizenship laws pertained to the question was illegal migrant. The
IMDT Act which accompanied such modificatio n in citizenship laws tried to propel the Assam
politics onto the national stage and ultimately manifesting the demand of the Assamese
population in the form of modified citizenship laws. The amendment gave legal recognition to
“different yet equal” or differentiated citizenship.16 However this exception for Assam was
opened within the four folds of universal citizenship without violating the principle of equality.
The IMDT act placed the burden of proving citizenship on the State.However in 2005 Supreme
Court in held some of the provisions of this IMDT act as unconstitutional. 17 Justice Mathur held
that the IMDT Act had resulted in the detection of foreigners far lesser than their actual
numbers demanded and the Centre was failing in its constitutional duty to protect its citize ns
against external aggression and internal disturbance. 18 The Tribunals under the IMDT ceased
to function, and the statutory regime reverted to Section 6A of the Citizenship Act, and the
Foreigners Act and the Foreigners Tribunal Order. It again shifted the burden of proving
citizenship on individuals. Surprisingly the judges marked out the migrants not only on account
of being illegal but also on the count of being a Muslim depicting it as a threat to the
demographic profile of the country and national security. This clearly manifests the politica l-
ideological context of the period. Judges discussed the demographic shift not in terms of the
linguist disparity as was done earlier but rather on the basis of religious differences.

The judgment shows the result of the dominant framework of nationalism. This nationa lis m
depicted the popular morality and casted a doubt on everyone who was not in line with its
ideals. The Bengali speaking Muslims in Assam were the most affected. This new concept of
nationalism coupled with new State practices and institutional changes during the 1990s gained
vicious nature. Thousands of Muslims were deported to Bangladesheveryday from parts of the

16 By introducing sixth category of citizenship which was to be exclusively applied to State of Assam
17 SarbanandaSonowal vs UOI(2005) 5 SCC 665
18 Article 355 of the Indian Constitution

18
country on the basis of their religious identification. After this amendment, the citizenship has
laid down the chronological boundaries of belonging almost imperceptible.

The 2003 amendment again shifted the ideological basis of citizenship laws. The late twentieth
century witnessed drastic changes at international level, in particular, globalisation of
economy, which witnessed the unprecedented movement of population. This led to the nations
to reinforce their boundaries, restricting the flow of foreigners and migrants. The State asserted
its sovereignty in the garb of this citizenship crisis. This threat generated the anxieties around
the weakening bonds of community identity and social solidarity. In early 21 st century the
religious forces were rampant around the parts of India. This led to the moulding of citizens hip
laws to suit the demands of this “majority” ignoring the Constitutional morality of our
Constitution. The amendments of 2003 and 2005 gave expression to this unequal exclusion and
imparting religious character to the Indian State. The religious-political factors dominated most
of the legislation in early 21st century and ultimately they found their expression in the form of
citizenship amendment bill 2016 which can be said to be the culmination of the developme nt
from 1986 onwards.

The citizenship amendment bill 2016 is introduced to update the current citizenship act, 1955
and provide for the acquisition and determination of Indian citizenship for a certain category
of illegal migrants.19 The bill prima facie proposes three changes-

i. persons belonging to minority communities, that is, Hindus, Jains, Sikhs, Buddhists,
Parsis and Christians from Afghanistan, Bangladesh, and Pakistan shall not be treated
as illegal migrants,
ii. the third schedule of the 1955 Act is proposed to be amended to decrease the residence
requirement from 11 years to six years and
iii. OCI cards holders are susceptible to lose their status if they violate any laws of the
country.20
The most glaring and controversial provision of the bill is the criteria provided for granting
citizenship status to the illegal migrants. With no explanation given for this clause it prima
facie appears to be arbitrary. The bill discriminates on the basis of religion and the place of
origin of these migrants. Article 14 of the Constitution which talks about equality is based upon

19 Apurva Thakur, ‘Why constitution amendment bill goes against the basic tenets of the constitution’, 31 March,
2018, Vol. 53. Issue No. 13, Economic and Political Weekly.
20 Citizenship (Amendment) Bill, 2016

19
the principle of reasonableness. The twin test to check the reasonable legislative classifica tio n
are-

i. the classification must be founded on intelligent differentia and,


ii. the differentia must have a rational relation with the object sought to be achieved.21

The classification in this bill discriminates between the illegal migrants on the basis of religio n
violating the first test. It also discriminates on the basis of the place of origin of these illega l
migrants. 22 The central government has insisted that this law is necessary to protect “persecuted
minorities” in India’s international neighbourhood; this object is not in consonance with the
classification in the bill.23

This bill in itself won’t stand the Constitutional test as it is against the basic principle of
secularism.24 As we have seen that secularism forms a part of the Constitutional morality and
is a basic structure of the Constitution. The bill intentionally tries to exclude illegal migrants
belonging to particular religion without any sufficient reason or cause. There appears to be an
attempt made by this bill to attribute a religious character to the Indian nationality.

CONCLUSION

The proposed amendment bill is facing a wide criticism across north eastern regions. The bill
is against the very identity and survival of the indigenous people of the region as it will
drastically affect the demographic setup of these States. The bill places residents who may have
illegally migrated from other countries like Sri Lanka, Nepal, China, and Myanmar at a
disadvantage. It would be immaterial if their religious identity and the reasons for migratio n
were the same. It must be noted that the protection of equality— equality before law and equal
protection of the law—under Article 14 of the Constitution extends to all persons in India, not
just citizens. Hence it does not explain the omissions of Baha’is, Ahmadis, Sufis, Shias,
atheists, etc—minorities that face religious persecution in the enlisted countries, or indeed
Tamils from Sri Lanka; or why a Buddhist who illegally migrated from Pakistan owing to

21 Twin test expressed by J Das in State of west Bengal Anwar Ali Sarkar, AIR 1952 SC 75.
22 Muslim communities from Afghanistan, Pakistan, and Bangladesh have suffered and continue to suffer from
religious persecution. Persecution against the Ahmadiyas is b oth socially pervasive and State-backed in
Pakistan. Shia Muslim communities, particularly the Hazaras, have been subjected to severe persecution in
Afghanistan because of their religious beliefs.
23 M Mohsin Alam Bhat, ‘The Constitutional case against Citizenship Amendment Bill 2019, Vol 54 Issue no

3, Economic and Political Weekly


24 SR Bommai v union of India (1994) 3 SCC 1

20
religious persecution would qualify for citizenship but a Buddhist who fled China for the same
reason would not; or on what empirical or normative base the communities enlisted in the bill
are “more likely to stay permanently” in India than other religious groups? 25

The citizenship amendment bill, in this sense, goes against the basic tenets of our constitutio n
and is bound to fail the reasonableness and constitutional morality test, if passed and presented
before the court. However the government is bestowed with the responsibility of dealing with
the citizenship issues so it has to be seen whether the Judiciary will take cognisance of suc h
unfortunate legislation. This is complicated further by the fact that the people whose rights are
violated are still not citizen of India. The fate of millions of citizens and non-citizens of India
hang in balance. The centre’s enthusiasm to treat certain migrant communities as prodigal sons
and daughters is thus difficult to understand. In any case, the signal the bill sends is clear —
Muslims outside the country, even if persecuted, do not belong in India.

25 (n,26)

21
CHANGING CONCERNS AND CONTOUR OF GOOD CITIZENSHIP: RESHAPING
AND DECODING CIVIC VIRTUE IN CONSONENCE WITH RETURN OF CIVIC
REPUBLICANISM

- Arushi Kaushik

INTRODUCTION

Citizenship is seen in terms of a legal/formal status which includes having a specific


nationality, holding a passport, and deriving from this status, enlightenments and claims, rights
guaranteed by the constitution as well as specific duties and responsibilities. The idea of
citizenship, however, goes beyond the legal-formal framework to denote substantive
membership in the political community. Equality and integration as constitutive elements of
citizenship give it, its unique character as a momentum concept evaluating its internal logic
that demands its benefits necessarily becomes progressively universal and egalitarian.

Citizenship should be seen as a condition that is continuously evolving and changing. At


different junctures, ‘becoming a citizen’ has involved either an extension of the status to more
persons, or a dismantling of hitherto existing structures of oppression. The paper seeks to
conceptualize the prescribed notion of citizenship as the constituent elements of citizens hip
have been uncertain and contradictory. It further locates questions pertaining to whether rights
or duties are the defining elements of citizenship, or whether the arena of politics or state
activities is its rightful domain as opposed to the spheres of culture, economy and society at
large. The paper would provide an overview of the underlining significance for citizenship in
relation to autonomy of the individual, community and the societal contexts that shapes the
need of the individual. It would further deal with questions pertaining to the legitimate unit of
citizenship identity, the nation-state and the global civil society. Therefore, in the paper, there
is an attempt to unravel the existing contradictions co-existing in the conceptual framework of
citizenship. It also aims to explore the various strands in their specific historical contexts,
understanding the tensions and uncertainties over the form and content of citizenship.

 The Author is a Research Scholar at National Institute of Educational Planning and Administration, New
Delhi.

22
NEW EMERGING CONTEXTS OF DIFFERENTIATED AND MULTICULTRAL
CITIZENSHIP

The recent contemporary debates on citizenship and rights have questioned the idea that the
citizens can enjoy rights independent of the context to which she/he belongs. A signific a nt
terrain of contention has opened up in the citizenship theory, with multiculturalism, plurality,
diversity and difference having become significant terms of reference for retheorizing
citizenship. This contest pertains in effect to the unmasking of those differences that were
earlier seen as irrelevant to citizenship. There is a growing effort to redefine citizenship by
giving due importance to cultural differences among individuals and striking a balance between
the numerous religious, ethnic and linguistics identities while constructing a common politica l
identity of the citizen of the nation. Notions of multiculturalism and minority rights have been
invoked in contemporary times as democratic values, whereby cultural communities can lay
claims to inherent rights and negotiate fair terms of inclusion in the national political space.

The case for a differentiatedcitizenship was put forth by theorists who felt that the common
rights of citizenship, originally defined by men in a class-differentiated society, could not
accommodate the needs of large numbers of ethnic, religious and linguistics groups who feel
excluded from the common rights to citizenship.

Therefore, different groups can be accommodated into common citizenship by adopting what
Young (1989) calls 'differentiated citizenship' which means that members certain group should
be accommodated not only as individuals but also through their group and their group and their
rights would partially depend upon their group membership. Young argues against a society
where some groups are privileged while others are oppressed, insisting that as citizens, persons
should leave behind their particular affiliation and experiences and adopt a general point of
view. Reinforcing the perspective and interests of the privileged will tend to dominate this
unified public, marginalizing or silencing those of other groups.

Seeking to redefine the principle of equality, to make it compatible with the ‘multicultur a l
present’. Will Kymlicka (1996) provides a framework of representation and membership that
accommodates cultural and group differences in a way that a person’s group membership and
membership in a cultural community is not of any disadvantage. Therefore it seeks to find a
meeting ground between cultural communities, the right to self-preservation, and rights to
individuals as defined in terms of civil and political rights. Kymlicka suggested ways in which
the demands of national minorities and ethnic groups may be accommodated within a

23
framework of democratic citizenship, First, by protecting the common rights of all citize ns,
which means the protection of civil and political rights of individuals, freedom of association,
religion, speech, mobility and political organization for protecting group difference. Secondly
by accommodating cultural diversity through special legal and constitutional measures, with
members of specific groups being guaranteed special rights or as Young (1990) mentio ned
group-specific or group-differentiated rights.

The argument made in favour of multiculturalism are, thus not only for the correction of
historical wrongs' or even the removal of discrimination. The commitment to sustain the
community is primarily rooted in the belief that communities have much to offer the politica l
community. The investment in diversity is also based on assumption that every culture has
valuable elements that can be shared and learned from. This assumption immediately opens up
possibilities of conceiving the political community as a shared public space where equality is
a significant norm. An important contribution of multiculturalism to the theory of citizens hip
has thus been that it has altered the way in which the political community has been looked at.
Far from being a homogeneous whole, the political community is seen as heterogeneous.
However this heterogeneity is seen as valuable for a democratic public space. In its enthusia s m
to establish the primacy of the community and the idea of the individual- in-community,
multiculturalism runs into the danger of denying the individual the right of critical and creative
membership in the community and overlook the hierarchies and oppressions that community
themselves sustain and promote. By focusing disproportionately on the preservation of
community, it leads to arguments favouring not only the protection of the community from
external constraints, but also the acknowledgement of its right to apply internal restraints. By
empowering the community to apply internal restraints it preserve structures of authority that
work to the detriment of individual freedom. Moreover by acknowledging the community to
apply internal restraints, it seeks to subscribe to the notion that the rights and freedoms of all
individual do not matter. In other words, within such a framework, the rights of individ ua ls
who belong to minority communities appear to be dispensable.

MARSHALL’S CONCEPTION OF EQUAL AND UNIVERSAL CITIZENSHIP

Marshall’s widely accepted definition of citizens as ‘free and equal members of a politica l
community’ comes primarily from the study of citizenship as a process of expanding equality
against the inequality of social class, the later being an integral element of capitalist society. In
citizenship and social class (1950), Marshall distinguishes three strands or bundles of rights

24
constituting citizenship, viz., civil, political and social. Each of these three strands has, he
suggests, a distinct history confined to a particular century and corresponds with the
development of specific state structures- the judiciary, parliamentary institutions of
governance, education system and the welfare state.

The elements of equality and universality are emphasized by those espousing the virtues of
liberal citizenship. Marshall’s definition of citizenship as “full and equal membership in a
political community” is seen as encapsulating the promises of modern citizenship. The
membership is thus also the expression of an identity, of a sense of belonging to the politica l
community that is the nation-state and assures a share in a common (national) culture and social
heritage.

Citizenship’s promise of equality is, moreover, premised on effacing or masking ascriptive and
hierarchical inequalities of culture, caste, gender, ethnicity, etc. For example, the provision of
equal rights by state, or equal protection by the state to its citizens, irrespective of class, caste,
gender, race, has at its core the idea of neutral state. This basically means that for the liberal
state the citizen is like an individual wearing a mask, so that attributes of class, caste, gender,
race are not visible. Logically, then all citizens appear the same to the state and it would
therefore treat everyone equally by applying uniform standards, so that irrespective of whether
a person is an upper caste or a Dalit, male or female, they possess the sane rights and are
protected by the state in the same manner and measure.

REVIVAL OF CIVIC REPUBLICANISM: CIVIC VIRTUE, FREEDOM AND GOOD


CITIZENSHIP

The term civicrepublicanism denotes a constitutional government founded on principles of


sharing of power to prevent arbitrary authority, and the involvement of citizens in public affairs
to the mutual benefit of the individual and the community. In Politics, Aristotle, explicates
what citizenship should ideally be and what the conditions are, in which such an ideal may be
realized. The idea of citizenship around which the states were organized may be seen as
manifesting the conditions in which human beings may, following the Aristotelian dictum,
realize their natural slaves. In its classical formulation, therefore as a binding force in the
community and as the means by which human beings could be in touch with their true nature
“citizenship” emerged as a framework for securing freedom for citizens ”. This notion of
citizenship as the means as well as the state or condition of freedom, has been an enduring
element of citizenship since classical times.

25
Thus, an important element of citizenship as a means and condition of freedom was
participation in civic life. Citizenship should not be limited to those having the capacity to
participate in the process of governance as in the ultimate analysis, citizens constituted only a
small part of the population, whose participation in the public sphere was made possible by the
exclusion and subordination of the private sphere of the economic and social relations which
are further responsible for performing principle political functions. Thus, the classical notion
of citizenship, while handling down the legacy of citizenship as a ‘realm’ of freedom and
participation, also dealt its association with privileges and exclusion.

The idea of good citizenship defined by civic virtue defined by civic virtue, patriotism, and
participatory citizenship, as stated emerged in classical antiquity, and was revived as an ideal
in Renaissance proceeding to the Enlightenment Era. From the late 18 th century the civic
republican tradition gave way to the liberal. The revival of civic republicanism or ‘neo –
republicanism’ has come about in the non liberal as well as liberal articulations of citizens hip,
taking different forms depending on the specific ideological tradition in which it is placed. By
and large the revival has been attributed either to the implications the liberal ‘style’ of
citizenship has had for social relations, or the intrinsic value of civic republicanism itself.

Largely, two strands of ‘neo-republicanism’ can be identified. One strand exhibits


disillusionment with the ‘thin democracy’ that liberal citizenship has generated over the years,
manifested in political apathy and passivity. While theorists on the Left would like to argue
passivity by enabling and ‘empowering’ citizens through democratic participation, radical
pluralists like Chantal Mouffe (1992) believe that a relation of ‘democratic equivalence’ may
be established through political participation and the articulation of difference. These notions
of active citizenship conform to the distinction between civil society and political society,
where civil society is an extra-political arena in which individuals enter in order to articula te
their purely private concerns. On the other hand, political society is generated whenever
individuals communicate not their purely private concerns but rather matters of shared
importance, in order to influence or make demands of the state.

Michael Walzer articulated a different aspect of citizenship. Acknowledging the plurality of


social life, Walzer proposes that citizenship provides a common binding principle. Citizens hip
as a binding principle makes itself manifest in civil society, ‘the setting of settings’ (Walzer
1989), which provides the space individuals as part of diverse social groups are trained in
civility and self-restraint. It is in this articulation of public life, in the shared forum of

26
participation of diverse groups that individuals think of a common good beyond their own
conceptions of good life. Critical of the growing numbers of people who are ‘radically
disengaged’ or ‘passive clients of the state’, Walzer is equally dissatisfied with politica l
participation as the only form of active citizenship. He places faith in the idea of ‘critica l
associationalism’, which is based on the belief that in the modern world the density of
associational life and the activities and understandings that go with it need to be recaptured and
relearned, and proposes that participation in voluntary organizations of the civil society
including churches, families, ethnic associations, voluntary groups, schools inculcating civic
virtues that bind citizens in mutual obligation. On the other hand, another strand represented
by communitarian theorists such as Michael Sandel (1982) blame the passivity of liberal
citizenship for the disintegration of social bonds and the rise in anomie and alienation in
modern societies. Broadly, this strand like those stated, extracts from the republican tradition
the focus on community and duty. However, it is distinct from them, since it omits from its
programme direct political participation and the republica n concern for freedom.

ALTERNATIVE PARADIGM TO INVEST IN HUMAN RIGHTS AND WORLD


CITIZENSHIP

An influential stand of citizenship theorists argued that an increasing globalized,


interdependent and interconnected world, marked by transitional movement of populations are
multicultural national populations one can no longer talk of citizenship in terms of membership
in a territorially limited 'nation state', the hitherto uncontested unit of membership. They
propose the delinking of the relationship between citizenship and the nation state, replacing
with global/world citizenship with its basis in human rights. Yasemin Soysal (1994), for
example, argues that globalization has brought in a 'new and more universal' concept of
citizenship that has 'universal personhood' rather than 'national belonging' as its core princip le.
The assurances guaranteed by membership of the global civil society make the securities of the
nation-state membership redundant. Much of this assurance, it is argued has emanated from
the high degree of agreement on the need for human rights ,and the recognition that violatio ns
of human rights have global ramifications and their protection must therefore, involve
transnational efforts.

The emphasis on world citizenship with human rights at its core, however, riddled with
contradictions. Despite the increased role envisaged for a transitional network and cooperation,
human rights by themselves are not able to ensure the development of participatory networks
essential for safeguarding rights. Moreover the emphasis on human rights and the world
27
citizenship is counterbalanced by a simultaneous lament of a 'crisis in citizenship' which is
addressed with the invocation of stringent immigration laws, the fortification/reinforcement of
national and regional boundaries, and emphasizing 'descent' and 'blood ties' in the consideratio n
of citizenship. Moreover human rights like 'citizens ' are almost always articulated in abstract
and universalistic i.e. context free terms, masking the diversity and historicit y of citizens hip
and rights. The idea of human rights as the replacement for citizenship rights can be retained
only when citizenship is constructed in passive terms, and rights themselves are detached and
distanced from the social and political structures that sustain them, and the specific struggles
that produce them.

CONCLUSION

The significance of contemporary debates on citizenship lies in their admission that the politica l
community is complex, hierarchical, and culturally and ideologically plural. Even the fact that
they envisage a public sphere beyond the boundaries of the nation-state is important, since it
gives an analytical framework to understand the politics of a heterogeneous public. This
assures, as Iris Marion Young (1990) puts it, that (a) ‘no persons actions or aspects of a
person’s life to be forced into privacy, and (b) no social institutions or practices be excluded
apriori from being a proper subject for public discussion and expression’ (Young 1990: 120,
178). The significance accorded to the “contextualized self” too, is crucial in building a
substantive notion of citizenship.

Thus the paper pointed out the criticalities pertaining the notion of community vis a vi civic
virtue regarding what constituted common concerns must be worked out continually through
processes of dialogue and interaction. It is through a concerted effort at the revival of the
political as an interactive public space that collective energies can be congealed into shared
bonds of citizenship. What is required therefore, is not the essentialisation of
community/cultural identities into compartments that exclude dialogue, but to see how
economic, social and political factors, constitute the life experiences of people within and
across communities.

BIBLIOGRAPHY

Faulks, Keith, Citizenship (London and New York: Routledge, 2000).

28
Heater, Derek, Citizenship: TheCivicIdealinWorldHistory, Politics and Education (London:
Orient Longman, 1990).

Kymlicka, Will, MulticulturalCitizenship: ALiberalTheoryofMinorityRights (Oxford:


Clarendon Press, 1996).

Marshall,T.H., CitizenshipandSocialClass (Cambridge, UK: Cambridge Univers ity


Press,1950).

Soysal, Yasemin, LimitsofCitizenship (Chicago: University of Chicago Press, 1994).

Walzer, Michael, ‘Citizenship’, in Terence Ball, James Farr and Russel L. Hanson (eds),
PoliticalInnovationandConceptualChange (Cambridge: Cambridge University Press, 1989).

Young, Iris Marion, JusticeandthePoliticsofDifference (Princeton, NJ: Princeton Univers ity


Press, 1990)

29
NATIONAL REGISTER OF CITIZENS: LEGAL FRAMEWORK AND
IMPLEMENTATION

-Asmita Kumari and Ana Hafeez

INTRODUCTION-

National Register of Citizens (NRC) is a register containing names of all bonafide Indian
Citizens residing in Assam. The data included name, age, fathers/husband’s name, houses or
holdings belonging to them, means of livelihood and so on. The register was first prepared in
1951 census under the directive of Ministry of Home Affairs to weed out the illegal immigra nts
from Bangladesh and neighbouring Nations who have entered into Indian territories after
midnight on 24th March 1971. These registers were kept in the offices of deputy commissio ne rs
and sub divisional officers as per the center’s instructions issued in 1951.1 Assam is the only
state which has an NRC as it has faced influx of people from Bangladesh since the onset of
20th century.

CITIZENARY TEST--

The Citizenship Act of 1955 was amended after the Assam Accord for all Indian origin
people who came from Bangladesh before January 1, 1966 to be deemed as citizens. Those
who came between January 1, 1966 and March 25, 1971 were eligible for citizenship after
registering and living in the State for 10 years while those entering after March 25, 1971,
were to be deported. These are the criteria which need to be fulfilled for being recognized
as the citizen of Assam2 . March 24 1971 is taken as cut-off date by the Assam Accord
because the biggest wave of migration to Assam from Bangladesh took place in March
1971 when the Pakistan army forced many to flee to India.

Many people didn’t make their name in the draft of NRC because of various reasons like -

 The Authors are undergraduate law students of Lloyd Law College.


1 TNN, Five things to know about Assam’s National Register of Citizens, TIMES OF INDIA (July 31, 2018,
09:35 IST), https://timesofindia.indiatimes.com/city/guwahati/five-things-to-know-about-assams-national-
register-of-citizens/articleshow/65207192.cms.
2 Ritu Raj Konwar, The Citizenry Test: Assam NRC Explained, THE HINDU (JULY 31, 2018, 10:38 IST),

https://www.thehindu.com/news/national/other-states/the-citizenry-test-assam-nrc-
explained/article24560028.ece.

30
• D-Voter-
It means dubious or doubtful voters who are disenfranchised by the government for alleged
lack of proper citizenship documents. During the process of NRC, about 2.48 lakh people were
considered as D- voters.
• Declared foreigner-
Under Foreigners’ Act, D-voters are tried by special tribunals to prove their citizenship and if
they get fail in defending their citizenship then they are considered as declared foreigners and
if they are announced as declared foreigners then they are sent to any of the six detention camps
for deportation because of the quasi judicial bodies which was originally set up under the Illega l
Migrants (Determination by Tribunal) Act of 1983. About 91,206 were considered as declared
foreigners as on December 31, 2017.

WHY THE UPDATION OF NRC IS NEEDED?

Since independence till 1971, when Bangladesh was created, Assam witnessed large scale
migration from East Pakistan that became Bangladesh after the war. Soon after the war on
March 19, 1972 a treaty for friendship, co- operation and peace was signed between India and
Bangladesh. The migration of Bangladeshi into Assam continued which triggered the need of
updation of NRC in the mind of the government.

ORIGIN AND STEPS TAKEN IN THE UPDATION OF NRC-

• 1951- In this year a method called NRC was started to catalogue the citizens, their
houses and holdings.
After the establishment of NRC, local citizens of Assam has demanded to update the NRC as
Assam has seen a series of migration to Assam from neighbouring countries first as a colonia l
province and then as a border state in independent India.
• 1979- An ‘anti-foreigners’ agitation was started and continued along with an armed
struggle led by the United Liberation Front of Assam demanding a sovereign state for
indigenous Assamese people.
• 1980- To bring the regular influx of immigrants to the notice of then Prime minis ter,
the all Assam students union submitted a memorandum to Indira Gandhi in 1980 seeking her
“urgent attention” to the matter.

31
• 1983- Parliament enacted the illegal migrants (determination by tribunal) Act (IMDT),
1983. This act made applicable only to Assam, was expected to identify and deport illega l
migrants in the state.
• 1985- After the signing of the Assam Accord between representatives of Governme nt
of India and the leaders of the Assam Movement in New Delhi on 15 th August 1985, the anti-
foreigners agitation came to an end which provided the arrangement of those who have entered
the state before 1966. And those who entered the state between 1966 and 1971 would be deleted
from electoral rolls and lose their voting rights for 10 years. Those who entered on or after
March 25, 1971, on the eve of the Bangladesh war would now be declared as foreigners and
will be deported.
• 2005- A tripartite meeting among the Centre ,Assam government and all Assam
students union headed by the then Prime Minister Manmohan Singh decided to update the
NRC.
• 2009- Supreme Court got involved in this matter after a writ petition filed by the Assam
Public Works.
• 2010- Pilot projects were started for updating the NRC but were stopped because of
some law and orders situations.
• 2011- The State government set up a cabinet sub-committee to simplify the procedure
of updating NRC.
• 2013- The process of updating NRC started as per the Supreme Court order given by
Justice Ranjan Gogoi and Justice R.F. Nariman. The NRC updation was furthered as per the
Citizenship Act 1955 and according to the rules framed in the landmark Memorandum of
Settlement (MoS) - the Assam Accord.
• 2014- The Supreme Court directed the government after the Assam
SanmilitaMahasangha v. Union of India3 case which challenged the section 6A of Citizens hip
Act to resume the NRC updating process.

ACTS WHICH LEADS IN THE IMPLEMETENTATION OF NRC-

• CITIZENSHIP ACT 1955-


Citizenship belongs to everyone in the territory of state as described by the principle of Jus Soli
(right of the soil) and Jus Sanguinis (right of blood). The Constitution describes the various
categories of persons who are eligible for the citizenship as described in the Articles 5-11 of

3 Assam SanmilitiaMahasangha v. Union of India, A.I.R. 2015 S.C. 783 (India).

32
the constitution which was enforced on November 26, 1949. Article 11 of the Constitutio n
empowers the Parliament to regulate citizenship by law and under this The Citizenship Act,
1955 was passed. It has been amended in 1986, 2003, 2005 and 2015 for the grant of
citizenship.
According to the Citizenship Act (1955), an illegal immigrant is defined as a person who enters
India without a valid passport or stays in the country after the expiry of the visa permit and also
those people who uses false documents for the immigration process. 4
• THE 1986 AMENDMENT OF CITIZENSHIP ACT, 1955-
This amendment inserted Sec 6A under which all persons of Indian origin who had entered
Assam before 1 January, 1966 and been its ordinary residents were deemed to be Indian citize ns
and those who came after 1 January, 1966 but before 25 th March, 1971, were to get citizens hip
up on registration at the expiry of 10 years after they had been detected as foreigners; and those
persons who had entered after 25th March, 1971 by the identification under the IMDT Act,
1983 were to be deported. `
• THE IMMIGRANTS (EXPULSION FROM ASSAM) ACT IN 1950-
The Parliament had enacted this Act for the protection of social and cultural interests of the
Assamese people by which the Central government could order the removal of any person who
had come into Assam from outside India and whose stay is detrimental to the general public of
India or of any section thereof or of any scheduled tribe in Assam.
• CITIZENSHIP REGISTRATION OF CITIZENS AND ISSUE OF NATIONAL
IDENTITY CARD RULES (2003)-
These rules were amended in 2009 and 2010 for preparation of National Register of Citizens
by inviting applications from the people of Assam for updation of the old (NRC) 1951 of Assam
based on relevant records. In 2010, to start the updation process of NRC in Assam, Pilot
Projects were created for updation of NRC in two blocks (one each in Kamrup and Barpeta
Districts) but they were stopped due to legal problems. In July 2011, Cabinet Sub Committee
was set up by Government of Assam to make the procedure easy for updating of NRC in
Assam. In 2013, the Government of Assam had submitted revised modalities which were
examined by the Registrar General of India and approved by the competent authority for
updation of NRC work. The work of updation of NRC 1951 will be done by including the

4 Faizan Mustafa, Who Is a Citizen- In Assam, India? INDIAN EXPRESS (June 6, 2018. 7:31:52 IST),
https://indianexpress.com/article/explained/who-is-a-citizen-in-assam-india-citizenship-act-nrc-5205603/ .

33
names of persons from the electoral rolls up to the midnight of March 24, 1971 and their
descendants. In 2013, a Gazette Notification has already been issued for updating NRC 1951
in whole of Assam. Rule 4A of Citizenship Rules, 2003 and its Schedule that are central to
NRC updation are also made applicable on Assam. Rule 4A differentiates preparation of the
NRC in Assam from the rest of the country by replacing house to house enumeration with
invitation and receipt of applications from all citizens, for collection of specified particula rs
relating to each family and individual, residing in the state and it also provides for ascertaining
of citizenship status based on the NRC, 1951 and Electoral Rolls up to the mid night of the
24th March, 1971. It also provides for inclusion of such persons in NRC who are origina l
inhabitants of Assam and whose citizenship is beyond doubt.
• THE CITIZENSHIP AMENDMENT BILL 2016-
The government was planning to change the definition of illegal migrants and in 2016, this bill
came which seeks to amend the 1955 Act to provide citizenship to illegal migrants from
Pakistan, Bangladesh and Afghanistan, who are of Hindu, Sikh, Buddhist, Jain, Parsi and
Christian the eligibility for citizenship if they had entered the country before December 14,
2014. In the original Act, an applicant who has obtained citizenship by naturalisation must have
resided in India during the last 12 months, and for 11 of the previous 14 years. This Bill relaxes
the 11-year requirement to six years for applicants belonging to these six religious communities
and three countries. The idea of this bill is behind the promise which had been made by BJP in
2014 general election to welcome Hindu refuges and to provide shelter to them. The bodies
like Assam Gana Parishad (AGP), congress (Opposing party) and certain NGOs were opposing
this bill as they said that this bill is working against the cultural and linguistic identity of the
indigenous people of the state and also the process of deportation or duration of detention is
not clear as mentioned by the government because they are not considering the Muslims who
were identified as undocumented immigrants and this would be clearly discriminating towards
them.
• THE CITIZENSHIP AMENDMENT BILL, 2019-
The present status of the citizenship in NRC has changed because of The Citizens hip
Amendment Bill, 2019 passes on Jan 8, 2019 which has been strongly criticized by large
section of people and organizations in the northeast because the bill seeks to provide Indian
Citizenship to persecuted minorities-Hindus, Sikhs, Jains, Buddhists and Christians- from
Bangladesh, Pakistan and Afghanistan after they have been stayed in Indian from 7 years,

34
instead of 12 years at present. This is applicable to those who came to India before December
31, 2014.
The citizenship would not be granted to any foreigner without the consent of State governme nts
concerned after the transit of Citizenship (Amendment) Bill, as said by the Home Ministr y.
Earlier, the six religious minorities from Pakistan, Bangladesh and Afghanistan were earlier
given a special dispensation for grant of long term visas now they all have to prove that they
belonged to any of the three countries and were persecuted on religious basis. This bill has been
opposed on the basis that it will nullify the provisions of Assam Accord of 1985, which fixed
March 24, 1971 as the cut-off date for deportation of all illegal immigrants but not on the basis
of religion.

There have been protests against the Bill from starting as it was introduced and passed in Lok
Sabha, but Home Minister Rajnath Singh has already declared that “the Bill will only apply to
all the states and Union Territories and the beneficiaries can reside anywhere”.

CHALLENGES FACED BY THE GOVERNMENT IN THE UPDATION OF NRC-

The matter of updating NRC has been politicized after the publishment of the second and the
final draft in which the names of 40, 07,707 people in Assam were not included in the list. The
Trinamool Congress (TMC) and the Congress have opposed the implementation of NRC as
there was no earlier discussion between the centre and the Bangladesh government before
publishing the NRC draft as well as no pact has been signed between India and Bangladesh for
the deportation5 . On the other hand, BJP was defending the process of updating NRC. Even
though the updation of NRC in Assam is being carried on under the supervision of the Supreme
Court and also the BJP government is giving utmost attention to this matter, it would be
difficult o implement it properly and effectively because of the following reasons-

• Since around 40 lakhs people were not mentioned in the second draft of NRC and even if
the figure decreases to its half number after hearing to claims, it would be very diffic ult
for the Union to deport those people to Bangladesh. And also the neighbouring countries
have already stated that this issue is totally an internal matter of Assam and it has nothing
to do with them. According to the reports Hasanul-Haque Inu, Bangladesh's Informatio n

5 PTI, Not opposed to NRC but to the way it’s being implemented: Congress, TIMES OF INDIA (Aug. 2018,
19:40 IST), https://timesofindia.indiatimes.com/india/not-opposed-to-nrc-but-to-the-way-its-being-
implemented-cong/articleshow/65368084.

35
Minister has given statement to the Indian media that his country need not respond because
the 40 lakh people were not Bangladeshis. These people belonged to Assam's
neighbouring states in India, he added.
• Several discrepancies are being noticed in the final draft of NRC. For example- In one
case the name of one of the twins is missing, in another, the child's name is missing while
that of the mother is there or maybe the name of a spouse is not there etc. It would become
almost impossible for the government to force the separation of members from one family
and deport them to Bangladesh.
• The implementation of NRC may lead to the situation of civil war not just in Assam but
also in other parts of India. Most of the people whose names are not in the list are Muslims.
They might feel persecuted under the rightist BJP led Modi government at the centre and
SarbanandaSonowal government in Assam.
• According to the plan those people whose names are not included in the NRC would be
barred from the voting rights. But there are several cases in which people are having bogus
official identity cards such as Aadhaar, PAN card, ration card and even voter's identity
card due to lack of administration. Such scenario depicts that the government may not be
able to stop the illegal immigrants from voting.
• Those people whose names are not in the NRC will not be entitled to buy land or a house
in India but it would be very difficult for the government to retrieve the land or houses
which has been already registered on the names of such people. Even if the governme nt
succeeded in retrieving those properties it may not be able to stop people from buying
benami properties which are quite common in India.

CHALLENGES FACED BY THE CITIZENS IN THE UPDATION OF NRC-

• In March last year, the Guwahati High Court dismissed the residency certificates issued
by the Gram Panchayat stating that it could not be used as a link document connecting
people born after 1971 with their ancestors. This decision affected women the most as
they are mostly dependents either on the husband or parents and they do not have much
documents. But the Supreme Court overruled the decision and allowed the women those
who are categorized as “original inhabitants” and relying on such certificates made it
to the first draft of the register, published on December 31, 2017.

36
• In the first draft around 1.4 crore people were not included and in the second draft the
figure decreased to 40 lakh. Among them 2.48 people are tagged as D-voters. Now the
people not mentioned in the list need to file applications and claims for being mentio ned
in the NRC list.

• Many people who have been missing from Assam are being labeled as illega l
immigrants however the officials prefer to call them undocumented individuals. 6

• Due to annual floods, the villages in Assam gets ravaged and disappears by the current
o fiery Brahmaputra River. Because of this natural disaster, documents get destroyed
and address changes. This is a major problem which the authorities should take into
consideration.

• It is often noticed that instead of helping, officials asks for inaccessible evidence and
generally being uncooperative.

• Many people including the poorest and illiterate have been running here and there with
their old and damaged documents to prove their identity.

• There have been several cases where families have been divided as some are declared
doubtful voters and foreigners while others are declared bonafide citizens.

MEASURES TAKEN BY THE GOVERNMENT FOR OVERCOMING THE


PROBLEMS-
• According to the notice issued by NRC state coordinator, government of Assam, name,
etc correction- services for online correction of names and other particulars appearing
in draft NRC will be started from 2nd January 2019.This facility can be availed by
visiting NRC Assam’s website www.nrcassam.nic.in. The facility for name correction
will also be available by submission of correction forms at NRC SevaKendras (NSKs)
till 31/1/19.

6 India Today Web Desk, People not in NRC won’t be jailed or deported: All you should know about
Assam’s National Register of Citizens, INDIA TODAY (July 30, 2018, 14:210)
IST,https://www.indiatoday.in/education-today/gk-current-affairs/story/assam-nrc-national-register-of-
citizens-second-final-draft-1300022-2018-07-30.ht ml.

37
• The applicants can also call on the toll free numbers—15107 for Assam and
18003453762 from outside the Assam by referring to their 21 digit application receipt
number(ARN) which is issued against online application form.
• A joint committee of the state and central government was appointed to study the
position of those not in the final NRC. 7
• On 31st July 2018 the Supreme Court announced that the authorities will not take
coercive action against the 4 million people, whose names did not figure in the NRC,
on the grounds that the 30th July NRC was merely a draft. 8
• On August 14 2018, the Centre informed the Supreme Court that distinct IDs containing
biometric information will be created for the 4 million people filing claims and
objections against the 30th July draft.
• The Supreme Court advised the Centre and Assam to assume role of an ‘Aristotelia n
State’ in finalizing the Assam National Register of Citizens (NRC).
• As many people’s name were not in the list of NRC Assam the Supreme Court said that
the filing of claims would begin on 25 th of September and will continue for the next 60
days. The documents that can be used for filing the claims are-
I. Land documents like registered sale deed, records of land rights up to march 24
1971 (midnight).
II. Permanent residential certificate issued from outside the state up to March 24,
1971(midnight).
III. Passport issued by the Government of India up to March 24, 1971(midnight).
IV. Life insurance corporation of India insurance policy(LICI) of relevant period up
to March 24, 1971 (midnight)
V. Any license /certificate issued by any government authority of relevant period
i.e. up to march 24, 1971 (midnight).
VI. Document showing service/employment under government /public sector
undertaking up to march24, 1971 (midnight).
VII. Bank /post office accounts of relevant period i.e. up to March 24, 1971
(midnight).

7 Ratnadip Chaudhary, 2.6 Lakh Objections Received In Assam citizen list, Most In Last 3 Days, NDTV
(Jan. 2, 2019, 03:17 IST), https://www.ndtv.com/india-news/assam-nrc-national-register-of-citizens-list-2-
6-lakh-objections-received-most-in-last-3-days-1971162.html.
8 Ashish Tripathi, No coercive action against anyone on basis of NRC: SC, DECCAN HERALD (July 31,

2018, 22:45 PM), https://www.deccanherald.com/national/no-coercive-action-against-684802.ht ml.

38
VIII. Birth certificates issued by the competent authority up to March 24, 1971
(midnight).
IX. Educational certificates issued by board/universities up to March 24, 1971
(midnight).
X. Records /processes pertaining to court up to March 24, 1971 (midnight)
provided they are a part of a processing in a judicial or revenue court.

CASES RELATED TO NRC-

• In 2005, a three-judge Bench led by Chief Justice of India R C Lahoti struck down the
IMDT Act as unconstitutional since it applied only to Assam and was at variance with
the Foreigners’ Act, 1946. It expressed concern over demographic change in Assam,
and made references to “international Islamic fundamentalism”9 .
• In 2007, the court quashed the Foreigners (Tribunals for Assam) Order, 2006, which
put the onus of proving a person a foreigner on the complainant (Sonowal II, December
5, 2006). 10
• In 2014, where the constitutionality of the 1986 amendment was challenged, the court
referred the matter to a Constitution Bench. The division bench of Supreme Court
comprising CJI Ranjan Gogoi (then Justice) and Justice Rohinton Nariman held the
updation of NRC under the Citizenship Act 1955 and Citizenship (Registration of
Citizens and Issue of National Identity Card Rules) 2003. The Court directed that the
Standard Operating Procedure (SOP) for filing objections to the NRC list should be
examined by stakeholders and petitioners in the current litigation. The Court named
eight stakeholders — Assam Public Works, Assam SanmilitaMahasangha (an
indigenous people’s organisation of Assam), National Democratic Front of Bodoland
(Progressive), Indigenous Tribal Peoples Federation, All Assam Bhojpuri Parishad,
Joint Action Committee for Bangali Refugees, All Assam Minorities Students’ Union
(AAMSU) and Jamait Ulama-i-Hind – for the purpose.11

9 SarbanandaSonowal v. Union of India, (2005) 5 S.C.C. 655 (India).


10 Ibid.
11 Assam SanmilitiaMahasangha v. Union of India, A.I.R. 2015 S.C. 783 (India).

39
In the three judgments- 2005, 2006 and 2014, the Supreme Court had expressed displeasure
about the citizenship law in respect of foreigners who had entered Assam, being different from
the law in the rest of the country.

CONCLUSION-

According to the notification issued by the Registrar General of India, “The central governme nt
has considered it necessary and expedient in the public interest to complete the said
enumeration in connection with the updating of National Register of Citizens, 1959, by the 30th
day of June 2019.”12 According to Prateek Hajela, NRC programme coordinator “the
government has cleared its stand and if there are people whose names are not present in NRC
will neither be jailed nor will they be deported.” Even after the final NRC list is published,
people will still have the right to appeal in the foreigner’s tribunal after which applicants can
approach the High Court if they are not satisfied with the result of the NRC process.

But it is the matter of concern that what will be the fate of those people who will fail to prove
their identity as Indian whether they will be jailed or deported or if they are going to stay in
India then what will be the position of those people and rights available to them.

REFERENCES

Websites-

• https://www.thehindu.com/news/national/other-states/centre-extends-deadline-to-
update-nrc/article25843641.ece

• https://www.deccanherald.com/national/no-coercive-action-against-684802.html
• https://timesofindia.indiatimes.com/india/not-opposed-to-nrc-but-to-the-way- its-
being-implemented-cong/articleshow/65368084.cms
• https://timesofindia.indiatimes.com/city/guwahati/five-things-to-know-about-assams-
national-register-of-citizens/articleshow/65207192.cms
• https://www.thehindu.com/news/national/other-states/the-citizenry-test-assam-nrc-
explained/article24560028.ece

12 PTI, Centre extends deadline to update NRC, THE HINDU (dec.27, 2018, 14:31 IST),
https://www.thehindu.com/news/national/other-states/centre-extends-deadline-to-update-
nrc/article25843641.ece.

40
THE NRC REGIME: PAST, PRESENT AND FUTURE

- Aviva Jogani and Mohak Kapoor


I. ABSTRACT
The National Register of Citizens (“NRC”), which is being updated for the first time since
1951, is meant to be a definitive list of Indian citizens in Assam, separating them from those
the State believes are “illegal migrants”. 1 This administrative document, not open to public
inspection, decides the fate of millions of people residing in Assam.2 As per the Rules framed
by the Central Government under the Citizenship Act, 1955, the procedure of which is currently
being supervised over by the Supreme Court of India, every resident is required to submit
necessary documents to prove his/her citizenship status.3 Failure to produce such documents
would not only declare them as “illegal migrants” in a country where they have been residing
since several decades, but also result in their repatriation to the country of which they are found
to be citizens.4 The entire controversy emanates from the amendment to the Citizenship Act
that added Section 6A to the Act in 1985, in terms of the Assam Accord, which was a politica l
settlement that resulted in peace in Assam after years of discord and violence.5 The Amendment
granted citizenship to the people who came from East Pakistan, now Bangladesh, up till a
certain date only.

While the 1985 Amendment and subsequent Rules framed under the Act are being
‘implemented’, the on-going debate around the issue of updating the NRC is two-fold. The
proponents of updating the NRC believe that India is a developing country with limited
available resources. Thereby, the indigenous population of Assam must be protected from the
influx of illegal migrants to safeguard their employment opportunities and access to basic
resources along with their culture and identity. The opponents of updating the NRC believe
that apart from being an attack on the minority Muslim population most of these people, albeit
likely illegal migrants, have been residing peacefully in Assam for several decades. Disrupting

 The Authors are undergraduate law students at O.P. Jindal Global University, Sonipat.
1 “White Paper on Foreigners Issue”, Home and Political Department, Government of Assam, available at:
<https://assam.gov.in/web/home-and-political-department/white-paper#41>
2 Anil Roychoudhury, “National Register of Citizens, 1951”, Economic and Political Weekly, Vol. 16, No. 8

(1981), pp. 267-268


3 Assam SanmilitaMahasangha&Ors v. Union of India, Writ Petition (Civil) No. 562 of 2012, para 42-48
4 Supra note 1; Citizenship Act, 1955; Citizenship Rules, 2003
5 Citizenship (Amendment) Act, 1985; Assam Accord, 1985, available at:
<https://assamaccord.assam.gov.in/portlets/assam-accord-and-its-clauses>

41
their life, which they have built over several years, would be morally injudicious. This paper
seeks to reconcile these conflicting views and arrive at an amicable way forward.

In the first part of this paper, the authors will trace back to the history and events leading up to
the initiation of the procedure of updating the NRC, including the Amendments to the
Citizenship Act and Rules framed thereunder. In the second part of this paper, the authors seek
to examine the legal framework and implementation of the NRC in Assam. The third part of
this paper will be dedicated towards providing a critical analysis of the post-NRC regime and
issues regarding illegal migrants in Assam, includ ing the inadequacies of the remedies for those
declared illegal migrants. In conclusion, the fourth part of this paper is aimed at arriving at an
amicable solution to this problem, which has gained international recognition.

II. PART ONE: HISTORICAL BACKGROUND


Since the past few decades, indigenous Assamese groups have put immense pressure on the
State to implement the process for updating the NRC; a formidable issue stemming from the
influx of migrants first witnessed in Assam as a colonial province and subsequently as a border
State in Independent India.6 The partition of India and Pakistan in 1947, along with the
communal riots that followed, had a wide-ranging, radical effect on the demographic
composition in Assam, resulting in nearly 5,00,000 refugees from East Pakistan seeking shelter
in the State.7 Reacting to this alarming crisis, The Immigrants (Expulsion from Assam) Act,
1950 was passed giving the Central Government powers to remove specified persons from the
State whose stay was detrimental to the interests of the general public, but excluding its
application on any person residing in Assam on account of civil disturbances, or fear of the
same, in Pakistan.8 A new set of communal riots broke out in Assam and East Pakistan in 1950
causing countless persons to flee their homes. Jawaharlal Nehru and Liaquat Ali Khan, former
Prime Minister of India and Pakistan respectively, signed a pact on 8 th April 1950 referred to
as the “Nehru-Liaquat Agreement” allowing refugees from both countries to return to their
respective homes by 31st December 1950 in order to secure the rights to their immoveab le
properties.9

6FPJ Web Desk, “Assam NRC Issue: What is NRC And What Happens To 40 Lakh People Left Out In The
Draft; All You Need To Know”, Free Press Journal (2018), available at:
<https://www.freepressjournal.in/headlines/assam-nrc-issue-what-is-nrc-and-what-happens-to-40-lakh-
people-left-out-in-the-draft-all-you-need-to-know/1325356>
7 Supra note 1
8 The Immigrants (Expulsion from Assam) Act, 1950
9 Jawaharlal Nehru & Liaquat Ali Khan, “Agreement between India and Pakistan on Minorities” (1950); Supra

note 1

42
The so-called “foreigners issue” began with the preparation of the NRC in 1951, by
incorporating the particulars recorded in the Census of 1951, to weed out illegal migrants from
East Pakistan, resulting in “state sponsored” persecutions and violence against the minor ity
Muslim population in Assam.10 Religious discrimination in Assam soared in the late 1960’s
with thousands of Muslims being deported to East Pakistan under the Prevention of Infiltra tio n
from Pakistan (PIP) Scheme that was intended to prevent infiltration at border outposts and
create an unpleasant atmosphere for the people of Pakistan entering India. 11 Several Muslims
were forced out of the country without any formal or legal mechanism for deportation with
many families being termed as “illegal migrants” and served upon with “Quit India Notices”
ordering them to leave the country. Although the PIP Scheme was abandoned in 1969 after its
purpose was served with nearly 1,92,079 persons being deported back to Pakistan, arbitrary
violence and persecutions against Muslim minorities continued in Assam.12

This humanitarian crisis took a new turn in 1971 during the Bangladesh Liberation War
between West Pakistan (now Pakistan) and East Pakistan (now Bangladesh) that resulted in the
formation of an independent Bangladesh, wherein a large number of Bangladeshi’s migrated
to Assam in order to escape the armed conflict and violence perpetrated during the war. 13 The
rise in Bangladeshi migrants within Assam territory triggered of a series of “anti-foreigner
agitations” leading to the All Assam Student’s Union (AASU) and All Assam Gana Sangram
Parishad (AAGSP) demanding protection of the interests of indigenous Assamese population,
compelling the government to deport the illegal migrants. 14 The six-year long xenophobia from
1979 to 1985 witnessed frequent strikes, ethnic violence, unstable governments and cost
countless lives, including victims of the infamous “Nellie Massacre” of which nearly 3,000
were Muslims.15 However, on August 15, 1985, the “anti-foreigner agitations” came to an end
with the signing of the “Assam Accord” between AASU, AAGSP and the Government of
Assam. The Accord placed 1.1.1966 as the base date and year for the purpose of detection and
deportation. Those who entered Assam between 1966 and 1971 would be deleted from the

10 “NRC: In A Nutshell”, Office of the State Coordinator of National Registration (NRC), Assam, Government of
Assam, available at: <http://www.nrcassam.nic.in/nrc-nutshell.html>; Abdul Kalam Azad, “Assam NRC: A
History of Violence and Persecution”, The Wire (2018), available at: <https://thewire.in/rights/assam-nrc-a-
history-of-violence-and-persecution>
11 Supra note 1
12 Supra note 10
13 “Bangladesh War of Independence”, New World Encyclopedia, available at:
<http://www.newworldencyclopedia.org/entry/Bangladesh_War_of_Independence>
14 ShorboriPurkayastha, “Nellie Massacre-How Xenophobia, Politics Caused Assam’s Genocide”, The Quint,

available at: <https://www.thequint.com/explainers/nellie-massacre-exp lained>


15 Supra note 10

43
electoral rolls and be disenfranchised for a period of 10 years. Those who entered Assam on or
after March 25, 1971 would be declared as “foreigners” and thus deported. The Assam Accord
is the basis for updating the National Register of Citizens. 16 The Assam Accord has been
legitimized under Section 6A of the Citizenship Act, 1955. This Section has been challenged
before the Supreme Court of India on the ground that it contrasts Article 6 of the Constitutio n
according to which the cut-off date for determining citizenship in India is July 19, 1948. The
Bench comprising of Justice Ranjan Gogoi and Justice R.F. Nariman directed this issue to be
referred to a larger five-judge constitutional bench, which is still pending for final
determination before the Apex Court. 17

III. PART TWO: NATIONAL REGISTER OF CITIZENS


The National Register of Citizens is a register containing names and particulars of all “Indian”
citizens. The first, and only, time the NRC was prepared was in 1951 after the conduct of the
Census of 1951, on the basis of the data recorded of all persons enumerated during that
Census.18 The updating of the National Register of Citizens has been well received and viewed
as a way of finally putting to rest festering debates around undocumented immigrants in
Assam.19 However, according to Tarun Gogoi, former Chief Minister of Assam, there was no
mention of updating the NRC from 1985 to 2005. 20 Although the NRC is a mode of
implementation of the Assam Accord, the relationship between the two is tenuous at best since
the Assam Accord makes no mention of the NRC being used as a means to detected illega l
migrants and there is twenty year gap between signing of the Assam Accord and the first round
of talks for updating the NRC. The NRC is currently being updated since 2015 due to two
reasons. First, under the December 2014 Supreme Court directive 21 and second, the 2005
tripartite agreement between the Manmohan Singh and TarunGogoi governments and the All
Assam Students Union (AASU) to implement the Assam Accord.22

16 Supra note 5
17 Mohsin Alam Bhat, “On The NRC, Even The Supreme Court is Helpless”, The Wire (2019), available at:
<https://thewire.in/law/nrc-supreme-court-crisis>; Supra note 3
18 Supra note 10
19 Ajaz Ashraf, “NRC: The Assamese Middle Class Has Shrunk The Idea Of Citizenship But Now Faces Pressure

From Below”, Scroll.in (2019), available at: <https://scroll.in/article/890025/nrc-the-assamese-middle-class-has -


shrunk-the-idea-of-citizenship-but-now-faces-pressure-from-below>
20 Ajoy Ashirwad Mahaprashasta, “Interview| NRC Is My Own Baby, BJP Has Made It Weak And Sick:

TarunGogoli”, The Wire (2018), available at: <https://thewire.in/politics/nrc-bjp-congress-assam-tarun-gogoi-


interview>
21 Supra note 3
22 Sangeeta BarooahPisharoty,“The NRC and Citizenship Bill Have Fuelled Old Divisive Anxieties in Assam”, The

Wire (2018), available at: <https://thewire.in/politics/assam-nrc-citizenship-bill-bangladesh>

44
Section 2(1)(b) of the Citizenship Act defines an “illegal migrant” as a foreigner who has
entered India without a valid passport or other prescribed travel documents. The Assam Accord
sets March 25, 1971, as the cut off date for identification and deportation of illegal migrant s
from East Pakistan (now Bangladesh). The Foreigners Act, 1946 confers upon the Central
Government the power to pass orders restricting the entry of foreigners in India. The
Citizenship (Registration of Citizen and Issue of National Identity Cards) Rules, 2003
authorizes the Registrar General of Citizen Registration to prepare and maintain the National
Register of Indian Citizens in the State of Assam. Section 3(3) of the 2003 Rules lists down the
particulars that have to be collected from each individual for the preparation of the NRC. There
exists a maze of documents that need to be submitted in order to establish such relations hip
between people such as mark sheets, passports, land records and others. The most crucial
document is the “legacy data”, i.e. if a person’s name appears in the NRC of 1951 or in the
electoral rolls till 1971; they and their descendants become Indian citizens and subsequently
appear in the updated NRC.23 Those whose names do not appear in the updated NRC will have
to go through the judicial procedure of Tribunals, set up exclusively for Assam, to establish
their citizenship.24 Initially, tribunals formed under the Illegal Migrants (Determination by
Tribunals) Act, 1983 operated as the judicial body to determine claims regarding illeg a l
migrants. However, the Supreme Court struck down the Act in 2005 as it was found to be
violative of Article 14 and 355 of the Constitution.25 Ever since then, talks to update the NRC
have surfaced. Consequently, the Immigrants (Expulsion from Assam) Act 1950 together with
the Foreigners Act and the Foreigner Tribunal Order of 1964 have become the new tools in the
hands of the Government to detect illegal migrants.

The first “pilot project” to update the NRC began in 2010, which was put to standstill due to
the protests by AASU. The Supreme Court passed an order in 2014, directing the process for
updating the NRC to be completed by January 31, 2016.26 The State missed the deadline and
the first draft of the NRC was published on December 31, 2017. The second, and final, draft of
NRC was completed on July 30, 2018. Nearly 1.4 Crore and 40 Lakh names have been
excluded from the first and second draft, respectively. This figure includes about 2.48 Lakh

23 TridipMandal, Abhay Sharma and Prashant Chauhan, “Assam NRC: The Citizenship Chaos That Has The State
On The Edge”, The Quint (2018), available at: <https://www.thequint.com/videos/nrc-in-assam-illegal-
bangladesh-migrants-30-july-assam-accord>
24 The Foreigners (Tribunals) Order, 1964
25 SarbanandaSonowal v Union of India &Ors, AIR 2005 SC 2920
26 Supra note 3

45
disenfranchised voters (“D-voters”).27 The Supreme Court has vehemently reiterated that it will
not extend the deadline for publication of the final Assam NRC. As discussed above, those
who do not find their way to the final list will have to argue their case before the Foreign
Tribunals set up in Assam.

The entire procedure adopted by the State of Assam to weed out illegal migrants has been
widely criticized for it has placed the burden of proof on every citizen of Assam to prove their
identity; setting it apart from customary deportation procedures wherein the onus of proof is
on the State to show whether or not an individual is residing in a particular country illegally or
undocumented.28 This draconian procedure of requiring every individual to come forth and
prove his/her identity is not only morally absurd and unprecedented but also puts people in an
embarrassing situation by creating an atmosphere of uncertainty and anxiety about oneself.

IV. PART THREE: CRITICAL ANALYSIS OF THE POST-NRC REGIME


So far, the Authors have thrown light upon the past and present scenario regarding the NRC in
Assam; the current section is a leap into the future of this humanitarian crisis. Given the shee r
size of this procedure, the moral and legal consequences of implementation of the NRC are but
naturally ruminated upon by all since the consequence of this scheme has the ability to leave a
daunting echo upon the legal framework and life of every individ ual in this country. With 4
million people being excluded from the final draft of the NRC, Assam is looking at a huge
problem of Statelessness, extraordinarily and dauntingly larger than the one reported in
Myanmar’s Rakhine Province.29 The numbers reported have been no less than an opponent for
this scheme and for the Central Government themselves. Millions of people being left out of
the draft list, in what they call as their “home state”, with most of them facing hardships in
filing their claims, has encouraged many critics of this scheme to brand it as “an immine nt
crisis.”30 Hence, the urge to ask, “what will happen once the scheme is implemented
completely?” follows naturally.

The first plausible effect of this scheme is directly linked to the condition in which these alleged
“illegal citizens” would be left once ousted from what they believe to be their home state. Since

27 Supra note 6
28 SanghamitraMisra, “Misleading and Factually Incorrect: A Response to an Article Linking NRC to Assamese
Chauvinism”, Scroll.in (2018), available at: <https://scroll.in/article/896337/ mislead ing-and-factually-incorrect -
a-response-to-an-article-linking-nrc-to-assamese-chauvinism>
29 SubirBhaumik, “Assam is slipping into a Quagmire”, The Telegraph (2018), available at:
<https://www.telegraphindia.com/opinion/thanks -to-bjp-policies-like-nrc-and-cit izenship-amend ment-bill-
assam-is-slipping-into-a-quagmire/cid/1677730>
30 Supra note 17

46
the commencement of the process of updating the NRC, the Central Government has re-iterated
that the goal behind this procedure is to weed out illegal migrants who have been living,
undocumented, in the State of Assam. In furtherance of the same, the State has clarified that
all those who do not make it to the final list of the updated NRC will be deported, as per the
Assam Accord, to the country of which they are found to be citizens. Looking at the historic a l
context with respect to the influx of illegal migrants in Assam, a reasonable presumption can
be drawn that most of them will be deported to Bangladesh, since that is where most of them
arrived from after the Liberation War of 1971. 31 As ideal and convenient as this might sound,
the reality is the polar opposite. Looking at the strong stance taken by Bangladesh’s High
Commissioner to India, Syed Muazzem Ali, on the NRC by deeming it to be an “internal issue”
within India rather than a “bilateral issue” between the two countries, 32 with no air about any
formal agreement between the two countries to accommodate the people not included in the
final list, makes it abundantly clear that Bangladesh does not intend to accommodate the surge
of refugees into their country in the event of any deportation carried out. Bangladesh’s stance
clearly crosses the boundary of limiting NRC to an “internal issue” within India as it has far
reaching international humanitarian consequences that have to be considered since the Assam
government, in their issued White Paper, has expressly laid down that once the Foreigners
Tribunal deems any person as an illegal citizen, the said person shall be subjected to
deportation.33 Additionally, it must be noted that while the State has declared many of these
people as foreigners, there exists no repatriation treaty between Indian and Banglades h
whereby they can be deported.34

The question thus naturally follows is, “if Bangladesh is not taking in these people, then where
will they be deported?” The next stop for these declared “illegal migrants” is a detention center.
A detention center, simply put, is a holding place wherein once declared stateless, people reside
as refugees awaiting asylum. Thus, if such “Bangladeshi Citizens” as declared, are not given
asylum in Bangladesh, they will be placed in detention centers until any other alternative is
found. As per the Assam government, such centers are being used to hold declared “ille ga l
migrants” in order to prevent them from going untraced. 35 Assam has received permission from

31 RituparnaBhuyan, “NRC Final Draft: Why Deportation Is A Rather Impossible Idea”, News 18 (2018),
available at: <https://www.news18.com/news/opinion/nrc-final-draft-why-deportation-from-assam-is-a-rat h er-
impossible-idea-1827001.ht ml>
32 SubirBhaumik, “NRC ‘Internal Affair’ of India: Bangladesh High Commissioner”, Northeast Now (2018),

available at: <https://nenow.in/north-east-news/nrc-internal-affair-india-bangladesh-high-commissioner.html>


33 Supra note 1
34 Supra note 6
35 Supra note 1

47
the Government to construct their first detention center, which has the capability of housing
3000 persons. These declared “foreigners” have been torn apart from their families and made
to suffer in legal limbo since several years. 36

If we consider the long painful human history of detention centers, the future for the declared
“foreigners” in Assam looks bleak. Additionally, these detention centers are not open to
inspection by human rights workers, due to which the conditions of their inmates has never
come to public attention.37 However, in 2017 a group of non-official human right workers and
researchers had been allowed by the National Human Rights Commiss ion to visit these camps
as special monitors. The accounts presented by them support the conventional assumptions and
notions held about such detention centers. Their accounts speaks of detainees, who have been
deemed foreigners and put in these centers, to have had no legal representation and hearings,
resulting in their proceedings being carried out ex-parte.38 No proper legal hearing, instances
of jail like treatment, brutal conditions and stories of families being torn apart by such
questionable proceedings are many. If the NRC regime is heading towards a future wherein
such centers are erected to house people declared as foreigners, India will be exposed to
immense international pressure from the United Nations and other such human rights
organizations for their gross violations of globally recognized human rights norms. Much like
the previous humanitarian crisis the world has seen, i.e. the 2015 Rohingya crisis wherein
millions of refugees were stranded with no country willing to offer them shelter 39 , a catastrophe
of a much larger magnitude can be seen heading India’s way. The international community has
repeatedly taken a firm stance when it comes to human rights violations of this magnitude. This
fact alone must be thoroughly pondered upon by India before taking any hasty decisions in this
regard.

Another crucial factor is that the Supreme Court of India, the Apex body of justice in the
country, is supervising the procedure of updating NRC. If a refugee crisis or instances of human
rights violations in these detention camps arise and enter into the international sphere, the

36 Supra note 6
37 Harsh Mander, “The Dark Side of Humanity and Legality: A Glimpse Inside Assam’s Detention Centres For
Foreigners”, Scroll.in (2018), available at:
<https://scroll.in/article/883936/assam-citizens-register-detention-centres-for-foreigners-offer-a-glimpse-of-
the-looming-tragedy>
38 Ibid
39 “Rohingya Refugee Crisis”, OCHA, United Nations Office for Coordination of the Humanitarian Affairs,

available at: <https://www.unocha.org/rohingya-refugee-crisis>

48
sanctity and working of our apex justice mechanism could be called into question as well as to
how they could allow such blatant violations under their supervision?

Finally, as already discussed above, the amendment to the Citizenship Act that added Section
6A to the Act in 1985 has been challenged before the Supreme Court of India on the ground
that it contrasts Article 6 of the Constitution. The Supreme Court directed this issue to be
referred to a larger five-judge constitutional bench, which is still pending for final
determination before the Apex Court.40 This fact begs the question as to how the Supreme
Court has allowed the Centre to carry out and undertake an unprecedented procedure like the
NRC, under its direct supervision, under a law which as of now is still under dispute for being
constitutionally invalid? If the larger bench finds Section 6A of the Citizenship Act to be in
violation of the constitutional provisions, then the whole procedure of NRC will be rendered
void and unjustifiable. This paradox of the judicial process, appears to have been completely
overlooked in the current discussions of NRC, but brings forth uncomfortable questions upon
the whole regime.41

V. PART FOUR: CONCLUSION


The opponent of updating the NRC have expressed their discontent from all fronts; be it the
political front of criticizing the ruling party to have done this in order to strengthen their vote
bank, to the legal front which is challenging the constitutional validity of the section 6A of the
Citizenship Act. The politicians of this country have politicized this issue to such an extent the
contentious Citizenship Bill, 2019 has been passed in the Lok Sabha last week, which seeks to
provide Indian citizenship to Hindus, Jains, Christians, Sikhs, Buddhist and Parsis from
Bangladesh, Pakistan and Afghanistan after six years of residence in India instead of twelve
years currently even if they do not possess any documents required. In other words, the Bill
seeks to provide Indian citizenship to any non-Muslim from the above-mentioned countries.42

Several debates by imminent persons all over India, over the issue of NRC, have suggested that
a middle ground be reached regarding the status of “illegal migrants ” in Assam. It has been
opined that these declared “foreigners” must not be subject to deportation or detention centers,
i.e. they must be allowed to peacefully reside in the State of Assam; but at the same time they
must be declared disenfranchised voters. While this might seem like the best option availab le

40 Supra note3
41 Supra note17; Ibid.
42 PTI, “Lok Sabha Passes Contentious Citizenship Bill Amid Protests”, The Wire (2019), available at:

<https://thewire.in/government/ls -passes-citizenship-amendment-bill>

49
at this point in time, the fact that voting rights are an essential part of every individual’s life in
a democratic country cannot be disregarded. Considering the fact that India is a country of
inclusion and acceptance, such a move would be undignified and an embarrassment to this
democracy. The Authors believe that the entire process of updating the NRC must be halted
until the Constitutional bench adjudicates over the legality of section 6A. More than ideal, this
step is a check on the legality of actions carried out by Government and Judicial bodies.

The process of updating the NRC, with the burden of proof being placed on every individ ua l,
is a completely unprecedented event in this history of this country. The consequences to follow
have the ability to disrupt the lives of millions of people. The hysterical aspect to this is that
the highest authorities of law and branches of Government are working hand in gloves to
implement this entire procedure. The stakes of implementing such a large-scale project are vast
because it will serve as a precedent for other States within the country, and also to some extent
other countries within this world, which are suffering from an “illegal migrant” problem.

50
FATAL FLAWS IN THE IMPLEMENTATION OF STANDARD OPERATING
PROCDEURE (SOP) RELATED TO NRC, ASSAM

- Bhaskar Debroy

It is noteworthy, in the ‘Assam Accord : Memorandum of Settlement’ signed by All Assam


Students Union (AASU) & All Assam Gana Sangram Parishad (AAGSP) on one hand and the
Central Govt. & State Government of Assam on the other, on 15 th August, 1985 in presence
of Late Prime Minister of India Sri Rajib Gandhi – there was no mention of updating the
National Register of Citizens (NRC) which was originally compiled in Assam at the time of
Census in 1951. Rather, sub clause (3) of Clause (5) of the Assam Accord envisaged that
foreigners who came to Assam after 1/1/1966 and up to 24/03/1971 shall be detected in
accordance with the provisions of Foreigners Act, 1946 and the Foreigners (Tribunals) Order,
1939. Also, those who came to Assam on or after 25/3/1971 shall be detected and expelled in
accordance with law. As a corollary to that, Citizenship Act, 1955 was amended in the same
year (1985) by inserting Clause 6A which mandated disenfranchisement of people who came
to India during 1/1/1966 to 24/3/171 setting the later as the cutoff date for detection and
deportation of foreigners.

History has it that as the decades old sporadic untoward incidents against a particular
linguistic group assumed the dimension of a full grown Agitation in Assam in 1979, the
Parliament passed The Illegal Migrants (Determination by Tribunals) Act in 1983 with the
object of protecting the ‘minorities’ from harassment , applicable in Assam only, the valid ity
of which was challenged by Sri SarbanandaSonowal of AAGSP in Supreme Court in April,
2000 and eventually that was struck down as ultra vires by the apex Court on 12/7/2005.

Following the Assam Accord, as detection and deportation of foreigners through the existing
process by Tribunals was being viewed as too low, contrary to the expectations of the leaders
of movement, unrest again started mounting up over the period. The students’ union and others
considered the process as inadequate and defeating the very purpose of the Assam Accord.
So, with a view to ensure implementation of its principal aims & objects , after about 20
years again a tripartite meeting had to be held on 5/5/2005 amongst the parties to the Accord,
where different suggestions and proposals were advanced. As a sequel to that, in order to

 The Author is working in voluntary service in individual capacity.

51
accelerate process of detection and deportation of the foreigners in the State of Assam, an
empowered Group of Ministers after rounds of discussion, made certain recommendations in
2008. And accordingly, The Citizenship (Registration of Citizens & issue of National Identity
Cards) Rules, 2003 was amended in 2009 to put necessary legislative framework in place for
updating the NRC by inserting Rule 4A and appending a Schedule, after Rule 18. That
Schedule outlined the Special Provisions for the State of Assam as to the manner of
preparation of NRC. Whereas Rule 4A provided that instead of door-to-door enumeratio n,
application for inclusion in NRC from residents will be invited in Assam, the Schedule
containing the procedure needed supplementary modalities for actual execution. Hence, the
same was drawn up, discussed and finalised by the State of Assam in January, 2013, concurred
by the Central Govt. subsequently and ultimately vetted by the Hon’ble Supreme Court as
indicated in their Order dated 23/8/2013 under W.P.(C) No.274 of 2009 and thereby the
Hon’ble Supreme Court assumed the responsibility of monitoring implementation of the spirit
of Assam Accord and actual job started rolling down to ground level.

As a part of that modalities/operating procedure, the herculean task of compiling and digitiz ing
the original National Register of Citizens, 1951 together with the mammoth Electoral Rolls up
to 24th March , 1971 pertaining to about 3.29 crores of people of Assam for different years was
taken up, which came to be known as Legacy Data. It was done with a view to have a
computerized tool to search & trace names of ancestors of residents , thus obviating the
difficulties of checking through huge piles of printed matters. But inspite of best intentions and
efforts, the process of building up that Legacy Data thus, had its own basic limitations. And
the same is indicated in the official website of NRC,Assam as: ‘The Legacy Data base are old
and even some are found in faded, torn condition, for which 100% digitization of all records
may not have been possible.’ As a result, a sizeable number of poor , landless and barely
literate people were exposed to failed effort to establish their claim for inclusion of their names
in NRC, in so far as producing alternative documents for such poverty stricken residents
remained a far cry.

The bulwark provided for filtering bonafide citizens as per operating procedure is List-A :
Legacy Documents, which included NRC,1951 and Electoral Roll up to 24/3/1971 under serial
no. 1 &2 respectively and specifically excluded Ration Card (sl.15) as a principal document.
Simultaneously, it was also made a sine qua non that all the other twelve listed documents
therein such as Citizenship Certificates, Permanent Residence Certificate, Passport, LIC,
Bank/Post Office record , Court process etc must have been issued on or before 24/3/1971.
52
This stringent condition led people run helter-skelter to search out the names of their
progenitor in Legacy Data alone, as production of any other document pertaining to a period
of 45 years earlier found to be well neigh impossible. Even for the Government servants, who
were appointed after due Police verification etc and rendered service for 40 years or more,
inclusion of name in NRC for them too, remained equally formidable in case their date of
joining was after 24/3/1971.

It deserves notice that even for the vast majority of middle class population, who were born
say after 1958 in this Country itself and are at present may be in government service, even for
them too, the imperfect Legacy Data turned to be like a straw , while sinking in the ocean of
uncertainty. It is for the reason that neither the need for obtaining Birth Certificate was there
prior to 1971, nor their Schools preserved 50 years old records in most cases, envisioning such
an eventuality. For such people who attained majority after March, 1971 and started earning
livelihood thereafter, production of any record as enumerated in List-A from serial no. 3 to 14
as mentioned in the foregoing paragraph turned out to be very limited, as need for obtaining
or having such document hardly arose earlier.

At the implementation level about 40,000 persons were engaged spreading across 2500 NRC
Seva Kendras(NSK) apart from Circle level, District level & State level offices for undertaking
the task of updating the NRC involving about 3.30 crore applicants. The Operating Procedure
provided that the Verification Team(VT) at NSK level consisting of Local Registrar Of
Citizenship Registration(LRCR) & Lot Mondal [a revenue official] shall be responsible for
validating the documents which called for verification of 12 types of List-A and 7 types of
List-B documents for acceptance. But as the Local Officers had limited or no legal exposure,
even getting technically valid documents admitted posed problem. In fact, lack of awareness
about adoption and applicability of Acts& Rules prevalent just prior to Independence as per
Article 372(1) of the Constitution, led to rejection of genuine claims for inclusion. For example,
a Notice issued under The Sylhet Tenancy Act, 1936 (which was subsequently amended also
vide Assam Act No. XXVI of 1961) on 8/4/1964 submitted as a tenancy record in support of
residency in the Karimganj District of Assam (which was a part of Sylhet prior to partitio n)
was not accepted, presumably on the erroneous assumption that the relevant Act has no
applicability in India.

Similarly, a person who was an inmate in a Destitute Home managed by the Govt. prior to 1971
and obtained a Certificate to that effect in 1985 when the NRC process started, it was not

53
accepted on the technical ground that the date of issue is after 24/3/1971. A case in hand
available is that of a female who , despite having such Certificate carried a stigma of ‘D’ voter
too.

As recorded in the Order dated 26/10/2016 of Hon’ble Supreme Court related to NRC, with
a view to verify the authenticity of different documents submitted by residents as per List- A
or List-B , the NRC authority sent a total of 3,05,995 documents to 28 different states of the
Union of India to ascertain their reliability. And in response they received replies only against
8223 documents comprising only 2.69% of total such cases. It seems, in all probability, the
State Governments were not in a position to trace/retrieve the basic records which might have
been as old as 45-50 years or even more. So, if the Govt. machinery be not in a position to trace
out relevant records, it is harsh upon the large number of poor and barely literate citizenry to
ask in 2015 for submission of a document dated 24/3/1971 or earlier. And so long the response
is not received, the status of all such persons hanged in balance. This becomes really a travesty
of justice especially for those whose parents’ name went missing due to reasons indicated at
the beginning, in so far as the ‘Ration Card” – which is the primary evidence of identity for
rural mass has been kept out of the group of principal documents as embodied in List-A.

Side by side, as recorded in the aforesaid Supreme Court Order, a total of 402 documents were
referred to as many as 37 different foreign Countries, against which response was received only
in respect of 19 cases from 3 Countries namely Kuwait (15/15), Singapore (1/15) & South
Africa (3/3). And most interestingly, reference was made to Bangladesh even, whose nationa ls
are in the eye of the storm in Assam. Thus the ripple effect of updating NRC is felt across the
world, making it open for varied interpretations.

Undoubtedly, a Citizenship Certificate issued at any time, by any duly empowered authority
is the concluding evidence of one’s citizenship in India. But in respect of persons who belonged
to other States and settled in Assam, rigid application of SOP rendered rejection of such
certificates on the ground that they were issued after 24/3/1971, as if such document has no
value despite it being valid in rest of India.

Another fall out of SOP that confronted the married women of rural areas, who had no formal
education, is submission of link document as contained in List-B. This arose mainly due to the
prevalent practice of changing surname and use of husband’s name, in lieu of father’s name in
Electoral Rolls. Since as per SOP , one is required to establish relationship with the Legacy
Person (parents or grandparents whose name appeared in NRC-1951 or Electoral Roll up to

54
24/3/1971), it became really difficult for such women to prove as descendant of recorded
parents, especially who were married in early ages.

Though initially certificates issued by Gaon Panchayats were allowed to be submitted as Link
document to establish relationship with the Legacy person, but as Guwahati High Court
declared it invalid, lot of hardships caused to huge number of such married women. However,
with the intervention of Supreme Court the matter was reverted to status quo ante. But during
the interregnum, people suffered due to plethora of cross litigations involving SOP.

The Notice published in News Papers etc at the stage of Claims & Objections in 2018 (i.e, after
publication of Final Draft NRC) contained that Claim can be submitted only by those persons
who applied at the beginning of the exercise which ended on 31 st August, 2015 and left out
for any reason and applications from any new one will not be accepted. Thus the process closed
the door for those genuine ones, who for some reason or other missed the opportunity in 1985.
It is all the more distressing for the reason that the principle ‘whosoever born within the
territory of India, shall automatically become citizen of India’ no longer holds good here.

Since the State Coordinator was given unlimited power for execution of the process and was
debarred from referring or consulting any other State or Central Govt authority, issuance of
supplementary guidelines by him under SOP at times, also led to harassment of people. For
example, subsequent to publication of Final Draft NRC, at the stage of filing claims in 2018,
instruction was issued that Link document (List-B) pertaining to the period after 2015 will not
be acceptable. Here again, intervention of Hon’ble Supreme Court called for and eventua lly
such inequitable guideline was laid to rest.

Thus in order to keep the process in track, during the period of about 5 ½ years, as a matter
of monitoring, guidance & directions, Hon’ble Supreme Court had to pass at least 50 Orders,
almost each time fixing up the next date and recording request to Hon’ble Chief Justice to allow
sitting of the Bench on the appointed date. There were even Chamber Hearings for the purpose
of dealing with delicate issues involved in implementation of the Operating Procedures. While
stern directions were issued to Chief Secretaries of as many as 28 States including to Home ,
Finance & External Affairs Ministries of the Govt of India, even Election Commission was
also not allowed to transfer/replace officials involved in NRC process, for election duty, which
is otherwise treated as inviolable under Representation of Peoples Act, 1951.

55
Lack of clarity again posed a major obstacle at the time of filing Claims by those whose origina l
applications were either rejected or kept in hold. For example, in good many cases, in the
intimations as regards reason for non-inclusion were mentioned as ‘Technical error/QC’.
When inquired if this be the fault on the part of applicant or otherwise, nobody in the NSK
could clarify the actual position. Similarly, in respect of those, whose reasons were mentio ned
as ‘List-A awaited’, indicating non-receipt of confirmation of authenticity of the document
submitted from the issuing authority (for which presumably the name of the concerned person
has been kept ‘on hold’) had to submit their Claim forms afresh, thus subjecting the poor
people to incur further loss too, for no fault of them.

At the time of finalizing the SOP for receiving Claim & Objections, the State Coordinator of
NRC, Assam suggested to Hon’ble Supreme Court that out of 14 principal documents, four
viz. (i) NRC,1951, (ii) Electoral Roll up to 24/3/1971, (iii) Citizenship Certificate & (iv)
Refugee Registration Certificate be excluded for the purpose. And the reasoning furnished by
him through examples in support of his suggestion, in respect of item (i) & (ii) is inter alia, as
under, as quoted in Hon’ble Supreme Court Order dated 1/11/2018 in WP(C) 274 of 2009:

(Example a.) “Legacy Data of one Shri Nilkanta Barman, s/o Gunaram. He has Legacy Data
Codes (LDCs) of three years – 1951, 1966 and 1971. For example, an imposter used the LDC
of 1966 with Legacy Data Code and got caught when the real descendants of Nilkanta Barman
refused to identify him during Family Tree investigation hearings. This imposter can now use
the 1951 LDC of Nilkanta Barman which has not been used by the real descendants. First
problem in catching this misuse will arise as the computer will not be able to identify the other
users of this Legacy Data as the Legacy Data Code will change from 370-4015-3609 (1966
LDC) to 370-0007-4848(1951 LDC). However, this problem can be overcome as thos e
descendants can still be called by the NRC authorities as they were called for the said
imposter’s family tree investigation earlier. However, NOW IT WILL BE POSSIBLE FOR
THE IMPOSTER TO BRIBE THE REAL DESCEDANTS WHO CAN NOW SAY THAT
NILKANTA BARMAN OF 1951 NRC IS A DIFFERENT PERSON. The NRC authorities
will never be able to suspect because names of all the other family members and even
neighbours displayed in 1951 NRC are different. This way without change in name of the
Legacy Person, Legacy Data can be misused.” (Emphasis added)

In the similar other examples as well, the Learned State Coordinator based his arguments for
depriving the 40.07 lakh population from availing the use of such basic records, on possible

56
‘bribing’ alone, which is not expected of a commander of the entire project dealing with a very
sensitive humanitarian issue. The ridiculous notion seems to be like that of a person who for
fear of theft, never purchased any plate or dish and used to eat his meal on bare floor. And
therefore perhaps, Hon’ble Supreme Court initially though concurred with his suggestion, after
a period discarded the same.

In course of implementation of SOP, the most fatal blow inflicted upon the remaining 40.07
lac residents is perhaps disallowing any change in Legacy Person. Originally, it was stipulated
that linkage or legacy could be established through either parents. Thus, in all fairness, it should
have remained open for the person to establish his legacy through his mother, in case his earlier
linkage with father got rejected for any reason whatsoever. But surprisingly, it is found that,
this scope of proving one’s genuine claim was taken away by inserting a new condition in SOP
that the applicant will not be allowed to change legacy person, even though fresh opportunity
given to them to submit Claim purportedly afresh, thus exposing that group of 40.07 lac
inhabitants to peril for all practical purposes of living in Assam.

Whereas even the cruelest penal procedure ensures that let hundred criminals go scot free, but
one righteous person should not be victimized, here in this exercise the prudence practiced is
just the reverse. And as the procedure adopted for implementation of SOP seems to have
morphed into a process of elimination rather than of inclusion , the specter of arrest, detention
camp, deportation or push back loom large over a sizeable number of hapless residents which
needs to be addressed and redressed as a humanitarian issue by all concerned.

57
SOURCE OF REFERENCE:

1) White Paper on foreigner’s issue published by the Home & Political Department,
Government of Assam on 20/10/2012

2) Supreme Court Orders/Judgments related to WP(C) No. 274 of 2009 & WP(C) No. 562
of 2012

3) The Great NRC Mess : What happened in Assam is not ‘India for Indians’ by Samrat

4) Documents gathered during interaction with affected people

58
A CRITICAL ASSESSMENT OF THE HIGHLY DEBATED NATIONAL REGISTER
OF CITIZENS IN ASSAM

- Bidisha Saikia

INTRODUCTION

A massive debate over citizenship and illegal migrants, including in political terms, has broken
out following the publishing of the National Registrar of Citizens draft where it has found out
2.89 crore people eligible while 40.7 lakh names have been left out. History has witnessed
several events like the Assam Agitation, Nellie Massacre etc showcasing the struggle of the
people of Assam against illegal immigration from the neighboring country of Banglades h.
Since under the colonial rule’s ‘Grow more food campaign’ to the changing of demography
due to the influx of immigrants, the same tension arises out from a scenario from the past.

This draft has been a ‘blessing in disguise’ for many people along-with the marginalized
sections who were often suspected and harassed on the pretext of being foreigners. Also it has
thrown out a message to the rest of the world that there exists a legal process against illega l
encroachment in the state of Assam. Though a lot of questions arise on how effective this
measure would be. There are currently state wide protests going on against the Citizens hip
Amendment Bill which are supported by many influential leaders. However, it is to be realized
that this fight is not against the so called ‘Bangladeshis’, but this is against the ‘Illegal’ people
who have migrated from Bangladesh and settled in Assam.

Very often people from other parts of the country remain a bit perplexed at the emotiona l
response of the Assamese people to the question of identity and demographic change. In-order
to understand and appreciate as to why many in Assam see the National Registrar of Citizens
as the lifeline of the Assamese people, there is need to revisit some of the major events from
1920 to 1950 that centered around immigration, land and identity- moments which helped
shape Assam’s post-Independence history. During the 1951 Census of India, national citize n
registrar was created that contained the details of every person by village. These registers
covered every person enumerated during the Census of 1951 and were kept in the offices of
the Deputy Commissioners and sub-divisional officers as per the Centre’s instructions issued
in 1951.1

 The Author is a Research Scholar at Tata Institute of Social Sciences, Guwahati


1 :http://thewire.in/history/history-nrc-assam(accessed on 24th January, 2019)

59
HISTORICAL DEVELOPMENT OF NRC

Since, British Rule, indigenous people were given a number of safeguards so that they do not
lose control over their land. The British created a “Line System”2 which restricted the
movement of immigrants into indigenous areas, also protective legislations like the Bengal
Frontier Regulation Act among others were passed3 . Similarly, post-independence, the
Constitution also came up with the Sixth Schedule giving enough protection to the hill-tr ibes
of Assam. However, these measures failed to ensure safeguards to the indigenous people living
in the plains of Brahmaputra and Barak Valley. While, in Barak Valley, the native Meitei,
Bishnupriya, Pangal, Dimasa and Kuki-Chins were absolutely outnumbered, in Brahmaputra
Valley, the gradual process of outnumbering began. In a matter of decades, immigrants from
erstwhile East Bengal (later East Pakistan and now Bangladesh) became majority in several
districts of Lower and Central Assam4 .

Since Independence till 1971, when Bangladesh was created, Assam witnessed large-scale
migration from East Pakistan that became Bangladesh after the war. Soon after the war on
March 19, 1972, a treaty for friendship, co-operation and peace was signed between India and
Bangladesh. The migration of people from Bangladesh into Assam continued. This brought the
regular influx of immigrants to the notice of the then Prime Minister post which the All Assam
Students Union submitted a memorandum to Indira Gandhi in 1980 seeking the “urgent
attention” to the matter. Subsequently, Parliament enacted the Illegal Migrants (Determina tio n
by Tribunal) Act, 1983. This Act, made applicable only to the state of Assam, was expected to
identify and deport illegal migrants in the state. Outcomes were that people were not satisfied
with the government’s measure and a massive state level student agitation started, spearheaded
by the All Assam Gana Sangram Parishad (AAGSP). This movement resulted in the ‘Assam
Accord’ signed on August 15, 1985 between All Assam Students Union (AASU), AAGSP and
the central and the state governments. It was a result of a six-year long agitation (1979-1985)
by the people of Assam led by Student leaders against illegal immigration. Cause of the
agitation was that in 1978, the legislator of Mangoldoi constituency died and in 1979 a by-
election was held. In the by-election there was an abrupt increase of 75,000 new voters in one
small constituency of less than 150,000 voters. Although, the protests were non-violent, police
firing killed over 855 people, of which many were students. Finally, the Government came into

2 BodhiSattwa Kar, The Immigration Issue, Line System & Legislative Politics in Colonial Assam (1927-1939):
AHistorical Study, IOSR Journal of Humanities and Social Science, Vol. 11, Issue 4, 2013.
3 Ibid

60
terms with the agitators and Assam Accord was adopted; in which it was agreed that illega l
immigrants would be detected, deleted from electoral rolls and deported. It is from this Assam
Accord under which the present updation of NRC finds its basis.

DISCREPANCIES IN THE NRC PROCESS

The NRC updation process has got a mixed response from people across all sections of the
society. While, one group is concerned about the future of those whose names have not
appeared in the list; another group rejoiced the detection of foreigners, after years of struggle.
However, the main issue which should concern the people are the discrepancies and flaws in
the NRC process. At this point, one must realise that an instrument such as NRC, which was
meant to identify foreigners and deport them, if flawed, may turn it in favour of them.

The final draft NRC has a large number of discrepancies and infirmities. The same was brought
before the notice of the Registrar General of India and the State Coordinator for NRC (Assam)
through a representation. In a summarised manner, the discrepancies can be put as-

First, the number of people excluded from the list is far less than those that were reported by
the Government at various times. On 10th April, 1992, the then Chief Minister of Assam Shri
Hiteswar Saikia had given a statement in the Assembly that there were 33 lakh infiltrators from
Bangladesh in Assam, which was retracted after a few days. On 14th July, 2004, Sriprakash
Jaiswal, Union Minister of State for Home made a statement in Parliament that as on 31st
December 2001 there are 50 lakh Bangladeshi infiltrators in Assam. In 2017, the numbers given
by Shri Kiren Rijiju, Union Minister of State for Home is a staggering figure of 80 lakh. But
the NRC draft has only excluded 40 lakh people, which is half the estimate given by the
Government. This shortfall is extremely significant and it is essential that reasons for such
shortfall needs investigation. It has been said in some quarters that fewer persons applied and
hence the shortfall. This however is erroneous as according to 2011 census, the total population
of Assam was 3.11 crores. While, NRC official figures have shown that 3.29 crores applicants
applied in 2015; which is approximately 6% more than the census figures.

Second, most of the border and migrant-dominated districts, which had witnessed a decadal
growth between 21% and 24% for the decades between 1991-2001 to 2001-2011 respectively,
against a state average of increase by 18.19% and 16.93%, have given figures of exclusio n
which are far below the state average with Dhubri at 8.25%, Karimganj at 8.17% and South

61
Salmara at 6.79%.The exclusions in NRC are totally contrary to this unnatural growth of
population in these districts.

The Table below clearly brings out the discrepancy: -

Sr. District Percentage Decadal population growth


No of
applicant 1991-2001 2001-
excluded 2011
from NRC

Assam 12.15% 18.19% 16.93%

1 Dhubri 8.25% 22.97% 24.40%

2 Goalpara 11.82% 23.03% 22.74%

3 Barpeta 13.69% 19.62% 21.40%

4 Morigaon 14.67% 21.35% 23.39%

5 Nagoan 15.08% 22.6% 22.09%

6 Karimganj 8.17% 21.87% 20.74%

Another surprising district is Nalbari where percentage of exclusion is 4.97%, equivalent to


that of Jorhat at 4.58%. But the decadal growth of population of Nalbari, particularly in the
period 1971-1991 was 75.78% and Jorhat was 33.10% as against a state average of 53.26% for
the same period, though figures for 1991 till 2011 periods are slightly below the state average.
However, the percentage of exclusion in respect of Nalbari is disproportionately low
considering that it has an increase of more than 40% above the state average during 1971-1991.

It is also important to note here that most of the reports and information regarding discrepancies
and infirmities are particularly from border districts and migrant dominated areas in other
districts. The primary flaw, which led to such low exclusion from these areas, appears to have
been on the ground verification process, both under Rule 2(3) and 3(4) of the Schedule to the
2003 Rules under the Citizenship Act, 1955, persons included in the list even in the absence of
the exhaustive list of List ‘A’ & List ‘B’ documents and merely on the oral statements of three
neighbours, even during the family mismatch hearings. The biggest and most glaring instance

62
of field verification is that of ManowaraBewa case 5 of declared foreigner and in detention camp
travelled all the way to the Hon’ble Supreme Court on the issue of admissibility of Gaon
Panchayat Certificate and decided so by the Hon’ble Court on 05th December 2017. Her case
as declared foreigner should not have proceeded at all. However, not only was an applicatio n
entertained, the combined verification report marks her positive in satisfying all criteria in
terms of List-‘A’ & List – ‘B’ documents and interestingly there is a finding of a photo ID
match, part of the ground verification report which matches the photograph with that of the
applicant at site and that too when ManowaraBewa is in detention camp for the last 4 years!

Third, large number of reports of inclusion of declared foreigners have also come up from
different parts of Assam. The Deputy Commissioner of Morigaon has publicly stated that 39
families (about 200 persons) to their knowledge, so far, have been included in the draft. In
every district there are reports of such inclusion and that too in significant numbers, Dhubri
reportedly thousands of Declared Foreigners and including their families have been included.
Apart from the declared foreigners, even people whose cases are pending before the
Foreigner’s Tribunal and the D-Voters have also found their names in the draft.6 An instance
of this is the case of NaseruddinSeikh, a Declared Foreigner (DF) included in the draft list with
two other family members. The surprising fact is that Naseruddin’s application passed all
checks of List-A, List -B documents, Family Tree matching, Field Verification and multip le
other checks even though he did not and could not have had the documents required in the basic
list.7

Fourth, one very important fact and which was overlooked and not factored in during the whole
process is that the exercise of segregating citizens and non-citizens is being undertaken after
47 years of the cut-off date of 25th March 1971. During this period a large number of foreigne rs
have found their way into responsible positions in government and politics. Even those entering
Assam prior to the cut-off date, those technically citizens nevertheless their sympathy and
empathy would be with their brethren from Bangladesh. It is also a fact that a number of persons
employed in the NRC process have been found to be declared foreigner, the case of Khairul
Islam, School Teacher from Morigaon, declared foreigner by the Foreigners Tribunal by
judgment dated 20th February, 2016 and upheld by the High Court on 15th May, 2018, but

5 ManowaraBewa v. Union of India, WP(C) No. 2634 of 2016


6 Press Release by PrabajanVirodhi Mancha
7 Ibid

63
who continued to be part of the NRC exercise.8 Similarly, a number of The Field Level Officers
(FLOs) under NRC do not find their names in the NRC. In Garukhuti NSK of Sipajhar in
Darrang District, out of 10 FLOs 7 are excluded. It surely raises doubts about their citizens hip.
It is sufficed to say that the inclusion of such prohibited category, particularly after such an
elaborate documentation and verification process requires serious investigation as to the nature
and manner of gaps and discrepancies.

Besides these discrepancies, there has been a number of fundamental administrative flaws in
the process as well. The field reports are not digitized. As a result, beyond the Circleat the
District and State level there is/was no material to undertake quality check. The quality of
personnel employed for field verification left a lot to be desired.Field Level Officers (FLO's)
employed for Co-ordination and assistance between applicant and officials were the Booth
Level Officer's (BLO's) employed during elections, drawn from AnganwaadiWorkers, local
persons. Managing an election, to tally voter's ID and identity, write voting slips etc. is one
thing and to deal with citizenship issues in the format prescribed is another thing. Quality of
other personnel employed from amongst college and school teachers and employees of
departments was also poor, as they were pushed into the job with very little knowledge or
training and which has showed up in the poor quality of type two verifications for family tree.
Also, poor quality of supervision of officers along with possible fraud by data entry operators
has resulted in a large number of rejections at LRCR level finding their way into the NRC
Draft. There are such instances from across Assam, like the case of family who filed their
application and left the State, were included in the draft without any verification.

It is obvious from the above that there are serious discrepancies and flaws at various stages,
particularly at the field verification stage which has resulted in a large number of foreigne rs
being included in the draft NRC List. Such inclusions have been on account of serious lapses
at the institutional level, particularly in the border and migrant-dominated districts of Dhubri,
Goalpara, Barpeta, Karimganj, Nagaon, Morigoan and Darrang. The instances provided above
are only a few cases acquired through personal efforts, but it is doubtless that a systematic
inquiry at the official level will unearth many more of such facts.

It is not possible to resolve the flaws and lapses through the public claims and objection process
as provided under the NRC, largely because migrant/ foreigners live in concentrated zones not

8 https://timesofindia.indiatimes.com/city/guwahati/nrc-staffs-foreigner-status-sparks-

controversy/articleshow/65372137.cms (accessed on 23rd January, 2019)

64
with the general population and it is impossible for any individual to venture into their areas,
even the police fear going into such areas. It is obvious that a re-verification in border districts
and migrant dominated areas is essential but as a first step there should be an investigation and
documentation of the procedural and substantive aspects of the exercise, which will then mak e
the re-verification exercise fool proof.

POSITIVE SIDE OF THE NRC PROCESS

Albeit, all the flaws, discrepancies and several rumours spread throughout the national media;
it is a positive sign that the state has been totally free of any violent incidents since the
publication of the NRC. One major reason for this state of calm is that an overwhelming large
section of the pre-1971 people who have been long considered as illegal migrants or
‘Bangladeshis’ have made it to the NRC. This has given them a sense of security which they
had lacked all these years. The involvement of the Supreme Court seems to have lent a sort of
sanctity to the entire process and initial apprehensions among linguistic and religious minorities
after the first draft was published in January 2017; seem to have been largely dispelled after
the figures of the final draft were made public.

CONCLUSION

It is true that the large numbers of the indigenous people did not even apply for inclusion in the
NRC, many thinking that this was an exercise to detect illegal migrants or foreign nationa ls.
Once the Standard Operating Procedures submitted to the Supreme Court by the Centre are
accepted and the court takes into consideration the views of all the stakeholders that it has
named- which include minority linguistic and religious organisations, apart from bodies
representing the majority Assamese ethnic organisations- the whole picture will become
somewhat clear. Till then, apprehensions and fears are certain to be there. Nonetheless, till all
this final draft need not be seen as stateless or shorn of citizenship.

With the speculation regarding the religious and linguistic break-up of those that have been left
out continues, the Assamese ethnic organisations seem to have realised that although NRC ma y
have highlighted the issue of illegal migration for the rest of the country, yet it is likely to be
of little help for the indigenes to secure their land rights which have been severely
compromised. Hence, the focus is gradually shifting from the NRC to the issue of constitutio na l
safeguards for the Assamese people as stated in Clause 6 of the Assam Accord. Demands are
now surfacing for the stringent measures, including eviction, to protect indigenous land and
the tribal belts and blocks, in line with the recommendations of the Hari Shankar Brahma

65
Committee Report on the status of land held by the indigenous people. There is reference to
measures that have been adopted towards safeguarding land and resources of the ethnic people
in some of the north-eastern states bordering Assam. But most of these states are governed by
‘Inner Line Permits’ which severely restricts people from outside these states to settle
permanently in these regions. On the contrary, Assam’s position is quite unenviable because
all these years the question of constitutional safeguards for the Assamese people has been stuck
over the failure to arrive at an accepted definition of who actually is an indigenous Assamese.

66
CONSTITUTIONAL VALIDITY OF CITIZENSHIP (AMENDMENT) BILL 2016
WITH SPECIAL REFERENCE TO ASSAM ACCORD: A REVIEW OF THE
PROCESS OF UPDATING NATIONAL REGISTER OF CITIZENS

- Jayanta Boruah

INTRODUCTION

Assam has been facing a serious predicament due to the inflow of illegal immigrants. This issue
has brought about several social and political instabilities in the State of Assam from time to
time. The Indian citizens residing in India as well as the local Assamese people had suffered
devastating consequences and witnessed serious revolutions due to the said issue after Indian
independence. The local Assamese community has been facing a serious threat to their identity
since before Independence of India and is still facing the same threat even after India got
freedom in 1947. It seems that even after India attained freedom, the people of Assam are not
free from the threat of losing their identity, culture and hold over their own resources in their
own home land. The greatest of the revolution that was seen due to this frustration amongst the
Assamese people, after Indian Independence, was during 1979-85. This Revolution was termed
as Assam Agitation which witnessed one of the massive massacres in modern Indian history,
where a mob of local Assamese people killed around 2,191 suspected illegal immigrants which
mostly included children and women on 18 February, 1983, this incident was termed as Nellie
massacre. While on the other hand, 855 local people became martyrs sacrificing their lives for
protecting the identity of Assamese community.1 This Agitation was finally concluded by
signing of the Assam Accord between the members of All Assam Students Union (AASU) and
Asom Gana Parishad (AGP) on one side and the Central Government of India on the other side,
which fixed a separate date for determination of Illegal Immigrants in the State of Assam as
compared to the other States of India. Accordingly Section 6A of the Citizenship Act 1955 was
added.

The situation at present again started causing serious tensions amongst the Assamese people
due to the new Amendment to the Citizenship Act proposed by the current NDA Governme nt,
at the time when the process of updating the National Register of Citizens is going on in Assam.
This Citizenship (Amendment) Bill of 2016 is likely to alter the provisions of Assam Accord
that came into existence after such a devastating Assam Agitation and for this reason Assam is

 The Author is
a Research Scholar at National Law University and Judicial Academy, Assam
‘Nellie Massacre- How Xenopjolia, Politics General Assam’s Genocide’ The Quint.com
1 ShorboriPurkayastha,

(30 March 2018) www.thequint.com/explains/nellie-massacre-expl ained accessed 24 January 2019.

67
witnessing a stage of instability in the law and order situation. In order to understand the entire
picture of Citizenship Rights and the related issue of illegal immigrants that is very
controversial and complex due to Assam’s unique nature of social and political existence, we
will have to analyze the entire legal and political background in this matter, which may indeed
become a very wide topic for this single paper but still a brief review is needed to bring about
some insights into the issue that is not only going to influence Assam but may bring about
serious consequences to the entire Indian territory.

CAUSES BEHIND INCREASE OF ILLEGAL IMMIGRANTS IN ASSAM

Assam shares a majority of her international border with Bangladesh, and for this reason the
problem of illegal immigrants in Assam is mostly associated with Bangladesh nationals. The
length of India-Bangladesh border is about 4,096 km, most of which is not properly fenced yet.
However, we know that there must be generally two factors, via- Pull factors and Push factors
which lead to the process of migration from one State to an another State. Here, good
agricultural condition and job opportunities in Assam work as the pull factor while poor
livelihood, constant flood, climate change orienteddisasters, etc. in Bangladesh work as push
factors. Further, the problem of illegal immigrants from Bangladesh in Assam is also due to
the vote bank policy adopted by the political groups within the State and also within India.
Furthermore, the Assamese people who has a strong lineage with Bengali speaking Muslim
population since before the partition of the State are alleged of exercising strong lobby for
bringing Bangladeshi people illegally within the State. 2

STATISTICAL INTERPRETATION OF THE PROBLEMS OF ILLEGAL


IMMIGRANTS IN ASSAM

This section will include few statistical analyses about the facts relating to the issue of Illega l
immigrants that will help us in understanding the magnitude of the problem.

2J Das and D Talukdar, ‘Socio-Economic and Political Consequences of Illegal Migrant into Assam from
Bangladesh’ Journal of Tourism & Hospitality (2016)
www.omicsonline.org/pdfdownl oad.php? downl oad=open-access/socioeconomic-and-political-
consequences-of-illegal-migration-into-assam-from-bangladesh-2167-0269-1000202.pdf&ai d=69610
accessed 21 January 2019.

68
40

35
Assam (in%)
30
India (in%)
25

20

15

10

0
1901-11 1911-21 1921-31 1931-41 1941-51 1951-61 1961-71 1971-81 1981-91 1991-01 2001-11

Period Assam (in %) India (in %)

1901-11 11 5.8

1911-21 20.5 0.3

1921-31 19.9 11

1931-41 20.4 14.2

1941-51 19.9 13.3

1951-61 35 21.6

1961-71 35 24.8

1971-81 23.3 24.7

1981-91 23.6 23.5

1991-01 18.8 21.3

2001-11 16.93 17.6

Table 1: Decadal Population Growth Rate in Assam Compared to In India. 3

3 CMF, basic statistics relating to Indian Economy.

69
25

20

15
Difference in Population Growth
Rate between Assam and India
10
Estimated Migrants

-5

Period Difference in Population Growth Rate Estimated Migrants


between Assam and India

1901-11 11.26 0.37

1911-21 20.78 0.8

1921-31 8.91 0.41

1931-41 6.17 0.34

1941-51 6.62 0.44

1951-61 13.34 1.07

1961-71 10.15 1.1

1971-91 -1.13 -0.17

1991-01 -2.49 -0.56

Table 2: Difference of Population Growth in India and Assam along with Estimated Migrants 4

4 Hiranya K Nath and Suresh K Nath, ‘Illegal Migrants in Assam: Magnitude, Causes and Economic Challenges’
pdf. http://ssm.com/abstract=1750383 accessed 24 January 2019.

70
1200000

1000000

800000
Estimated Illegal Foreign
Immigrants
600000 Estimated Legal Foreign
Immigrants
Interstate Immigrants
400000

200000

0
1951-61 1961-71 1971-91

Period Interstate Estimated Legal Estimated Illegal Foreign


Immigrants Foreign Immigrants Immigrants

1951-61 260636 314183 493027

1961-71 340476 338015 165446

1971-91 290635 40803 646641

Table 3: Number of Interstate and Both Legal and Illegal Foreign Immigrants in India5

2001
1991
1971
1961 Assam

1951 India

1931
1911

0 5 10 15 20 25 30 35

5 Ibid.

71
Period India Assam

1911 22.39 16.23

1931 23.49 22.78

1951 9.91 24.68

1961 10.71 25.3

1971 11.21 24.56

1991 12.12 28.43

2001 13.42 30.91

Table 4: Muslim Population Growth in Percentage in India and Assam6

OBSERVATION:

From Table 1 the increase in population growth in Assam indicates that there has been
migration into the state and this gets absolutely clear from Table 2 where the difference in the
growth rate of population between India and Assam and the estimated migration is shown
which further clarifies the fact that the problem of migration has been significant in Assam.
However, Table 3 points the rate of inflow of illegal foreign migrants into the state which is
again significantly high. Table 4 indicates the growth rate of Muslim population in both India
and Assam where the rate is immensely high in Assam compared to India. All these facts are
enough to prove that Assam is facing a serious threat of illegal immigration of foreigners into
the state.

CONSEQUENCES

This Illegal Immigration into Assam has led to serious consequences across the state. The local
people are facing identity crisis in the state as regards their culture and traditions. Further the
political control has weakened. The law and order situation has been challenged from time to
time, the greatest instance being the Bodo-Muslim conflict in 2012 which led to the killing of
around 77 people and displacement of thousands of local people residing in the disputed area. 7
There has been a significant decline in the land area under forests from 39% in 1951-52 to 30%
now. The resources of the state are getting scarce. The number of illegal voters is increasing

6Census Report of India of Various Years.


7 FP Staff, ‘Assam Violence Key Facts about the Bodo -Muslim Conflict’ Firstpost (04 May 2014)
www.firstpost.com/india/ assam-violence -5-key-facts-about-the-bodo-muslim-conflict-1507865.html
accessed 24 January 2019.

72
and similarly there are many other such consequences that are hampering the growth of the
State’s development. But most importantly, this issue is challenging the integrity of the nation
and is also increasing the crime rate in the country, encouraging several terrorist activities
across the border.8

THE LEGAL AND POLITICAL FRAMEWORK REGULATING THE ISSUE OF


CITIZENSHIP IN ASSAM

The issue of citizenship has been a controversial one due to the huge inflow of illega l
immigrants into the state. Moreover, the political setup of the State seems to be influenced very
deeply by this issue. In order to study the impact of this issue in Assam in particular and in
India in general, we will have to look into some of the vital legal and political aspects of this
matter. This section will thereby focus on analyzing the political situation under the influe nce
of which the laws governing the citizenship rights in Assam were framed, the constitutio na l
validity of those laws, their drawbacks and such other information that can be possibly derived.

INDIAN CITIZENSHIP ACT 1955, WHO IS AN ILLEGAL MIGRANT?

Under the Citizenship Act of India an Illegal Migrant is a person not being an Indian staying
in India without a valid passport or any other such documents, or is a person with a passport
but staying here beyond the time limit permitted.

An illegal migrant as under the above provisions will be deprived of Indian Citizenship, if they
were born on or after December 3, 2004. However, the Act provided Indian Citizenship to
persons irrespective of their parent’s nationality, if born on or after January 26, 1950 but before
July 1, 1987. And if anyone takes birth after July 1, 1987 but before December 3, 2004 will be
given Citizenship by birth only if either of the parents were citizen of India. But if born after
December 3, 2004 then Citizenship will be granted only if both the parents are Indian citize ns,
or if either of them is and the other is not an illegal migrant. Further, Citizenship by way of
naturalization will be granted only if a foreigner resides within India for eleven years, if such
foreigner is not an illegal migrant. Furthermore, Citizenship by registration will be granted to
a foreigner who is not an illegal migrant on making of an application to the Central Governme nt
of India, and the Central Government will decide upon such applications. In addition to above
Citizenship by descent will be granted to a person born outside the territory of India on or after
December 3, 2004, to an Indian citizen, if such person does not possess a valid passport of any

8 Supra n 2.

73
other country or is registered at an Indian Consulate within 1 year from the time of birth of
such person or on the expiry of the said time, on the permission of the Central Government. 9

ILLEGAL MIGRANTS (DETERMINATION BY TRIBUNAL) ACT (IMDT) ACT 1983

This Act was enacted by the Indian Government only for the State of Assam after witness ing
the harassment suffered by the Bengali speaking Muslim minority groups due to Assam
Agitation. This Act provided for detection of Illegal Bangladeshi Migrants in Assam and
deporting them, while for the rest of India the same was to be done as per the provisions under
the Foreigners Act 1946. This Act defended the Bangladeshi Immigrants by making the burden
of proving them as illegal upon the State though a Tribunal set under the Act while the same
burden was vested upon the alleged illegal immigrants to prove themselves as citizens of India.
This Act was thereby challenged before the Supreme Court in the case of Sarbananda Sanowal
v Union of India and accordingly the Court declared it as unconstitutional and struck it dow n
in 2005.

ASSAM ACCORD

The Assam Agitation Movement after witnessing a serious devastating conflict for almost 6
years came to a conclusion on signing of the Assam Accord on 15 th August, 1985. The terms
and conditions of the treaty was set by the All Assam Students Union after several negotiatio ns
with the Central Government under the leadership of the then Prime Minister of India, Rajiv
Gandhi. Later, a regional political party was formed by the local people who went on forming
the Government of Assam under the banner of AxomGana Parishad. This Accord provided for
recognizing all foreigners who entered Assam between 1951-61 as Indian citizens with full
voting rights, while those who entered after 1951 but before 1971 will be granted citizens hip
but with no voting rights which will be allowed only after 10 years and at last this Accord set
March 24 of 1971 as the mark for determining illegal migrants and expelling them from the
state.10

SECTION 6A OF CITIZENSHIP ACT 1955

The Citizenship Act of 1955 was amended accordingly after the signing of the Assam Accord
to give effect to the provisions of the said Accord. As per this new Section all person of Indian
origin who came into Assam before 1 st January 1986, including those whose names were there

9Indian Citizenship Act, 1955.


10 ‘Whatis Assam Accord’ The Hans India (17 August 2017) www.thehansindi a.com/ posts/index/ Hans/2015 -
08-17/what-is-assam-accord/170588/amp accessed 24 January 2019.

74
in the Electoral Rolls for the 1967 election to the House of the People and if residing in Assam
since the date of their entering the State will be deemed as Indian citizens from 1 st January
1966. And also those persons who entered Assam after 1 st January 1966 but before 25th March
1971 and if their names were included in any of the Electoral Rolls to any of the
Assembly/Parliamentary elections will have to register themselves with the Register ing
Authority. While all those entering Assam afterwards, will be detected and deported
accordingly.11

CONSTITUTIONAL VALIDITY OF ASSAM ACCORD AND SECTION 6A OF


CITIZENSHIP ACT 1955

The Constitutional validity of both the Assam Accord and Section 6A has been challe nged
before the Supreme Court of India though a petition filed by Assam Sanmilita Mahasangha on
the ground of discrimination since it fixes separate dates for determination of illegal immigra nts
for Assam and India and so it is against the general rule of uniformity. Further, they challenge
the Assam Accord on the ground that AASU being a non registered students organization do
not possess the power for giving effect to a Memorandum of Union with the Central
Government. Upamanyu Hazarika, a Supreme Court Advocate argued that a separate date for
Assam will prove handy for the fate of the local people. He stated that in Byrnyhat, a town in
Meghalaya on the border of Assam, where a Bangladeshi immigrant will have to prove his/her
citizenship prior to 1948 changes to 1971 on crossing the border which is only around 1 km
away, this provision will work as magnet for Bangladeshi migrants into Assam.12

NATIONAL REGISTER OF CITIZENS, NRC

The NRC for updating the names of the genuine Indian citizens in Assam has again been
updated after 1951 NRC under the monitoring of the Supreme Court of India of which the first
Draft was released on 31st December 2017 and the final Draft was released on 30 th July 2018.

Eligibility for been included in NRC

The following persons in Assam were held to be eligible for appearing in the NRC-

a. Persons having their name in the 1951 NRC;

11 ‘Status of Bangladeshi Immigrants’ Press Information Bureau Government of India Ministry of Home Affairs
http://plb.nic.in/newsite/PrintRelease.as p?elid=112915 accessed 24 January 2019.
12 ArunabhSaikia, ‘Who exactly is Assamese? A petition before the Supreme Court may change definition yet

again’ scroll.in (26 April 2017) https://scroll.in/article/835523who-is-assamese-a-new-petition-in-supre me -


court-may-change-the-definati on-yet-again accessed 24 January 2019.

75
b. Persons whose names are there in any of the Electoral Rolls for any elections held
before midnight 24th March 1971;
c. The Descendants of the above;
d. Persons entering Assam after 1st January 1066 but before 25th March 1971, who are
registered under the competent authority for the said purpose and has not been declared
as illegal immigrants by any competent authority;
e. Children of citizens of Assam if their citizenship is beyond reasonable doubt;
f. D-voters can include their names, however their names will appear in the new NRC
only after the Foreigners Tribunal declares them as non foreigners;
g. Persons who can produce any of the documents mentioned in the list of documents to
prove their residence in Assam prior to 24th March 1971;
h. All persons who were residing in any art of India outside Assam before 24th March
1971;
i. All tribal members who are declared as Original Inhabitants of Assam under Clause
3(3) of the Citizenship (Register of Citizens and issue of National Identity Cards) Rules
2003 and
j. All those members who can prove their citizenship beyond reasonable doubt before the
Registering Authority.

PROCESS OF UPDATING NRC

The process of updating NRC included the following steps-

a. Publication of Legacy Data


b. Distribution of Application form and their Receipt
c. Process of Verification
d. Preparing of the Part Draft of the NRC and its publication
e. Verification and hearing of claims and objections filed against the Part Draft and
f. Preparing and publishing the Final Draft of NRC.

AFTERMATH

The final Draft of NRC resulted in declaring 2.89 crore people as valid citizens out of 3.29
crore applicants while more than 40 lakh people were found to be invalid. However, it was
made clear that this is just a Draft while the aggrieved people can file their claims and
objections before the Tribunal from 30 August to 28 September 2018 and the reason for non

76
inclusion of the claimants was decided to be published from 7 August 2018. Home Minister
Rajnath Singh stated the final NRC will be published once all the claims and objections are
heard.

CITIZENSHIP (AMENDMENT) BILL 2016

The present BJP government proposed a Bill in the Parliament for granting Indian citizens hip
to Hindu minority groups from Bangladesh, Pakistan and Afghanistan on humanitarian basis.
Further, it alters the provision of the original Citizenship Act of 1955 whereby a foreigner will
be granted citizenship only after 11 years of stay which has been reduced to only six years of
residence. However, the decision for granting citizenship will be taken by the Government of
India and if any such person violates any law of the land then his/her citizenship may get
cancelled.13

Arguments for and against the Bill; a Review of the Constitutional Validity of the Bill

The Bill has been widely supported by the BJP ruling party both at the Center and at the State
of Assam. The Cabinet Minister for Assam, Himanta Biswasarma clearly stated that it has
always been the intention of the BJP party to give shelter to the minority groups of Hindus,
Sikhs and other such Non-Muslim groups in India. He was of the view that the Muslim people
that are facing humiliation in Pakistan, Bangladesh and Afghanistan can still seek shelters in
other Islamic countries but for the Hindus, India is the only largest Hindu country. While on
the other hand the Assamese people are strictly against this Bill since according to them Assam
will suffer the most because of this Bill. As per AASU, Assam is already flooded with lots of
Bengali Hindu Bangladeshis and this Bill is likely to increase the number at a large scale which
will simultaneously create a great threat to the Assamese culture and language and will thereby
alter the demography of entire Assam once for all. Further, this Bill seems to violate Article 14
of the Constitution of India since it discriminates between Non-Muslims and Muslims for
granting citizenship and thereby it is held to be against the principle of equality. Furthermore,
this Bill challenges the Basic Structure of the Indian Constitution, according to which India is
a secular country, but this Bill appears to have recognized the concept of communa l-
humanitarianism. Even though India is a signatory to the United Nation Convention on Refugee
according to which granting citizenship to Refugees on humanitarian basis is an internatio na l

13 ‘Whatis the Citizenship (Amendment) Bill? India Today (22 October 2018) www.indiatoday.i n/educati o n-
today/gk-current-affairs/story/what-is-citizenshi p-amendment-bill-2016-137201-2018-10-22 accessed 24
January 2019.

77
customary law. But refugees are those people who lose their citizenship involuntarily or by
force while on the other hand illegal migrants are those who migrates to an another country for
economic or other such advantages. The Bill of 2016 is providing citizenship to illegal migrants
while there shall be separate laws and policies to deal with the issue of refugee rather granting
illegal migrant citizenship. Thus, this Bill cannot be defended even on the ground of granting
recognition to the UN Convention on Refugees. 14

CONCLUSION

There can be no doubt about the fact that the citizenship matter in Assam has been under serious
controversy. However, the new NRC has revealed doubts on 40 lakh people whose fate is now
to be decided by political turmoil. The Jurisprudence that governs the International law on
citizenship provides that- no person shall remain stateless; as such the fate of these 40 lakh
people assumes a great importance. Further, the provisions of Assam Accord, which came into
existence after a severe conflict in Assam, has been altered by the newly proposed Citizens hip
Bill of 2016 for which the political situation in Assam at present has again become unstable.
Although, there is a very less chance of getting this Bill passed in the Rajya Sabha due to
absence of majority of the BJP party, while all other major political parties are now at present
holding their stand against this Bill. And even if this get passed in the Rajya Sabha, it is likely
to be turned down by the Supreme Court of India on the ground of this Act being
unconstitutional.

Whatever may be the consequences, if this Bill becomes law, then there will be no meaning at
all for making the NRC. Assam has already provided an extension of time for determinin g
illegal immigrants as compared to the rest of the country; any further extension will make the
State suffer a lot. Although, the work of the NRC should have began much earlier, still now
also the situation can be managed if political inconsistencies are controlled for the sake of the
broader interests of the nation.

14 BasantaNirola, ‘The Real Reason People of Assam are Against the Citizenship (Amendment) Bill 2016’ YKA
www.youthkiawaaz.com/2018/05/all-you-need-to-know-about-the-citizenshi p-amendment-bill-2016/
accessed 24 January 2016.

78
CITIZENSHIP LAWS IN INDIA: FAILURE TO STOP ILLEGAL IMMIGRANTS
FROM BANGLADESH

- Karsin Manocha and Arisha Azhar

INTRODUCTION

The meaning of the word ‘citizenship’ continued to be a matter of discourse among the liberals,
republicans and ethno-nationals.1 The liberal conception of citizenship views the individual as
the bearer of a package of rights, designed to protect her personal liberties. On its face, the
liberal concept of citizenship is the most inclusive and universalistic. 2

Citizenship is a key institution through which competing demands for the membership are
made. It is also a mechanism for determining how prospective diverse groups should be
delimited and what ‘concrete action should result from such solidarity’. 3

Citizenship is an axis in the terms of engagement between individuals, social groups, and the
state. It is made up of a bundle of rights and obligations, which form the basis for attaining a
full membership, the terms of participation and a sense of belonging in the social body. 4

Citizenship is a way nationhood is experienced in practice. 5 In as diverse a social setting as


India, citizenship is a ‘mechanism of incorporation’ for competing membership claims. 6 The
form of incorporation, or citizenship regime, is shaped by the institutional practices and their
underpinning ideological conceptions, which define the paradigm for the allocation of politic a l,
social, economic, cultural and symbolic resources, privileges and duties. 7

When India gained Independence, it was the moment ‘to make Indians’.8 The question of
citizenship became particularly became important at the time of the making of our constitutio n

 The Authors are undergraduate law students at Faculty of Law, Jamia Millia Islamia.
1 Yoav Peled and Gershon Shafir, ‘Being Israeli: The Dynamics of multiple Citizenship’, Cambridge University
Press (March 11, 2002), pg 1-27.
2 Shani, Ornit, “Conceptions of Citizenship in India and the 'Muslim Question.” Modern Asian Studies, vol. 44,

no. 1, 2010, pp. 145–173. JSTOR, JSTOR, www.jstor.org/stable/27764650.


3 H.H. Gerth and C. Wright Mills (eds.), From Max Weber; Essays in Sociology, London: Routledge, 1997, pp.176.
4 Shani, Ornit, “Conceptions of Citizenship in India and the 'Muslim Question.” Modern Asian Studies, vol. 44,

no. 1, 2010, pp. 145–173. JSTOR, JSTOR, www.jstor.org/stable/27764650.


5 Roger Brubaker, ‘Immigration, citizenship and the Nation-state in France and Germany’, University in

Minnesota Press, 1998. P. 132.


6 Gershon Shafir and Yoav Peled,’ Citizenship and Stratification in an Ethnic Democracy’, Ethnic and Racial

Studies Vol. 21, No. 3, May 1998, p. 409.


7 Deborah J. Yashar, Contesting citizenship in Latin America: The Rise of Indigenous Movements and the

Postliberal Challenge, Cambridge University press, Cambridge, 2005, p.47.


8 Kenan Malik, ‘The meaning of race’, (quoted Massimad’Azeli) London: Mavmillan, 1996, p. 138.

79
because the constitution sought to confer certain rights and privileges upon those who were
entitled to Indian Citizenship.9
The constitution, however, did not intend to lay down a permanent or a comprehensive law
relating to citizenship in India.
It only talked about people who would be citizens of India at the date of the commencement of
the constitution and then left the entire clause of citizenship for the further interpretation and
regulation by the parliament.
The parliament then enacted the Citizenship Act, 1955 making much more comprehens ive
provisions for the cancellation of the citizenship subsequent to the commencement of the
constitution.10
After Independence in 1947, The Indian Independence Act of 1947 repealed the Governme nt
of India Act, 1935 which nullified the ban restricting Indian legislature to enact laws having
impact on British nationality and sovereignty. 11
The Constitution of India came into effect on 26 January 1950 but the provisions pertaining to
citizenship came into force on the day the Constitution was adopted, i.e. 29 November 1949
and were applicable to all of India with the exception of the State of Jammu and Kashmir.
The Constitution of India provides for a unique mode of citizenship, i.e., national citizens hip
and no concept of separate state-based citizenship exists alongside.
While citizenship is not defined in the Constitution, Part II of the Constitution, i.e., Articles 5-
11 provides for a framework for citizenship at the time of commencement of the Constitution.
Article 8 details the rights of citizenship of persons who reside outside India but are of Indian
descent who are required to register themselves to become citizens.
Article 9 imposes a limitation on people who have voluntarily become citizens of another State
and bars them from acquiring Indian citizenship.
Article 10 is a provision detailing the power of the parliament as a limitation to the right of
citizenship, rather than a provision that confirms a right.
Article 11 is a significant provision in that it vests in Parliament plenary power to enact
legislation on citizenship and its related aspects. It specifically empowers Parliament to enac t
provisions in relation to the acquisition, loss and other matters related to citizenship without
being constrained by the constitutional provisions and the principles that underlie them.

9 Durga Das Basu, ‘Introduction to the constitution of India’, 22nd Edition, LexisNexis, 2015.
10 Durga Das Basu, ‘Commentary on the Constitution of India’, 7th edition, Vol, A1 pp. 135.
11 A.N. Sinha, Law of Citizenship and Aliens in India,1962, Lucknow: Asia Publishing House.

80
THE CITIZENSHIP ACT OF 1955 AND ITS SIGNIFICANCE

The substantive framework for citizenship was put in place by the Citizenship Act of 1955,
which was enacted by the Parliament in accordance with the powers detailed in Article 11. This
Act was supplemented by the Citizenship Rules of 1956, which were repealed by the Citizens hip
Rules, 2009. As of now, the Act and the Citizenship Rules of 2009 constitute the current legal
regime of citizenship in India.
After the Citizenship Act, 1955, various modes of acquisition of citizenship were prescribed:
Citizenship by birth, Citizenship by descent, Citizenship by registration, Citizenship by
naturalization, citizenship by incorporation of territory.
The Act details modes of acquisition and loss of citizenship as well as other miscellaneo us
matters.
Section 2 provides for definitions.
Sections 3 to 7 deals with various modes as to acquiring of citizenship.
Sections 8 to 10 deals with modes as to loss of citizenship.
Sections 11 to 18 deal with miscellaneous matters of administrative import, offences under the
Act and concept of Commonwealth citizenship being repealed by 2003 Amendment. 12 There
are three schedules which are left attached to the Act.
The First Schedule concerning Commonwealth citizenship has been repealed. 13
The Second Schedule contains the oath of allegiance that potential citizens have to take.
The Third Schedule spells out the requirements for naturalisation.
The Fourth schedule lists out the specific countries whose citizens of Indian origin are eligib le
to apply for overseas citizenship of India.
The 1992 amendment sought to reframe this gendered provision in an egalitarian fashion.14 The
2003 amendment removed the requirement of being a national of another country. 15

ENCROACHMENTS IN ASSAM FROM BANGLADESH

12 Commonwealth citizenship as envisaged by The Citizenship Act, 1950, Sec. 11 meant ‘Every person who is a
citizen of a Commonwealth country specified in the First Schedule shall, by virtue of that citizenship, have the
status of a Commonwealth citizen in India’.
13 Repealed by The Repealing and Amending Act, 1960.
14 ‘Citizenship’. In S. Choudhry, M. Khosla, and P. Mehta (ed.), The Oxford Handbook of the Indian Constitution.

Oxford: OUP.
15 The Citizenship (Amendment) Act, 2003.

81
The geographical location of the State of Assam connects as it is with the rest of India through
a ‘Chicken Neck’, has slowly metamorphosed in to a heaven of encroachers. Swarming, as they
do, from all directions beyond the boundaries of the State and the country, they have a heaven
reserved for them that is safe, secured and luring.
As there is none to question their sudden godly emergence; none to inquire in to their
identity their State of origin, their language, their ancestry and also none to ascertain as to why
and how they cross the barriers of the international borders seemingly guarded by armed
security forces.
Therefore, the immigration and infiltration by the Bangladeshis go on and on forever having
equally dangerous consequences such as a pristine people inhabiting the mystic land called
Assam is slowly, silently and disastrously marching towards an invisible whirlpool of
extinction- in terms of not only their lands or land rights, their very identity.
The State and Central Governments, scared of losing the succour of illegal vote Banks and also
of losing power, succumbs to the lures of the massive illegal vote banks built up over the
decades, in reality, under their own invisible protective wings.
To make the things worse, the indigenous lots, made up different pristine tribes, clans and
ethnic groups, are afflicted with the malady of ease-loving, aversion for hard labour and
dependence on the Bangladeshis.
The cries of citizens of Assam are cries in the wilderness and therefore, invoke no attention of
the powers-that-be. And all this provides a fertile soil for research in to an unexploded myth
that is, as to why the Governments and the people behave the way they do, and further, why
there is none- no intellectuals, no educationists, no administrators or social leaders, much less
politicians, to feel concerned, even if their eclipse of identity in the whirlpool of surging
infiltration from the most fertile human factory of the world, is imminent.
In this dismal situation, the picture for the indigenous people is grim, the sky of their hope is
gloomy and the prospect of their survival is sham or illusory.
Assam- a land unique in its charm to cause exodus of all earthly beings from all directions and
to all places having reserved forests, roadside or riverside reserves, Government waste land or
water bodies or hills or the lands comprised in protected Belts or Blocks or the land assigned
to religious and charitable institutes including the satras, the temples, the Thaans or any other
place of sanctum sanctorum lures all.

ASSAM ACCORD AND SECTION 6A OF CITIZENSHIP AMENDMENT ACT, 1985

82
In 1980, following the discovery of foreigners’ names on electoral rolls, the All Assam
Students’ Union submitted a memorandum to the erstwhile Prime Minister of India, Indira
Gandhi. Agitations against the influx of foreigners had begun as early as in 1974. In light of
the situation where foreign participation was determining the fate of the polity and impacting
the “political, social cultural and economic life of the State”, this memorandum16 was drafted
and submitted. The memo provided context and evidence regarding the issue at hand. It
presented data to demonstrate the massive increase in the population of Assam between 1951-
1971. Till this point, the AASU movement had been non-violent. However, contemporaneo us
with the controversial elections of 1983, where several illegal migrants were included in the
electoral rolls, the peaceful agitations took a turn for the worse. On February 18, 1983, an
indigenous Assamese tribe that was predominantly Hindu attacked the village of Nellie where
a minority of Bangladeshi migrants had settled. These migrants were predominantly Muslim
women and children.17 The official death toll stood over 2000, while unofficial sources
maintained that the actual toll was closer to 10,000. This communal clash irrevocably changed
the character of the Assam agitation and weakened its support base considerably. It is claimed
that the agitation was on hiatus between 1984 to 1985 on account of the Nellie massacre and
the sudden death of Prime Minister Indira Gandhi.

In 1985, however, negotiations resumed between the Central government of India and AASU
with Rajiv Gandhi as the new Prime Minister. These negotiations came to fruition in the form
of the Assam Accord – a political settlement between the AASU, the All Assam Gana Sangram
Parishad (a regional political party), the state government and the central government.

Both the Assam Accord and the resulting Section 6A introduced by the 1985 amendment have
had a far-reaching impact in that they still inform current debates on citizenship. Until the
amendment in 1992 this provision only recognised patrilineal descent.

FUNDAMENTAL RIGHTS VIOLATION IN ASSAM

Section 6A divided “illegal” immigrants (i.e., those whose parents or grandparents were born
in undivided India) who came into Assam from Bangladesh into three groups: The first group

16 All Assam Students’ Union, Memorandum to the Prime Minister of India, 1980, available at
http://www.assam.gov.in/documents/1631171/0/Annexure_9B.pdf?version=1.0&t =1444717499000.
17 See Hundreds die in Assam poll violence, BBC, 1983 can be assessed at:

http://news.bbc.co.uk/onthisday/hi/dates/stories/february/20/newsid_4269000/4269719.st m

83
(came to the state before 1966) was to be regularised. The second group (came to the state
between 1966 and 1971) was to be taken off electoral rolls, and regularised after ten years. The
third group (came to the state after 1971) was to be detected and expelled in accordance with
law.
These illegal migrants have been virtually conferred dual citizenship, as these migrants never
renounced their Bangladesh citizenship as they have not taken any oath of allegiance to the
Constitution.
Due to influx of illegal migrants who are provided with deemed citizenship, the origina l
inhabitants of Assam have been limited to a minority in their own state and has caused
insecurity among them that their political rights have been diluted as they have become a
minority, their political representation has been reduced. The deemed citizens after the period
of 10 years will be included in electoral rolls and could vote and elect their representatives
which would harm the political interests of the minority and therefore, Section 6A violates
Articles 325 and 326 of the Constitution diluting the political rights of the citizens of Assam
The amendment was done on the basis of an artificial classificatio n, bereft of any rationale.
This classification was specially made for Assam, which is nothing but discriminatory. As, in
Meghalaya, if a person is a post-1951 migrant he/she would face deportation. Thus, being in
direct violation of Article 14.
It has been held in Sarbananda Sonowal v. Union Of India 18 that such an influx is “external
aggression” within the meaning of Article 355 of Constitution of India, and that Central
Government has done precious little to stem this tide thereby resulting in violation of Art. 355.
As a result of this huge influx, periodic clashes have been taking place between the citizens of
India and these migrants resulting into loss of life and property, sounding in a violation of
Articles 21 of the Constitution of the Assamese people as a whole as There have been instances
of not only an assault on the life of the citizenry of the State of Assam but there is an assault
on their way of life as well. The culture of an entire people is being eroded in such a way that
they will ultimately be swamped by persons who have no right to continue to live in this
country.
Section 6A is in direct violation of Article 29(1) which gives protection to every section of the
citizens having a distinct language, script or culture by guaranteeing their right to conserve the
same. Article 29(1) is not subjected to any reasonable restrictions.

18 (2005) 5 SCC 665.

84
The right conferred upon the citizens to conserve their language, Script and culture is made
absolute by the Constitution as held by the Supreme Court in Jagdev Singh Sidhanti v. Pratap
Singh Daulta19 that Right to conserve the language of the citizens includes the right to agitate
for the protection of the language. Article 29(1) is not subject to any reasonable restriction like
Article 19(1).
It is to be noticed that Article 29 (1) does not refer to any religion, even though the margina l
note of the article mentions the interests of the minorities. Therefore, all citizens irrespective
of whether they belong to the majority or the minority are alike.

FAILURE TO STOP INFILTRATION FROM BANGLADESH

The disaster the original inhabitants of Assam are confronted with is no better than a mass
suicide by a pristine people-who include not only the government leaders made up the
indigenous people, but all classes of the same people at all levels who may be either corrupt or
callous, hypo crates or self-seekers, intellectuals or scholars and teachers or bureaucrats. The
government of India and State Government of Assam though having a legal power to detect
and deport illegal immigrants in India, they have failed miserably in performing the functio n
of State Security and the Indian Judiciary time and again have intervened and passed orders to
provide some relief to the original inhabitants whose population has turned into minorit y in
their own state.

In SarbanandaSonowal v. Union Of India 20 , the Apex Court has held that the provisions of
the Illegal Migrants (Determination by Tribunals) Act, 1983 and the Illegal Migrants
(Determination by Tribunals) Rules, 1984 are declared to be ultra vires the Constitution of
India and are struck down; the Tribunals constituted under the Act shall cease to function; all
cases pending before the Tribunals shall stand transferred to the Tribunals constituted under
the Foreigners (Tribunals) Order, 1964 and shall be decided in the manner provided in the
Foreigners Act.
The Central Government was directed to constitute sufficient number of Tribunals under the
Foreigners (Tribunals) Order, 1964 to effectively deal with cases of foreigners, who are
illegally residing in Assam.

19 AIR 1965 SC 183.


20 Supra Note 18.

85
A Foreigners (Tribunals for Assam) Order of 2006 was promulgated which was again struck
down being found to be unreasonable and arbitrary and which instead of expeditious ly
discovering illegal migrants and deporting them, again did the opposite by the Supreme Court
in SarbanandaSonowal(II) v. Union Of India 21 .

In Louis De Raedt v. Union of India 22 , The Apex Court has held that the power of the
Government of India to expel foreigners is absolute and unlimited and there is no provisio n in
the Constitution fettering its discretion and the executive government has unrestricted right to
expel a foreigner.

In State of Arunachal Pradesh v. Khudi Ram Chakma 23 , it was held that the fundamenta l
right of a foreigner is confined to Article 21 for life and liberty and does not include the right
to reside and stay in this country, as mentioned in Article 19(1)(e), which is applicable only to
the citizens of the country. After referring to some well-known and authoritative books on
International Law it was observed that the persons who reside in the territories of countries of
which they are not nationals, possess a special status under International Law. States reserve
the right to expel them from their territory and to refuse to grant them certain rights which are
enjoyed by their own nationals like right to vote, hold public office or to engage in politica l
activities. Aliens may be debarred from joining the civil services or certain profession or from
owning some properties and the State may place them under restrictions in the interest of
national security or public order. Nevertheless, once lawfully admitted to a territory, they are
entitled to certain immediate rights necessary to the enjoyment of ordinary private life.

In SarbanandaSonowal v. Union Of India24 , the Hon’ble Supreme Court held that


Bangladeshi nationals who have illegally crossed the border and have trespassed into Assam
or are living in other parts of the country have no legal right of any kind to remain in India and
are liable to be deported.

CONCLUSION

21 (2007) 1 SCC 174.


22 1991 (3) SCC 554.
23 1994 (Supp.) SCC 615.
24 Supra Note 18.

86
The research paper points out to the State and Central Government’s inability to enact proper
laws to deport the illegal immigrants from the country. The challenge of stemming this flow
and repatriating the illegal immigrants back to Bangladesh is indeed daunting. A bundle of
multipronged, well-coordinated strategies pursued under an appropriate legal framework might
be better able to address this problem in a more effective manner.

Like in a recent case of Assam Sanmilita Mahasangha&Ors v. Union Of India &Ors.25 , where
the Hon’ble Supreme Court considered the necessity of issuing appropriate directions to the
Union of India and the State of Assam to ensure that effective steps are taken to prevent illega l
access to the country from Bangladesh; to detect foreigners belonging to the stream of 1.1.1966
to 24.3.1971 so as to give effect to the provisions of Section 6(3) & (4) of the Citizenship Act
and to detect and deport all illegal migrants who have come to the State of Assam afte r
25.3.1971.
The Court exercising the rule making power enshrined under Article 142 of the Constitutio n
of India, passed the following directions:

a) Border fencing, Border Roads and provision for flood lights

The Court ordered various infrastructural requirements to be met to prevent illegal migration:
i. Complete the fencing along the Indo-Bangla Border
ii. Maintain the already completed fencing and Continuous patrolling along borders
iii. Repair the fencing so as to constitute an effective barrier to cross border trafficking
iv. Motorable roads along the international border laid to increase effective patrolling

b) Foreigners Tribunals

The court requested the Chief Justice of the Gauhati High Court to monitor the functioning of
the Tribunals by constituting a Special Bench which will sit at least once every month to
oversee the functioning of the Tribunals and to expedite and to finalise the process of selection
of the Chairperson and Members of the Foreigners Tribunals.

c) Change in Existing Mechanism of Deportation of Declared Illegal Migrants

25 (2015) 3 SCC 1.

87
The court directed the Union of India to enter into necessary discussions with the Governme nt
of Bangladesh to streamline the procedure of deportation and to enforce a bilateral agreement
between that provides for taking back nationals who stay illegally in the other country after due
verification.

d) With regard to Monitoring and updating of National Register of Citizens

The implementation of the aforesaid directions will be monitored by this Court on the expiry
of three months from today. In the event it becomes so necessary, the Court will entrust such
monitoring to be undertaken by an empowered committee which will be constituted by this
Court, if and when required. The Supreme Court has also given orders that national registratio n
of citizenship must be completed in border areas by January 1, 2016. The Registrar of National
Register of Citizens to update the National Register of Citizens with respect to Assam relying
only on the details incorporated in the National Register of Citizens prepared in 1951.

e) International Commitments of India regarding Refugees and Immigrants

In the absence of any specific law dealing with refugees/illegal immigrants, all foreigners in
India are covered by the Foreigners Act, 1946, which simply defines a foreigner as “a person
who is not a citizen of India.” It does not distinguish between refugees and illegal immigra nts,
nor does it define refugees as a specific category needing humanitarian protection. India needs
to enact a national refugee law so that refugees are clearly defined and can be distinguis hed
from illegal immigrants, followed by concerted action to detect Bangladeshi immigra nts,
assign them to separate categories of refugees and illegal migrants, resettle or repatriate them,
and prevent any further influx. India may also consider taking assistance and advisory services
from the UNHCR, the International Organization for Migration (IOM), and other concerned
international agencies with experience in this kind of complex issue.

Therefore, the Central and State Governments may together work upon the directions and
guidelines of Supreme Court of India.
REFERENCES

• Alok Kumar Gupta, and SaraswatiChanda , “India and Bangladesh: Enclaves


88
Dispute”, 2000.
th
• Durga Das Basu, Shorter Constitution of India, 14 Ed. Reprint 2011, Lexis
Butterworths Wadhwa, Nagpur.
• N.G. Jayal, Citizenship and Its Discontents: An Indian History, Harvard Univers ity
Press, 2013.
• Marcus F Franda, Bangladesh, the First Decade (New Delhi: South Asian Publishe rs
Pvt Ltd; Universities Field Staff International, 1982).
• Pranati Datta, “Push-Pull Factors of Undocumented Migration from Bangladesh to
West Bengal: A Perception Study,” The Qualitative Report, Vol. 9, No. 2, June 2004.
• Rizwana Shamshad, Bangladeshi Migrants in India, 2017, Oxford University Press.
• S. Choudhry, M. Khosla, and P. Mehta (ed.), “The Oxford Handbook of the Indian
Constitution”. Oxford University Press, 2016.
• Sanjib Boruah, ‘‘Separatist Militants and Contentious Politics in Assam, India: The
Limits of Counterinsurgency’’, Asian Survey, Vol. 49, No. 6, 2009.
• Stephen Castles, “Migration, and Community Formation under Globalization,”
International Migration Review, Vol. 36, No. 4, Winter 2002.

89
INDIAN CITIZENSHIP LAWS

-Kush Goel

ABSTRACT:

Citizenship law in India is governed by the Citizenship Act, 1955 which particularly deals
with matters relating to the acquisition, determination and termination of Indian citizenship and
The Constitution of India. India is one among few countries whose citizenship law is
incorporated within the constitution itself. Due to inescapable circumstances arose as a result
of the partition of India and Asian country and therefore the freedom of Indian state to either
be a part of the Union or leave it, the citizenship law had to be incorporated within the
constitution itself. “Domicile is different from citizenship. The person might possess one
position and completely different domicile.”

Part II of the Constitution of India (Articles 5-11) particularly deals with the Citizenship of
India. “According to Merriam-Webster Dictionary, a citizen means a person owing allegia nce
to and entitled to the protection of a sovereign state”. Citizenship provides rights such as right
to vote and is also subjected to duties or obligation, such as paying taxes. Article 5 speaks
regarding citizenship of India at the commencement of the Constitution. Article 11 gave
powers to the Parliament of India to regulate the right of citizenship by law. Thus, citizens hip
act was enacted by the Parliament. This act is to provide for the acquisition and termination of
Indian citizenship and the same acts speaks about citizenship of India after the commenceme nt
of the constitution.

Nationality and citizenship are often used interchangeably in general discourse in India. There
is a definite ambiguity regarding these terms, especially in more recent times, when
‘nationality’ and ‘nationalism’ have once again become sites of strife. Few groups of citize ns
have been charged with ‘anti-national’ sentiments, even as their citizenship is seemingly
accepted. In Indian citizenship law however at least as courts have interpreted these concepts-
there exists a clear distinction between citizenship and nationality. In a renowned case decided
in the 1960s, the Supreme Court of India held that citizenship is applied only to natural persons
and connotes a legal status that determines civil and political rights within the context of
domestic law. Nationality can be applied to either natural persons or juristic persons and
determines the civic rights of a person in the milieu of international law.

 The Author is an undergraduate student at Himachal Pradesh National Law University, Shimla

90
Therefore, this paper employs itself in two key areas of research. The first attempt is made in
order to analyse “why India’s new citizenship law is so controversial and why some regions
are angrier than others”. The second attempt made in this paper is focusing on “political rhetoric
or constitutional morality” which is given in the theme itself.

Keywords- The Constitution of India, 1950, The Citizenship Act, 1955, Merriam-Webster
Dictionary, Citizenship, Domicile, Descent, Registration, Naturalization.

INTRODUCTION:

The right to nationality is essential to facilitating the actualisation of all other fundame nta l
human rights. In this way International law provides that all persons have the right to a
nationality, State’s still retain the right to determine how nationality is acquired. Citizenship in
India has been deeply marked by colonial continuities and ruptures. It is being transformed by
demographic and political shifts. In recent years, the rise of Hindu majoritarian parties at
regional and national levels has added a further level of complexity to these trends.
NirajaJayal has persuasively argued that the substantive character of Indian citizenship has
modified over time, from ius soli to ius sanguinis. At the time of the commencement of the
Constitution, He argues, the organizing principle was ius soli i.e. on the basis that birth on the
soil of Indiawould confer citizenship rights although this was mixed with other bases. More
recently, however, the organizing principle of Indian citizenship has leaned more towards ius
sanguinis, i.e. based on descent or through the citizenship of parents, and expressly
disfavouring those who are Muslims. People argue that along this shift, there are other changes
afoot, because although there has been a shift towards the privileging of Hinduism in matters
relating to citizenship laws more recently, this movement has not been uniform as Hindu
Tamils from Sri Lanka have not benefited much from this trend. So, religion is not the sole
illustrative issue for the complex trajectory of citizenship laws in India. The terrain of
citizenship laws continues to be a shifting, evolving space that will no doubt see extra change
in the future, in response to agonistic contests between different groups of Indian citizens.

WHY INDIA’S NEW CITIZENSHIP LAW IS SO CONTROVERSIAL?:

Citizens of India’s north-eastern states have been protesting strongly against a proposed new
citizenship system that they claim will destroy their culture in the region. The protests have
been diverse and dramatic-petitions, hunger strikes, effigy-burning, a rebel militant group
threatening to end talks with the Indian state. The basis of their anger is the Citizens hip
Amendment Bill, first tabled in the lower house of the Indian Parliament in 2016. It is set to

91
change the Citizenship Act of 1955, which has formed the basis of India’s citizenship system
since it gained independence from the British Empire in 1947. The amendment seeks to allow
select persecuted minorities from the neighbouring countries of Bangladesh, Pakistan and
Afghanistan citizenship status in India after six years of residency. Other groups must wait 11
years to become naturalised citizens.

In the north-eastern states, the fear is that this amendment would legitimise migration of Hindus
from neighbouring Bangladesh in particular, potentially affecting the demographic make-up of
the region. When the bill’s parliamentary committee began touring the north-east in May,
protests grew steadily larger, stronger and more widespread. As almost 99% of their boundaries
are international borders, the citizens of these states have been quick to point out that they
would be the first victims of the new amendment if it makes it easier for minority immigra nts
to travel across the border, settle in and become full citizens. The complaints are loudest in the
state of Assam, which has waged a four decade struggle against the Indian state to prevent what
some there call unchecked infiltration from neighbouring Bangladesh.

The committee’s decision to visit the north-east and the media coverage of the protests has
framed this as a north-eastern concern, not a national concern. But in reality, the Citizens hip
Amendment Bill will change the character of citize nship not just for this area, but for India as
a whole. When India achieved independence, its citizenship system was established on the
basis of jussoli (birth within a territory), meaning that people were members of the politica l
community regardless of their religion or ethnicity. While mistrust of Muslims has persisted
into present day India, particularly in recent years with growing Hindu right-wing populis m,
the law has so far upheld the secular, non-religious character of the Indian state. The
Citizenship Amendment Bill would fundamentally alter this basic tenet, shifting the basis of
citizenship towards jussanguinis (by right of blood). But, as historians such as Joya Chatte rji
and OrnitShani have documented, there have been many challenges to the principle of
citizenship by birth especially in the period immediately after the partition of India and Pakistan
in 1947.

In contrast to Muslims, Hindus were from the start considered “natural citizens” of India.
Muslim citizens of pre-independence India were ostensibly given a choice between the two
countries, but in practice they were subjected to arbitrary processes to prove their loyalty to the
Indian state. Similar demands were not made of Hindu citizens crossing the border from the
newly-formed Pakistan back into India. Regardless of which states or regions would be most

92
affected by a sizeable influx of migrants, the bill changes the character of Indian citizens hip
and the basis on which it is granted, moving from secular to openly favouring specific groups-
particularly Hindus. It opens the door for the creation of second-class citizenship for non-
Hindus and most of all Muslims- not just in the extra-legal practices of discrimination and
violence that exist in the present scenario, but in the law. Given that India repeatedly fails its
own minorities, perhaps it’s not surprising that it is only prepared to offer refuge and asylum
on the basis of ethnicity, not humanitarian need. It’s no coincidence that this amendment was
introduced by the ruling Bhartiya Janta Party (BJP), led by the prime minister, Narendra
Modi, which has an terrible track record in protecting India’s minorities, whether they are
Muslims, Christians or Dalits. Nor has it shown any inclination to help rehabilitate South Asia’s
largest persecuted minority, the Rohingya.

Still, the bill also leaves out Muslim minorities in Pakistan, such as Shias and Ahmadis. There
is also speculation about whether the bill is a means to appease India’s Hindu diaspora abroad
an important funding base for the ruling party. Even the relatively hard line BJP is not immune
to public resistance. The protests in the north-east prompted India’s government to backtrack
and table discussions to address what it euphemistically referred to as “people’s concerns”. But
by framing the amendment as a regional issue, the government has managed to confine public
opposition to the people of the north-east. Because the region is already marginalised in Indian
politics, the rest of the country is often apathetic about its concerns, which rarely become pan-
Indian ones. Still, that the citizens of the north-east are protesting so vehemently – whatever
their precise grievances- is currently the only sign of dissent. Unless it feels the heat of visib le
and vocal public outrage, the Indian state is likely to continue its slide towards becoming a very
different, less inclusive, and increasingly more unjust country.

THE CONTEMPORARY INDIAN POLITICAL LANDSCAPE:

This paper has so far concentrated on the context of citizenship laws in India from the time of
formal independence in the middle of the twentieth century till the 1980s. During this entire
period, the politics of India was dominated by the Congress party. The Congress was the
leading vehicle for the anti-colonial, nationalist movement, and had also been the sheet anchor
of the drafting process of the Constitution. In the post-independence phase, Congress
governments under Prime Ministers Nehru, Shastri and Indira Gandhi had broadly adopted
modernist and secular forms of governance. This changed from the 1970s onwards under Prime
Minister Indira Gandhi who began to adopt strategic policies to court constituencies among

93
religious minorities such as Muslims, Sikhs and other groups in particular regions and states.
Several commentators expressed alarm at the overt or covert communalization of politics
which, they argued, would invite a backlash from Hindu majoritarian groups which had
remained marginal in the legislative sphere since Independence. In the 1990s, this came to pass
and the Bharatiya Janata Party (BJP) became a significant party representing the interests of
the Hindu majority at the national level. From having a mere 2 seats in the 540 member lower
House of Parliament in 1984, the BJP became the single largest party in general elections held
in 1996, 1998 and 1999, securing more seats than the Congress nationwide. It formed the
government at the Centre in 1996, but governed only for 13 days.

In 1999, the BJP-led coalition government was more successful and lasted for its full five year
term, the first non-Congress government in India to do so. From 2004 to 2014, India was
governed by a Congress-led coalition. In general elections held in 2014, the BJP was returned
to power at the head of a coalition government. What is striking, however, is that Prime
Minister Narendra Modi’s government, although formally a coalition, can govern on its own
as the BJP has a majority in the lower house of Parliament. At the time of writing in mid2017,
the BJP has been remarkably successful in state elections and is in power in 17 out of the 29
states in India. Since 2014, the BJP and Hindu majoritarian policies have clearly been on the
ascendance in Indian politics, a context which frames the policy changes in the sphere of
citizenship that we examine in this section.

RECENT CHANGES IN CITIZENSHIP LAW IN INDIA:

Some broad trends can be noted in successive attempts at amending citizenship laws by BJP
governments (which have been in power in 1999-2004 and 2014-present) and in the case-law
emanating from the Indian judiciary in recent years:

i) A hostile attitude towards ‘illegal migrants’ who, it is argued, have swamped


states neighbouring Bangladesh including Assam and Arunachal Pradesh since the
1960s and must be reined in through changes to citizenship laws. Paradoxically, the
same attitude is not exhibited towards a similar trend in Western India where people
from Pakistan have similarly run afoul of citizenship laws while crossing the border
from Pakistan. As Jayal carefully documents, the difference may be that of religio n.
The ‘illegal migrants’ in East India are largely Muslim while in West India are largely
Hindu.

94
ii) An increasingly open and sympathetic attitude towards claims of citizens hip
advanced by Hindus, Buddhists, Jains, Sikhs and Christians, especially when made
from the South Asian region, on the ground that being religious minorities, they face
persecution in Muslim-majority societies. The same sympathy is not extended to
persecuted groups like Ahmaddiyas and Shias or, for that matter, to Tamils from Sri
Lanka. There is an actively hostile approach to claims advanced by Muslims generally.
iii) An active pursuit of policies aimed at the eventual goal of dual citizenship for
people of Indian origin. Though aimed at the overall origin, these policies seem aimed
at benefiting groups located in particular regions of the world, including North America
and the United Kingdom, which are more affluent and better placed to assist politica l
parties and policies of foreign investment.

These trends are reflected in the body of two recent attempts at amending the Citizenship Act
of 1955, introduced in 2015 and 2016. The Citizenship Bill of 2016 was introduced in the Lok
Sabha and is pending before a Parliamentary committee. The 2016 Bill has been criticised as
being biased against Muslims. One would be negligent but, in characterising this issue purely
as one of religious bias. As mentioned, this Bill is also silent on the Tamil refugees from Sri
Lanka, who are predominantly Hindu and constitute one of the largest refugee groups in India.
Tamil refugees have not only been at the receiving end of the government’s indifference but
have also been subjected to differential treatment. As per the rules of a new fee regime of
citizenship that was implemented in 2016, Hindus from Bangladesh and Pakistan, who were
eligible to apply for Indian citizenship have to pay a nominal fee of Rupees 100.58 Hindus
from Sri Lanka, i.e. Tamil refugees however, are required to pay Rupees 10, 000.59 Prima facie
there seems to be no discernible rationale for this differential treatment. These are but a couple
of illustrations of the government’s attitude towards Tamil refugees. The purpose of these
illustrations of legislative and policy measures that exclude or allegedly discriminate against
the predominantly Tamil refugee population legally residing in India was to complicate the
claim that the shift in citizenship laws in India is shaped by religious and communa l
considerations alone. The story of the sustained neglect of Tamil refugees indicates religio n,
while undoubtedly an important factor, is not the only factor at play.

Beyond this, in the broader political landscape, the issue of nationalism has come to the fore in
recent years. Right wing groups have charged that various groups of people harbour ‘anti-
national’ sentiment. Typically, these charges are levelled at Muslims and other minor ity
groups, but also at members of the Hindu majority who are academics, writers, artists, public
95
intellectuals and anti-superstition activists who do not subscribe to the views of these right
wing ideologues. What is worrying is that very often; these charges of fringe groups have
resulted in state-sponsored charges of sedition and other criminal proceedings. Traditiona l
symbols of nationalism, such as the national flag and the national anthem are being elevated in
their symbolism by both state and non-state actors, and people who object to this trend are
subjected to forms of abuse, from psychological to physical to murder in extreme cases. To
understand these trends, one has to adopt a broader perspective. Laws that seek to prohibit cow
slaughter and secure the banning of beef may seem, at first blush, to be about issues other than
citizenship. However, if we view citizenship as being about deeper issues of identity, includ ing
about what individual citizens can eat, read, think or do, then these laws do implicate aspects
of citizenship. This is equally true about laws which seek to make the ‘Unique Identifica tio n
Document’ or ‘Aadhaar card’ mandatory for all banking and tax transactions and for being able
to use a cell phone. The latter promises to embed in the Indian legal regime, the largest system
of State surveillance ever conceived and will undoubtedly have implications for the enjoyme nt
of broader rights and privileges.

CONCLUSION:

This paper aimed to analyse why India’s new citizenship law is so controversial and why some
regions are angrier than others and political rhetoric or constitutional morality. This also has
sought to provide an overview of the historical circumstances and events that have shaped the
constitutional provisions and legislative landscape relating to citizenship rights in India. These
are some revealing cracks and tensions, which the judiciary is often called upon to resolve. The
Indian judiciary’s track record in playing the role of an umpire has been less stellar on this
issue than on most other constitutional issues. This makes it imperative that other institutio na l
actors step in to prevent a situation where this important constitutional terrain is captured by
particular groups. Constitutional stability requires a balance among competing groups and their
interests and current Indian citizenship laws exhibit a tendency to move towards an extreme
end. When ordinary politics and the courts do not seem able to play a moderating influe nce,
some other actors are required to step in to fill the gap. On this issue that is of vital interest,
civil society groups and academics may have to play that role, at least in the short term. Raising
the profile of these issues, which usually stay below the national radar, is therefore an
imperative.

REFERENCES:

96
# The State Trading Corporation of India Ltd. And Ors. v. The Commercial Tax
Officer, Vishakhapatnam and Ors. (1964 SCR (4) 89)

# High Court of Delhi (2010), “Namgyal Dolkar v. Government of India, Ministr y


OfExternalAffairs”, (http://www.mcrg.ac.in/AddReading/2013/NAMGYAL%20DOL
KAR%20Case.pdf)

# “Tibetan refugees to get Indian passports”, The Times of India, April 18, 2017
(https://www.pressreader.com/india/the- times-of- india- new-delhi-edition/2)

# “Government sets conditions for Tibetans to get passports, says move out of
settlements, forgo benefits”, Hindustan Times, June 26,
2017 (http://www.hindustantimes.com/india- news/govt- riders- for-tibetans-to- get)

#Vijaita Singh, “Centre opens gates wider for Tibetans going abroad”, The Hindu,
February 4, 2018 (http://www.thehindu.com/news/national/centre-opens- gates-wid er-
for-tibet)

# Ko, S. (ed.) 1990, Nationality and International Law in Asian Perspective,


MartinhusNijhoff Publishers

97
D-VOTERS: ABUNDANCE PRECAUTION & ILLEGAL PERSECUTION
- Megha Sood and Anmol Gupta

“Effectiveness in the trending process,

An endeavor to gorge, to chasm,

& ultimately to bridge in the gap”

ABSTRACT
The concept of d-voters comprises, two words “D” & “Voters”. D is the abbreviation given to
dubious which means doubtful.
Voting is the very axiom of every society to nurture the amicability, so as to crochet the social
mold of clover. Every citizen of the nation has evinced to be that caster, who has worked till
the last drop of his sweat to pave the tenor for the development of the nation as far as doable.
This paper brings into the limelight the way, how contemporaneously this NRC helps to
flourish the nation at the height of seven skies along with the comparative study of the
registration process of other nations. Discrimination in every field assists in abbreviating the
number of cases up in the air. Even Constitution of India has guilelessly channelized the head
on process to embrace every illegal feud. For every democratic nation NRC forms the basic
condign of the very existence of every individual irrespective of any discrimination. The
concept of the “D-voters” forms the pedestrian over 3W Principle:-

3W Pri nci ples

Who ca n
When i t is to In wha t
a ccess over
be a ccess? rega rd?
NRC Proces s ?

This paper also throws the light upon how this vaunt web of discrimination has put up the fate
of some of the Indian Nationals is at the verge of selvage, leading to the cunctation of justice
on a whole. The bare bones of legislature have mustered self-moving, self-regulating and self-
starting adequacy in every individual. The illegal persecutions in NRC has ante-up a deep blow
to the efficacy of the kinfolks to fight for a square deal. This paper also reflects such paradigms

 The Authors are students at Lovely Professional University

98
which are the glared matters of the daily headlines. The crescive notch of such inequalities
attained by illegal persecution has ruined the convivial truce of the nation on a whole. Such
risks are always there with the bells on to concoct walloping social repercussions over the
dwellers of the society. Since the time immemorial the supreme law is known to be the giant
hub, containing large number of resources with an endeavor to provide the ample of precautions
in the legal framework for the registration of the citizens of the nation head on, which was
affirmed to place everybody on equal footing. Lastly this paper reveals such illegal persecution
in the implementation of the constitutional & political processes which are impeding the
credibility of the nation, once the plausibility is destroyed the society will become vulnerab le
to the illegal persecution hampering the social consistency of every discrete. So to curb the
edifice of such persecutions, an embankment comprising a legal framework is regarded to be
used as social security tool, which sequentially safeguards the rights and interests of the clan
at large.

Keywords: Abundance precautions & illegal persecutions in NRC, crescive notch of d-voters
in registration process curb the edifice of such inequalities, sequential safeguards of rights and
interests.

INTRODUCTION

“A tool of law never deny,

Rather commanding the government to codify,

For giving the answer to every why,

Men always boards the odd bus, taking the odd way,

But law affords a legal thruway.”

Racial prejudice, anti-Semitism, or hatred of anyone with different beliefs has no place in the
human mind or heart.

-Billy Graham

The terrene avant-garde has involved itself in dealing with many cans of worms. Each member
of our society is today making an endeavor to cope up with the perplexity running right from

99
the problems of the environment ending up to the economic problems. The ways to resolving
or getting the answers, solutions to such difficulties is not so hard to find as it is thought to be.
However there is only one unique problem which our society is undergoing, under the shade
of irons in fire for a very long time. The discrimination on the basis of the race of an individ ua l
be it the man or the women. Bruce Schneider has described that failure modes are very
different. In modern era, equality must be a priority.

One often hears about cases of injustice against minorities in every field, particularly when it
comes to the registration of the citizens. If villainy is being done, there is a preconceived notion
that injustice is being done to those who are weak in numbers in comparison to the upper strata
governing the society as a whole, meaning thereby having the full control over the mechanis m.

It usually never occurs to people that hassle can be done to the creamy layer of the society,
i.e.Blue Blood People.1 But nowadays, there has been several extracts depicting that the illega l
persecutions in NRC has ante-up a deep blow to the efficacy of the kinfolks to fight for a square
deal, because of which it is been phony that that there has been considerable increase of the
pitfalls on the part of the government. The struggle for those who are required to prove their
identity continues even after they are declared to be belonged from their particular niche.

D-Voters are the moiety of the people who are pseudo foreigners, finicky bootleg perching in
the others home land. All their citizenship rights, entitlements & privileges as a Nationalist of
the particular nation are held back unless those aliens pan out themselves to be the Nationalis ts
of that very Nation.

D-VOTERS AS CROOKED GALLING

As the facet of Elections whacks in the autonomous nation like India, no one will abide up to
hark to the thousands who were on spur of the moment called foreigners & are peeled from
voting rights.

Since 1997, whilst recalibrating the lists of voters, the Election Commission had etch the letter
“D” as a suffix to more than 2.3 lakh names, naming the game thereby for those people whose
citizenship is abruptly begird with the question. Such an illegal persecution has come into cruet
to weed out the foreigners from the legitimate citizens in the region that has seen waver of the
migration for over the years. On the other hand, most of the names, which are enlisted in the

1 Agnes Flavia,Law and The Politics of Minority Rights In India, 37 (2001).

100
voters list, are not likely to be the actual citizens. 2 All those who are debarred from their legal
voting rights are actually restrained under the influence of the elite class, who are running the
administrative carts of the nation. So even by the advent of this concept of D-Voters either one
could assume that all those who are declared to be illegal immigrants will be flushed out? Or
one could expect a better life & dignity for those who are the genuine citizens?

REPREHENSIBLE AMENDMENT OF CITIZENSHIP BILL

The root cause of these Abundance precautions & illegal persecutions in NRC lies pretty well
in the coeval form of the Citizenship Amendment Bill 2016, 3 which is unworthy of becoming
an Act, because when any confabulation follows to become an enactment it is a condign which
is to be free from any kind of politics thereby in fugacious of the legislations that has gone
around the barn, pie in the sky of the core democratic ideals of India.

It is to be lug into light that the very end in view of the amendment is to rejuvenate the regnant
Citizenship Act 1955, which cocksure the provision for the acquisition & determination of the
Indian Citizenship for certain Category of illegal migrants. Not only this additionally, this bill
has slackened the citizenship criteria for such immigrants & hitch on the assertive calibers of
persons Of Indian Origin (PIO) & Overseas Citizen of Indian (OCI) together. There are several
loopholes, in this current proposal following are some of them:-

1. The illegal immigrants who are to be granted the benefit of this particular legisla tio n
who are required to qualify for the citizenship only on the basis of the religion.
2. There is desideratum that goes completely against one of the basic tenets of the Indian
Constitution, “Secularism.”
3. Moreover both Overseas Citizens of India & Persons of Indian Origin have been
merged in a haphazard manner, marooning the cleft orifice in the definition of their
positions as citizens.

DEVOIR OF ABUNDANCE PRECAUTION

It is imperious because this flimsy amendment hasn’t materially expanded the rights of both
OCIs & PIOs because there is a need to consider the fact that whether the entire system should
be dispensed with, permitting the dual citizenship. It this argument focuses on the dual

2 TANWEER FAZAL, NATION-STATE AND MINORITY RIGHTS IN INDIA 205-06 (1ST ed. 2014).
3 Ari. L Goddard, Fate of The Citizenship Amendment Bill, Economic Times, Jan. 07, 2019.

101
citizenship, and then it will surely be harnessing the goodwill among the Indian diaspora,
thereby facilitating the considerable increase in4 :-

altruistic
alms of
Volitionsal India.
work
Hunch,
Trade,
Sojorn

Therefore chattels of the citizenship of the country will manifestly impels to the shunning of
the need for the specific registration or providing the work permits, thereby entailing the full
protection against expulsion & simultaneously providing the access to the public employme nt
& decreasing the administrative difficulties. Consequently this amendment has scraped the fate
of the Northeastern states. Moreover this bill has even echoed the 1962 Indo-China war & has
led to the unjust incarceration. It has made an embodiment to the concern of the deepest
prejudices as this amendment law is passed to incarcerate the freshly corded relations hip
between India & China.

Those who are illegally made to fall into the category of D-Voters by the advent of this bill are
prime-facie placed at inferiority and on the other hand get the oppression from the society as
compared to those who are decaled to be the genuine citizens by this amendment. 5 There is
always bigotry against those who are suddenly declared to be the D-Voters in certain cases. A
trunk full of laws has been framed for the protection of the interest of the genuine class with in
a night, but no single law has been made in support of the unconsidered class of immigra nts
and thereby making them more prone to be victims of the society. There is various social,
gender’s specific movement’s lead by accorded by this abundantly & illegally left behind class
who has worked till the last drop of his sweat to pave the tenor for the development of the
nation as far as doable. Furthermore, harassment isn’t just mental but is also emotional as well.
Because this class of immigrants has considered this pious land belongs equally to them as
well.

4 VivanEyben, The Backdoor Push for the Citizenship Amendment Bill,( Dec. 26, 2018 13:32:04 GMT)
https://www.newsclick.in.
5 SANJAYKUMAR & PARVEEN KUMAR, MEASURING VOTING RIGHTS IN INDIA, 49-55 (1st ed.

2013).

102
MIFFNESS OF ASSAM

This recent Amendment in the Citizenship bill, 2016 has lead the people of the northeastern
states to come on the roads to fight for their rights, to raise their voice so as to save the land
from which most of them has earned the bread & butter for generations after generations. It’s
the moment after when BJP had led to the Non-Democratic Alliance which has ultimate ly
allowed the illegal migrants from certain minority communities in Afghanistan, Bangladesh &
Pakistan eligible for Indian Citizenship. Evidently this Citizenship bill is not setting up in
coordination with most of the northeastern communities, particularly it is violating the Assam
Accord of 1985, according to which all those illegal migrants who had entered Assam from
Bangladesh after March 25, 1971, are as per this new proposed amendment bill required to be
deported to their parent countries. But simultaneously this bill sets out very different terms
which in reality have forced the majority of the northeastern to come out their shelters to raise
their voices in search of the new shade for their survival on a whole. This amendment has
hampered the ongoing NRC- updating process on passing of the bill ultimately.

Assam is worst affected state because of the reason that it already facing the illegal advent of
large number of Hindus from Bangladesh in the past several decades, most likely to seek shelter
their on permanent basis, which is in the process of causing the further damage to the state’s
demography & thereby reducing the number of Assamese & other indigenous communities
into a minority.6 This bill is endangering the language as well as the culture of the Assam &
ultimately changing the demography of the state once for all.

The state government has condemned its support as its support will render the credibility of the
Assam Accorded meaningless & will directly affect the identity of the state dwellers along with
the other indigenous communities of the state on a whole.

It is also crucial to realize that the secular country India doesn’t have the adequate resources to
absorb anyone & everyone who crosses the border.

It is to be taken into consideration that the demography of the Indian Territory is the large one.
If one goes as per the population wise too, India secures second position.

6 Ravish Kumar, The Free voice on Democracy, Culture & the Nation, 97 (2018).

103
Therefore one needs to think & plan wisely before opening the borders to every single refugee
on the humanitarian grounds & providing each one of them permanent citizenship to them are
two very different things.

DOCILITY IN THE REGISTERATION PROCESS OF OTHER NATIONS

In a recent survey of 2017 by the Economic Times- 7

Allow people to
register to their
government

Efficient The allowing them


Implementation to vote for any
process. new legislation.

Let their citizens


Automatically
to rank the
register the
proposed
people to vote.
legislation.

According to above quoted mechanism, it has been evident that it is due to the flexibility in the
registration process of the developed countries like USA, majority of the genuine citizens &
nationals have been able to secure the rights rather to form the minority on the advent of the
other national’s belongings to the other nation. It is a very serious issue and maneuver to be
taken to swept off one’s feet this. Indian society does not believe this slant because of their
venereal axiom that they don’t have enough resources as the other developed nations has. It is
only in the implementation process where the Indian Civilization is lagging behind in the rat
race of the development of the Nations.

VEHEMENCE WHACK BY PIVOTAL GOVERNMENT

It seems like with the advent of this amendment in The Citizenship Bill, BJP is trying to
strengthen its vote bank, playing the shear politics behind the veil of this amendment bill & on
a whole is destroying the indigenous culture and language of the northeastern states. 8

7 D.Majumdar, Survey of National Registration Process, The Economic Times, 9 (11/07/2017).


8 Poornima Joshi, BJP to help B’desh immigrant Hindus, The Hindu, Jan. 07, 2019.

104
Particularly in Assam migrants from Bangladesh are in continues process of settling in Assam.
If such settlement is continued, then the native population of the Assam will be overwhelmed
by these migrants thereby impeding the credibility of the nation, once the plausibility is
destroyed the society will become vulnerable to the illegal persecution hampering the social
consistency of every discrete.

Particularly on July 15, 2016, it was the BJP which had introduced this said Citizens hip
Amendment Bill. It was under the reign of Modi government, during its 2014 Lok Sabha
campaign, BJP had promised to amend the Act to make a way for legalizing minorities from
neighboring countries into India. Clearly this was nothing but the beginning of sowing of the
seeds of the votes of the minority at large & reaps the same at the advent of suitable time, so it
is nothing but a cunning formula to strengthen its vote bank.

So evidently BJP has targeted Assam for the same as with the formation Citizens hip
Amendment Bill Act, 2018, a lot of people from Bangladesh will come & settle & in addition
to this it will make those who had already migrated after March 24, 1971 citizens of India. So
the main issue is that whenever this Act is amended it was worsen the situation of Assam at
different times only, not whole of India, not even for other parts of India, not for anyone else
but for Assam. This will ultimately hurt the spirit of Assam Accorded. The current governme nt
hadn’t even paid any heed to the continuous requests made by various student unions for
deportation of those who had entered into Assam after March 24, 1971 but instead of that the
government had decided to provide them the citizenship.

WALLOP ALOFT THE REALM

The burning fact of today’s scenario is that if India being a multifarious country wants to hold
the fort of secularism then citizenship is not the groove to go. Outwardly the citizenship bill
subsumes the certain lines of rules down the lines of religion, as the same is not unknown in
India. Synchronically this new bill has however made this enunciated lucid. Since
independence, the immigration laws in India have been the enkindled subjects. In a self-ruling
country like India it has become very arduous for the country to bespeak its citizens from the
books of nationality and moving their accounts into the books of the non-citizens of the Nation.
This problem has further bifurcated into two heads:-

105
1. The movement of masses during the reign of Indo-Pak partition on the basis of the
religion, and

2. The isochronous incursion of immigrants & refugees owing to the subdued pliancy in
the neighboring countries.

So these citizenship laws are imperious to be sheer peculiar at times whenever such movements
has occurred and each of such squeaks are squeezed to their last drop by our law makers to
extract best out of it. Similar is the case in today’s eon wherein this Amendment Bill has proved
to be fatal for one community on one hand & on the other hand this same bill has brought
fortune to the shattered lives of the minority community.

WAY FORWARD

The equality of every citizen is to be sailed in the same boat. Every individual forms the core
requirements for the effective functioning of the civilized nation. Be it any organization or the
individual, everyone preserves the right to equality be it, the personal, sensitive & commercia l
sense as well as the interests of the discrete. There are no dedicated laws as to the protection of
interest of every community or providing the equality to each one of them as a whole against
the blowing wins to crime in India.

The legal
challenge
includes:-

Lack of laws for Lack of security


Lack of proper
the protection of legislation model
surveillance
laws against for securing the
system
minority interests

The legal challenge includes:-

1. Lack of proper surveillance system,


2. Lack of laws for the protection of laws against minority,
3. Lack of security legislation model for securing the interests of every member of the
community at large,

106
Thereby making it has become extremely difficult to ensure the protection of equality of the
weaker clan of the society at large. Though digitalization has paved the pace of the functio ning
of every sector in the modern scenario & is a rapidly spreading phenomenon in the world but
no endeavors has been made for ensuring the interests of one who has been crushed by the term
D-Voters within span of the one night only who are the victims of the crimes from the hands
of the illegal persecutions. Judicial advancements have always been bait for increasing crimina l
applications against the innocents burdened by the advanced & illegal precautions. Many new
possibilities have opened up for the prepetition of discriminating on the inherited rights of the
kinfolks of the same clan. The illusion so created by this dark web of illegal persecutions in the
world to the informing the civilians about the laws favoring the one stronger clan over the
weaker section has incepted all over the world. The three organs combined efforts have been
tackling the problems by introduction various laws. Definitive steps are required to be
undertaken by the government of India so that it lives up to the objective of improving the
conditions of the weaker sections in India but no concern has been shown by the governme nts
to make an step of hospitality towards the victimized clan. So in the light of above, there is a
dire need of plugging the loopholes in the best interest of the country.

107
NATIONAL REGISTER OF CITIZENS: LEGAL FRAMEWORK AND
IMPLEMENTATION

- Moiz and Akanksha Singh1

National Register of Citizens (NRC) is the register which compiles the name of all the legitimate
Indian Citizens of Assam basically the first register was prepared in 1951. The updation of the list
took place basically on the basis of the names of the persons or their descendants which appears in
1951 NRC or 1971 electoral rolls up to the midnight of 24th March 1971.
In 1985 it brought an end to a six-year-long agitation where the Assam accord was signed between
the leaders of AASU-AAGSP and the Government of India. In this in was clearly established that
whoever entered Assam between 1951 and 1961 would be given full citizenship while those who
entered after 25th March 1971 will be deported.

In this research paper we aim to analyze the impact of the National Register of Citizens over
the people of Assam. Why the government has come up with the list and how it is going to
affect the people of Assam?

And as the list gets compiled and there are names of the people who don’t find mention in the
list after going to the tribunal what will be the outcome and how the Citizenship Amendme nt
Bill 2019 will create a havoc after the due process. And how the left over people who don’t
have their names in the list and who can’t exercise their rights under the bill and even after
complying with the rules and regulation, they will be declared as illegal migrants, will they be
deported ? But we don’t stand firm with any of the deportation treaty with the countries
surrounding Assam.

INTRODUCTION

The citizenship could be offered in two ways that is ‘Jus Solis’ and ‘Jus Sanguinis’ meaning
place of the birth and relation with blood ties respectively. While the Article 5 of the Indian
Constitution talks about who will be known as the citizen of the country, a person born within
the territory, he has the domicile within the territory, or his either parents were born within the
territory of India, or he is resident before the commencement of the constitution for not less
than 5 years will be a citizen.

1 The Authors are students at Aligarh Muslim University.

108
And the Article 6 of the Indian Constitution talks about the right of citizenship to the people
who have migrated from Pakistan to India, they will have the right when his parents or
grandparents either of them was born in India as per the Government of India Act ,1935, the
person migrated before 19th July 1948 has become ordinary resident in the country, or people
who migrated after 19th July 1948 have been registered by the officer appointed by the
Government in the manner prescribed, if a person ceases to have lived around 6 months in the
country before he gives the application would have the right to citizenship.

In the Treaty of Yandabo in the year 1826 Burma gave away Assam it would aim to exclude
the illegal immigrants to protect the culture of the people of Assam. And when the East Pakistan
got separated from the West Pakistan and became Bangladesh where in 1971 the partition
created a lot of problems as it was based on the communal lines. There was a lot of moveme nt
from the other side of border in search of livelihood. While in 1985, Rajiv Gandhi, through the
Assam accord ensured people of Assam that the government will protect their cultura l,
tradition.

Now in 1951 during the Census the first National Register of Citizens was made to keep note
of the illegal immigrants it was carried under guidance of the ministry of external affairs and
while the facilities of passport and visa started this procedure suffered a huge setback during
the census of 1961 which majorly pointed out that there have been around 2 lakh people who
have illegally entered the state.

To identify the illegal immigrants in the year 1965 as per the data provided in the National
Register of Citizens there were National Identity Cards issued on this basis to distinguis h
between a citizen and an illegal immigrant. Government of Assam in 1966 dropped the idea to
do so as they concluded and found it to be impracticable while this project might have eased
the cause.

WHAT IS THE RATIONALE BEHIND THE MOVE?

Basically the rationale behind the move to update NRC was to be aimed to detect the illega l
immigrants so as to protect the social cultural and economic aspect of the state.

Assam Accord.

In 1985 it brought an end to a six-year-long agitation where the Assam accord was signed between
the leaders of AASU-AAGSP and the Government of India. People who came after 24th March

109
1971 must be deported while who came in between 1961-1971 must be deprived of the voting
rights and can be treated as the citizen and can enjoy citizenship rights, in 1985 there took place
an agreement between the centre, government of Assam and All Assam Students’ Union
(AASU) was included further in which it was decided that the NRC must be updated on the
basis of NRC1951 and the electoral rolls of 1971 this came to be known as Assam Accord.

Wherein 2009 Assam public works filed a petition while in 2013,SC, headed by the Bench of
Justice Ranjan Gogoi and Justice Rohintan Fali Nariman, asked both the central and state and
government to complete the NRC with the Citizenship Act 1955. The SC wants it to be
implemented readily so as to accomplish the task and SC would be monitoring the situatio n.
This marks the beginning of the gigantic task of the identification of illegal migrants

Pilot Project

Also, a Pilot Project took place on 7th June 2010 which was attempted to play a vital role in
the updation of the National Register of Citizens but the step could not harness the
recognization of the immigrants and it turned into a brutal action and it came to an end as police
killed 4 people such became the faith of it, after this it was considered to be an impossible task.

Last Step

On 17th December 2014 SC fixed the date to update NRC then 30th July 2018 the date was
decided so as the to complete the final draft of the NRC.

POSSIBLE CHALLENGES

There are a lot of challenges regarding the NRC and the upcoming Citizenship Amendme nt
Bill will create a lot of problems regarding the issue.

Conflict with the Citizenship Amendment Bill,2016

The Citizenship amendment Bill 2016 only talks about providing the citizenship to Banglades hi
Hindus who entered illegally after 1971. And there might be the case that certain names of
Hindu Bangladeshi might not appear in the list after the completion of NRC so now will the
NRC list prevail?

Basically, there should be illegitimate exclusion of any person it should not be discrimina ted
on the basis of religion as this would make a negative impact over the country’s decision. And
many politicians talk about that this might lead to social unrest and communal tensions among

110
Hindus and Muslims even in the neighbouring states but it is not happening like that this just
to provide the fuel to the fire.

Earlier the citizenship which was acquired by the process of naturalization a person had to stay
here for 11years but now if the bill gets the green light the duration would drop to 6 years.

Illegal immigrants will get a chance to become a citizen and it is basically for Hindus,
Christians, Buddhists, Sikhs, Jains, Parsi’s the argument is that the neighbouring countries like
Pakistan, Afghanistan and Bangladesh here minorities face a lot of atrocities so there is no
other country for them but on the other hand Ahmadiyya Muslims which are in minority and
face a lot of difficulty in Pakistan there is no mention for them.

Imagine if a person’s house has been burned in a fire what would you do to help him you would
provide him with shelter in your home or help him making his new home but you would not
make him the permanent resident of your home similarly in this immigration and providing
citizenship to the Hindus there are 1.7 crore Hindus in Bangladesh.

The people of Assam stand clear as they don’t want immigration no matter; he is a Hindu/
Muslim. This would disrupt the social order of the state. Lately the bill of the citizens hip
amendment has been passed in Lok Sabha and the people of Assam are not in favour of it and
there have been protest around 200 Assam organizatio n and few of them from the ruling party
are leading the protest.

POLITICAL BENEFIT

While during the Campaign of 2014 Lok Sabha Elections, Narendra Modi said that he would
make illegal Bangladeshi pack their bags out of the eastern states during the speech. But now
if we look at citizen amendment Bill 2016 this just changes the view of how we look at the
illegal immigrants because the bill only provides the citizenship specifically to a [articular
group of belonging to a particular religion.

All sorts of politics have been done on this where Amit Shah claiming that the Hindu
Bangladeshi should not worry about anything they would be held secured and protected. While
Mamta Banerjee quiet years ago asked for a law that a person who lived for 5 years should
become a citizen and she even went on adding that there would be communal tensions down
the line and this might lead to a civil war. The Citizenship Amendment Bill 2019 which has
been passed lately by the Lok Sabha contradicts Assam accord of 1985.

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CASES AND THEIR INFLUENCE

Sarbananda Sonowal Case

In the case of SarbanandaSonowal (Chief Minister of Assam) there was a petition in 2005, a
three-judge Bench remarked that the IMDT Act was ultra vires with the Foreigners’ Act, 1946
and was struck down since it applied only to Assam it even at variance with the whole of the
country. While the Nehru-Liaquat Pact paved way for the Eastern Pakistan date as 1950 and
19th July1948 is the cut-off date for Western Pakistan. The law cannot be held unconstitutio na l
as it was less effective than previous.
Sonowal judgment completely challenged the tribunal which was compelling that it would be
responsible to look after as to who will be illegal immigrant and RC Lahoti argued that why
different law for Assam why is it not same with the whole country and this is in violation with
Article 14 in my opinion. Basically, intelligible differentia should be the basis of law of Assam
could get separate dispensation. Secondly rationale object is that Indian citizen should not be
harassed under this practice.

This judgment wasn’t enough while in 2014 Justice Nariman judgment has discussed a little
bit about RC Lahoti and expressed that the National Register of Citizens should be completed
until 2016 which changed the date to 2018.

Assam Shang Militia Mahasang Case

Until or unless Constitution bench doesn’t give all the answers to the 13 questions raised in
the case them the whole practice of the NRC is under question if the constitutional holds the
section 6A unconstitutional then the whole exercise would come of no use first the stress
should be laid on 6A There is a demand that there should be a unified rule for the whole of the
country while when the section 6A was heard at full length the court accepted the petition to
challenge the constitutionality and there were around 13 question raised in 2014, some of them
are as follows , Is Section 6A is constitutional when it has a different cutoff date for Assam
from the rest of the country? Whether Section 6A violates the right to life of people of Assam
under Article 21 whose culture and life’s have been adversely affected by invasion illega l
migrants from Bangladesh. Whether Section 6A violates the right to equality? Whether Section
6A has infringed the political rights of citizens in Assam? and whether Section 6A violates rule
of law?
DOCUMENTS REQUIRED

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List A Documents

For inclusion of names of any person in updated NRC, the applicants must produce any one of
the following List A documents issued before 24 March (midnight), 1971 where the name of
self or ancestor appears (to prove residence in Assam up to 24 March (midnight), 1971):

· 1951 NRC

· Electoral Roll(s) up to 24 March (midnight), 1971

· Land & Tenancy Records

· Citizenship Certificate

· Permanent Residential Certificate

· Refugee Registration Certificate

· Passport

· LIC

· Any Govt. issued License/Certificate

· Govt. Service/ Employment Certificate

· Bank/Post Office Accounts

· Birth Certificate

· Board/University Educational Certificate

· Court Records/Processes

Further, the following two documents are also accepted as supporting documents if
accompanied by any one of the documents listed above:

· Circle Officer/GP Secretary Certificate in respect of married women migrating after


marriage (can be of any year before or after 24 March (midnight), 1971).

· Ration Card issued up to the midnight of 24 March 1971 can be adduced as supporting
documents.2

Now if we analyze the LIST A we will find that there is a lot of problem relating to the above
mentioned credentials as how many people we find having citizenship certificate, permanent

2 https://en.wikipedia.org/wiki/National_Register_of_Cit izens_of_India#Publication_of_Legacy_Data

113
residence certificate, the people usually don’t have passport it is difficult for poor people to get
such documents while a refugee certificate when people move from a country it is diffic ult
from them to think about getting a certificate further LIC policies usually rich people use to
avoid tax, government issued Driving License every licenses if we search and find there are a
lot of people who don’t have it, Post Office account is it really needed at this time? How many
peoples have it? Land tenancy records, in India people don’t give a view about all these stuffs,
and how many peoples are having their education certificate the University board certificate or
the court certificate of the cases this makes me question the requirements.

List B Documents

If any of the documents of List A is not of the applicant himself/herself but that of an ancestor,
namely, father or mother or grandfather or grandmother or great grandfather or great
grandmother (and so on) the applicant then have to submit List B documents to establish
relationship with such ancestor, i.e., father or mother or grandfather or grandmother or great
grandfather or great grandmother etc. whose name appears in List A. Such documents shall
have to be legally acceptable document which clearly proves such relationship. The applicants
must produce any one of the following List B to establish the linkage:

. Birth Certificate

. Land document

. Board/University Certificate

. Bank/LIC/Post Office records

. Circle Officer/GP Secretary Certificate in case of married women

. Electoral Roll

. Ration Card

. Any other legally acceptable document3

CONCLUSION

The point of people of Assam over the practice of NRC is this that want their civilization and
culture to be safeguarded against any of the illegal immigrants while they rebel against the
Citizenship Amendment Bill 2019 where the bill has been passed in Lok Sabha people of

3 https://en.wikipedia.org/wiki/National_Register_of_Cit izens_of_India#Publication_of_Legacy_Data

114
Assam want the illegal immigrant to be treated as illegal immigrant not to be classified on the
basis of religion which this bill aims to do so this has alarmed the ruling party as the Northeast
of India is currently unhappy with the Bill as they don’t want any influence of the alien parties
in their culture and life.

They form a simple argument that if a person would get the citizenship of India and he starts
living in India then who will pay for his livelihood, health and hygiene as it lacks opportunity
and suffers from poverty.
The entire exercise of NRC will become useless if the Constitutional bench holds the Section
6A of the Citizenship Act unconstitutional the 13 questions raised are supposed to be answered
by the Constitutional Bench for the practice to be Constitutional.

And after who don’t get their names in the list once the list has been completed, they can
challenge it and can take this onto the tribunal the foreign tribunal and further even if their
judgment could not satisfy the petitioner, they can further challenge it in the Hon’ble High
Court and Hon’ble Supreme Court and approximately this might take around 6-8 years for this
practice to be completed. If suppose we are to deport the people back to their respective
country’s so we don’t stand firm with any of the deportation treaty and for the illega l
immigrants from Bangladesh we are not even having any deportation treaty with them

Basically the government wanted to play good amount of politics in it but this roll of dice does
not seems to favor them they were thinking this would help them to just strengthen their vote
banks which would be increased by the addition of the immigrants but this went against the will
of the people of Assam the people of Assam want to preserve their culture, tradition a linguistic
identity it doesn’t bother to them whether the person who is an immigrant is a Muslim or a
Hindu. The Citizenship Amendment Bill of 2019 which has been passed lately by the Lok Sabha
is beyond the Secular Character of the constitution of India and the final list is yet to arrive in
the first list 40 Lakh people didn’t find mention in the list it is yet to be seen how the governme nt
is going to deal with and what they would do if a particular person wont finds its name in the
list, notably the former presidents family didn’t finds it place in the list.

115
Hence the people of Assam want to fight for their culture and linguistic identity.
“Being a refugee is a circumstance, it’s not a lifestyle. It’s not a choice,”

-Gomez Lopez, (a refugee from Mexico who arrived in Canada via Blaine, Wash., in 2012)

116
NATIONAL REGISTER OF CITIZENS: LEGAL FRAMEWORK AND
IMPLEMENTATION

- Monika
- CHAPTER I- UNANSWERED AND UNACKNOWLEDGED QUESTIONS FIND
ANSWERS IN THE PAGES OF THE HISTORY- TRACING THE HISTORY OF THE
ASSAM CRISIS

INTRODUCTION

19th Century Economic Opportunities turned into 21 st Assam Citizenship Crisis

In the 19th and 20th Century, the demographic contours of Assam underwent drastic changes
due to sliding of power in the hands of the British administrators and opening of new economic
avenues like growth of the tea plantation industry, building of railways, discovery of coal and
oil to name a few. Assam started witnessing influx of migration form rest of the British India
because started pouring in from different regions in search of better jobs and life style. 1

Legal Instruments Adopted to counter the ‘Soon to be Problem of Illegal Infiltrates’ 2

For the first time in 1950, the Government of India retaliated to the problem of migrants by
passing an act of the parliament called the Immigration (Expulsion) Act 1950 which empowered
the Central or State governments to order removal of those people from Assam who were
ordinarily residing in some place outside India. Further, the Nehru- Liaquat Agreement was
signed to ensure that the right over immovable property of those who fled Assam to survive
communal violence of 1950 remains undisturbed by anyone acquiring such property.3

In 1951, the Census of India and National Register of Citizens (NRC) were prepared. The NRC
contained detailed information about (i) each and every house and holding in each and every
village; and (ii) each and every individual present in such dwellings. Several attributes of an
individual like name of the father or the husband, sex, nationality, occupation etc. were
recorded in the register.

 The Author isa student at UILS,Chandigarh University, Gharuan, Punjab


1 WhitePaper on Foreigners’ Issue, HOME & POLIT ICAL DEPARTMENT , GOVERNMENT OF A SSAM (October 20,
2012)https://assam.gov.in/web/home-and-political-department/white-paper1
2 Id. at 6- 12

117
The Foreigners Act of 1946 is one of the major legal instruments which govern the gray and
complicated area of ‘Foreigners’ in India. The Pakistani nationals were brought under the ambit
of this act when the definition a ‘foreigner’ was amended to extended it to include those who
are non-citizens of India. As per the 1961 Census, over a span of a decade, 220600 infiltra tes
were depicted in Assam. This lead to the Police taking up the task of (i) detection; and (ii)
deportation of such infiltrates. A series of programs and schemes namely, issuance of ID cards
to citizens, prevention of infiltration in India of Pakistani infiltrates (PIP), establishment of
Foreigners Tribunals by way of Foreigners (Tribunal) Order 1964, the 6-year long Assam
Agitation and subsequent signing of the Assam Accord on 15 th August, 1984.

Assam Accord; Purpose, Contents, Implementation and the NRC4

In 1979, when elections to the Mangaldai Lok Sabha Constituency were conducted, names of
‘persons with suspected nationalities’ were included in the electoral roll. Owing to this, a strike
was called upon by the All Assam Students Union (AASU) with the demand to (i) detect; (ii)
disenfranchise; and (iii) deport these foreign nationals. This strike culminated into a 6- year
long agitation which leased a furry of violent acts including the Nellie Massacre (1893). 5

This matter figured in the central discourse when ASSU write a letter to the then PM Indira
Gandhi on 2nd February, 1980, putting forth their demands and proposing solution. During the
span of 5 years from 1980- 85, 32 rounds of formal and informal discussions and deliberatio ns
took place and finally reaped into the present day Assam Accord.

The Assam Accord is a Memorandum of Settlement which was signed on the 15 th August, 1985
between the All Assam Students Union (AASU), All Assam Gana Sangram Parished (AAGSP)
and Central Government on the Foreign National Issue.

The Accord unfolded into the following three spheres; the foreigners’ issue, issues regarding
safeguards and development and other issues comprising; issuance of Indian Citizens hip
Certificates (ICC), sealing international borders, setting up of check posts at land and riverine
routes, maintaining death and birth register strictly, clearing a belt of land area along the border
for easier detection of infiltrates.

4 Assam Accord, GOVERNMENT OF A SSAM (August 15,


1985)https://assam.gov.in/documents/1631171/0/Annexure_10.pdf?version=1.0
5 Supra note 1 at 11

118
As far as the foreigners issue is concerned, it was agreed that in order to detect, disenfranchise
and deport immigrants, they were divided into three categories. January 1st 1966 is the base
date for unfolding this process.

The three categories are as follows; (i) those who came to Assam prior to January 1st , 1966
were to be ‘regularized’ and have full rights of a citizen; (ii) those who came to Assam between
1 January, 1966 and 24th March, 1971 (inclusive) were to be ‘disenfranchised’ that is, their
names were to be removed from the electoral rolls and they were to register themselves with
the Registration Authority and on completion of 10 years from such date of registration, their
names were to be again added in the electoral roll; while (iii) those who came to Assam on or
after 25th March, 1971, will be deported back to their home country.

The Accord also voiced the concern of Assamese to preserve their cultural identity and ensure
economic development. Specific demands about relaxing upper age limit for governme nt
employment opportunities were also made. ‘Explicit’ demand for updating NRC was not given
in the Assam Accord.

CHAPTER 2- NATIONAL REGISTER OF CITIZENS (NRC); LEGAL FRAMEWORK


AND IMPLEMENTATION

During the course of the discussion between the AASU and the Government, the former
submitted to the latter in January 1980 and 1990, the first memorandum demanding ‘update of
NRC’ and modalities to bring into effect such update. However, no concrete step was taken in
the direction until 2005 when on 5th May a tripartite agreement was reached between the then
Hon’ble Prime Minister Dr. Manmohan Singh, Chief Minister of Assam and AASU. 6

Legal Framework

To give legal standing to this agreement, The Citizenship (Registration of Citizens and Issue of
National Cards) Rules, 2003 were amended in the year 2009 and section 4 A was inserted to
lay down the framework for the implementation of the NRC Update process. This newly
inserted section differentiates NRC update process for Assam from rest of the country, by
providing that the process of enumeration of data shall not be undertaken by collecting data

6 Convention of NRC,Citizenship and Dissent, NCHRO (September 23, 2018) http://nchro.org/wp-


content/uploads/2018/10/NCHRO-Convention-New-Delh i-NRC-Dissent-23.9.18-Paper1-A minul-Haque.pdf

119
manually from each and every house hold, rather it will be done by way of inviting and
receiving such applications from those who wish their names to be registered in the NRC.

In August 2007 a ‘cabinet sub-committee’ chaired by Dr.Bhumidhar Barman was formed to


examine the modalities for updating NRC and its recommendations were accepted by the State
Cabinet and sent to the Government of India in June 2008. Based on the proposed modalities,
a polite project was carried out in 2 circles namely BarpetaandCheay (Kamrup) District in June
2010. This project was soon stopped amidst protest launched by AASU against complexity in
its structure. Again a new ‘cabinet sub-committee’ headed by Shree Prithvi Maji, framed
simple modalities for the process of updating NRC in consultation with the stakeholders. The
recommendation of this committee was accepted by the Centre and the State Government. The
NRC process was to be conducted taking into consideration (i) NRC 1951; and (ii) electoral
roll (before March 25th 1971).7

The issue of updating the NRC in particular and the Assam citizenship crisis in general were
brought before the Hon’ble SC on various occasions by way of writ petitions. In case of
SarbanandaSonowal v. Union of India &Anr (2005) the Illegal Migrants (Determination by
Tribunals) Act, 1983 was held unconstitutional, in 2009 an NGO called the Assam Public Work
approached the SC while on 17th December 2017 the SC passed an order in a batch of petitions
in the case Assam SanmilitaMahasangha v Union of India to kick start the NRC process.

After giving several deadlines for producing a draft NRC, the Registrar General of India and
the NRC authorities released the first draft NRC on 31 st December, 2017 and the final draft
was released on 30th July, 2018.

Implementation8 -

The NRC in Assam is updated by calling in applications from people of Assam to be a part of
the NRC process. The applicants produce certain documents corroborate their claims and in
case their claims are not sustained, they are subjected to the proceedings of the Foreigners
Tribunals and eventually depending upon the judgment or the opinion of the tribunal, they are
either deported or given citizenship as the case may be.

Eligibility to be a part of the updated NRC is ascertained by producing valid documents


enumerated in List A and List B. List A contains such documents which are issued before

7 Supra note 6 at 1
8 Supra note 6 at 1- 6

120
March 24, 1971 and which are issued either in the name of the applicant or his or her ancestors
while List B contains those documents which are issued before the above stipulated date in the
name of the ancestors of the applicant and which are furnished to establish relationship between
the claimant and his or her ancestor. The following processes are carried during the process of
inviting applications and their verification;

Publication of Documents

The NRC authorities have published documents like NRC 1951, Voter list of 1965, 1966, 1970
and 1971 in form of digital platforms like the ‘Legacy Data.’

Receipt of Applications-

As per a document of Indian International Centre, New Delhi, about 68 lac families comprising
of 3.29 Crore applicants filed for inclusion of their names in the NRC.

Process of Verification undertaken by the Officials; Legacy Data and the Family Tree -

A new device called the ‘Family Tree’ was introduced to have a check on the misuse of Legal
data. It was not a part of the modalities initially proposed. It efficiently traces the connection
of a claimant to his ancestors using the Legal Data platform.

Panchayat Link Certificate; Cancellation and Restoration-

In order to establish a married woman’s relation with her parents, a new document called the
‘Panchayat Link Certificate’ issue by the village Panchayat. These documents were termed as
‘supporting documents’ in the modalities proposed for NRC updating process. However, the
Hon’ble Guwahati High Court passed an order in February, 2017 terming this document as
‘personal.’ This order was overturned by the Hon’ble Supreme Court who restored its legal
validity subject to verification of its content. 9

CHAPTER 3- PROCEDURAL HURDLES IN NRC-

The following are the procedural hurdles in the NRC which needs to be addressed;

Problems with the verification using the ‘Family Tree’10 -

9 Supra note 6 at 3
10 Ibid

121
There are certain documents called the Weak Documents and their validity is ascertained by
Family tree verification. But this process is also ploughed by certain inevitable problems like
one legacy person’s name appears in various applications or lack of knowledge of a person
about his ancestry which mandates manual verification of the family by NRC Officers who
are not adequately trained.

Ambiguity surrounding list of documents to be submitted for verification of Citizens hip


Claim11 -

The documents which were required to corroborate the claims of citizens hip were surrounded
by the air of ambiguity that once surrounded the entire issue of Aadhar. The general masses is
confused as to which document has validity because the documents to be considered are
undergoing revision process and the positions are clear between the judiciary and the executive.

Instead of order of the SC and repetitive guidelines issued thereafter by the relevant authorities
regarding legality of the Panchayat Link Certificate, the verifying officers were not considering
it as valid documents and were insisting on producing an alternative form of document. This
practice is sufficient to exclude significant number of genuine citizens (married women) out of
the NRC. Owing to the illiteracy and non-familiarity with governmental work, the claimants
often end up finding the ‘claim forms’ abstruse to comprehend. Further they often do not
possess relevant document to prove their claim.

Notice of Verification process not reached12 -

It was stated in the White Paper on Foreigners issue that many of the suspected foreigne rs
worked as rickshaw driver or manual workers and they had no permanent settlement, therefore,
notices of verification often ended up at their temporary addresses and rendering these
applications unverified.

Misuse of power of NRC Officials-

In case a person’s application for inclusion of his name in the NRC is rejected, the process of
re-claim is very cumbersome. The manner in which the grievances of such persons are handled
is not satisfactory. Absurd and arbitrary replies such as technical glitches, necessity of
resubmission of link document, declared foreigners (DF) and their relatives, doubtful Voters
(D Voters), are given to their query.

11 Ibid
12 Supra note 6 at 4

122
Those applicants who are in the ‘hold category’ such as DF and their relatives, D Voters etc.
cannot re-apply or re-claim for inclusion of their names in NRC during the pendency of their
matters before the Foreigner Tribunal. In spite of giving repetitive extensions (31 st December
2018 being the latest) around 10 lac people have not been able to file fresh claims.

How can the NRC process be carried out when the constitutional validity of 6A is still
awaiting decision of the Constitutional bench of the Supreme Court-? 13

The constitutional Validity of Section 6 A of the Citizenship Act 1955 was challenged before
the Hon’ble Supreme Court of India in the case Assam SanmilitaMahasangha v Union of India
by way of a writ petition. The Apex court comprising of a 2 judge bench of Justice Ranjan
Gogoi and Justice R F Nariman clubbed a batch of petitions in this matter. The Hon’ble bench
took a rather contradictory stand by ordering completion of the NRC Updating process and
simultaneously framing nine questions to be referred to a Constitutional bench for decision
which has not come yet.

Absence of Deportation Policy with Bangladesh14 -

The ‘detection’ and ‘deportation’ of ‘suspected’ and ‘declared’ foreigners is done by the Border
Police Personnel. The foreigners are mostly detected by personal surveys. The Police Officia ls
are also furnished with information by ‘internal sources’ about any suspected foreigner. The
lists of the families are collected from the VDPs, the numbers of members in the family are
checked and the moment any member’s name is not present on the list, he or she comes under
scrutiny of the Police. Such persons are given opportunities to prove their citizenship by
producing valid documents and an enquiry is started in event of failure of such documents to
establish such claims.

The documents which need to be produced are as follows;

a. For those who came to Assam before January 1, 1966; the Voters list of 196, the NRC
of 1951, refugee certificate, revenue record and school certificate before 1966; and
b. Those who are not able to produce any of the above stated documents but produces
documents which prove their entry into Assam on or before 24 th March, 1971;

13 Mohsin Alam Bhat, On The NRC, Even the Supreme Court is Helpless, THE W IRE (January 7, 2019
https://thewire.in/law/nrc-supreme-court-crisis
14 Supra note 1 at 19- 22

123
The matter is referred to the Superintendent of Police (SP) for approval sought to start an
enquiry. After receiving the enquiry report, the SP sends the matter before the Tribunal in case
the claim made in accordance are doubtful or if it is made as per point ‘b,’ an enquiry is
conducted in the latter category on these suspected foreigners in the stream of 1966 to 1971,
their names are taken out of the electoral roll for ten years and they are required to register
themselves within 60 days, failing which leads to their deportation. The copy of the judgment
of the Tribunal is sent to the SP. Those who are ‘declared foreigners’ after such judgment are
kept into detention centres and handed over to the Border Security Force (BSF). The BSF sends
the necessary details of such persons to their counter parts in Bangladesh and to the Ministr y
of External Affairs. Their counter-part in turn submits the documents of such persons for
verification and once such verification is done the person is deported or pushed back into his
own country.

The SC has been monitoring the process and is pushing the government to draft a deportation
policy with Bangladesh but the demand of SC seems to have no effect on Government as it
was reinstated by the Bangladeshi officials that the Indian Government has not raised the issues
with them. Given this lenient outlook of the Indian Government towards having dialogues with
the Bangladeshi government surrounding major, the Bangladeshi government has termed the
issue as a “local matter under toned by ethnic outlook.”

‘D’ Voters 15 -

During revision of the electoral roll in 1997, the letter ‘D’ was marked against the names of
some of the voters who were unable to furnish proof of their citizenship to the local verifica tio n
officers (LVO). The report of these officers was considered by the Electoral registration Officer
in whose hands laid the power to decide whether to refer the case to the tribunal through the
SF. Depending upon the decision of the court the name of voters was either confirmed or
removed from the electoral roll.

Updating NRC is not Solution to the Gigantic Problem which includes deeper and gravest
humanitarian crisis 16 -

15 Supra note 1 at 23
16 MarkandeyKatju, NRC will not Resolve Assam’s Humanitarian Crisis, THE W IRE (August 16, 2018)
https://thewire.in/politics/nrc-final-draft-citizenship-assam-violence

124
Section 3 of the Citizenship Act 1955 provides that an individual can acquire citizenship by
birth. An amendment passed during the Rajiv Gandhi Government provided for any one born
in India between January 2, 1950 and before July 1, 1987, to become a citizen of India by birth
irrespective of the nationality of the parents while those born after July 1 st to become citize n
only if at least one of the parents was an Indian citizen.

Another amendment was introduced in the year 2003 whereby people taking birth in India afte r
Dec 3, 2003 were given citizenship provided both of his parents were Indian Citizen or one
parent was Indian citizen while the other was NOT an illegal immigrant.

CHAPTER 4- CONTRADICTIONS BETWEEN THE CITIZENSHIP (AMENDMENT)


BILL, 2016 AND THE NRC

The Citizenship amendment bill 2016 seeks to make an amendment to the Citizenship act of
1955 by introducing provisions for granting citizenship to immigrants belonging to 6 religio ns
from three nationalities namely Sikh, Hindus, Jain, Buddhists, Paresis and Christians from
Bangladesh, Afghanistan and Pakistan respectively, thus isolating Muslim immigrants. This in
itself is violates the provisions of the Indian Constitution. These immigrants must have been
victims of religious persecution in the above mentioned countries and must have entered Assam
on or before 31st December, 2014.

Petitions against the Citizenship Amendment Bill17

In case this bill turns into an act of the parliament, it will lead to striking down of all the
proceeding pending against the above stated illegal immigrants (if proven to be victims of
religious persecution) and will grants them citizenship by the process of naturalization but here
comes leverage, the time period of such naturalization is reduced from 11 years to 6 years.

To complement this amendment, amendments were also introduced in the Passport (Entry in
India) Rules 1950 by way of inserting Rule 4 (1) (ha). This rule exempted the immigrants who
are victims of religious persecution from application of the Rule 3 which restrained entry into
India of who do not own a valid passport or stays in India beyond the expiry of the valid travel
document.

17 AbirPhukan, Citizenship Bill; Legislative Chaos or Amnesia?,THE W IRE (January 12, 2019)
https://thewire.in/rights/citizenship-bill-legislative-chaos-or-amnesia

125
This amendment bill has added more fuel to the fire and made this already chaotic matter into
a complete havoc. It is not helping in solving the root problem of infilt ration of illega l
immigrants and updating NRC without taking into consideration the agreed cut-off date of 25th
March 1971 for deporting these infiltrators.

Religious persecution- how to prove?

On the one hand the government has taken a gigantic step by bringing in this amendment and
on the other hand there is no reasonable framework to identify the ‘victims of religio us
persecution.’ As per a reply to JPC, the government seemed rather ‘vague and internally naïve’
as it proposed to verify these infiltrate by relying information from the information given by
the security agencies and supportive evidences available in form of print or electronic media.
Thus, there is tremendous possibility of misuse of such process.

CHAPTER 5- CONCLUSION

The 19th Century quests of British for opening the doors of beautiful, peaceful and resource
rich land of Assam to the rest of British India in search of new economic avenues, has taken a
complete opposite turn. The huge influx of immigrants in Assam of infiltrates has created geo-
political- social- legal and cultural complexities. After more than 7 decades of violence in name
of preserving cultural identity of Assam humanity is sacrificed.

The concern of Assamese surrounding ‘economic burden’ of these immigrants is the chore of
the problem. Anything in between are chaos and marathon resulting from political maneuvers
and loud and fast pacing public and legal discourses. The whole process of NRC is plagued by
massive legal- political- social- humanitarian and technical flows.

126
CITIZENSHIP IN ASSAM AND EXCLUSION: A STUDY OF THE WORKING OF
THE FOREIGNER’S TRIBUNALS AND NATIONAL REGISTER OF CITIZENS
(NRC) WITH REFERENCE TO THE CITIZENSHIP (AMENDMENT) BILL, 2016

- Md Mubarak Ali

ABSTRACT

Cross-border migration and the subject of citizenship are highly controversial issues in the
State of Assam and the rest of North-East India. The issue of Bangladeshi migrants in India
has become a major concern for policy making in recent years. Since partition the migratio n
issue has been dominant in the politics of Assam but it was only in the late seventies that the
movement against illegal migration gained vibrancy. During the period of Assam Movement
(1979-1980) against illegal migration, ethnic and religious riots, demonstrations and general
civil disorder resulted in as many as 5000 deaths and dislocation of 1 million people. After a
series of violent activities, demonstrations, strikes, blockades, various rounds of talks with the
government resulted in the signing of the Assam Accord on 15 August, 1985. In the name of
identification of illegal migrants, Muslims and Bangla-speaking Hindus have been targeted. In
2016 the Government of India has introduced the Citizenship (Amendment) Bill and got passed
in the Lok Sabha on January 8, 2019 to grant citizenship to non-Muslim migrants from
Afghanistan, Pakistan and Bangladesh. In the meantime the process of updating the NRC is
also in full swing. The paper will study the issue of ‘D-voters’ and examine the working of the
Foreigner’s Tribunals. The paper will also highlight the provisions of the proposed Citizens hip
(Amendment) Bill, 2016 and its impact on the process of updating the National Register of
Citizens (NRC) process in which about 40 lakh names have been excluded in the final draft
released on July 31, 2018.

Key words: Bangladeshi, Hindus, Muslims, Citizenship, Foreigners, Illegal, Migrants,


Exclusion.

 The Author is a Research Scholar at Dept. of Political Science, Aligarh Muslim University

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INTRODUCTION

Citizenship refers to the status of an individual as a full and responsible member of a politica l
community. In a democratic set-up like India, there exists a controversy in citizenship regarding
who is entitled to be a citizen and who is not. In the electoral politics, where identity and vote-
bank bank politics is vehemently practiced, citizenship is used as a tool of assimilation and
exclusion, and minorities are often targeted in this context. In this context, the politics in the
State of Assam comes to mind very first. Assam is a multi- lingual, multi-ethnic and multi-
cultural state in India since ages. Since Independence, and even before, there was the
controversy of language which developed into the controversy of citizenship on religious lines
on the pretext of ‘Bangladeshi migrants’ with the passage of time.

On July 19, 2016, Union Home Minister Rajnath Singh introduced the Citizens hip
(Amendment) Bill, 2016 in the Lok Sabha with the provision of granting citizenship to the non-
Muslim migrants/ refugees / asylum seekers from Afghanistan, Pakistan and Bangladesh. After
introduction, the Bill ran into controversy and the Bill was sent to the Joint Parliamentar y
Committee. The Committee under the chairmanship of Rajendra Aggarwal, tabled its report in
the Lok Sabha on January 7, 2019 and the Bill was passed in the Lok Sabha on January 8, 2019.
It is yet to be introduced in the Rajya Sabha at the time of writing this paper. Since the Bill is
meant for the whole country but there has been sharp reactions in the politics of Assam. There
have been several protests and bandhs since the introduction of the Bill. The Bill was supported
in the Bengali-dominated Barak Valley but vehemently opposed in the Brahmaputra Valley. In
the meantime the process of updating the National Register of Citizens (NRC), 1951 was also
in full swing. In the final draft of the NRC, published on July 30, 2018, almost 40 lakh names
were left out. Among those left are mostly Muslims and Bangla-speaking Hindus.

The paper examines the provisions of the Citizenship (Amendment) Bill, 2016 and NRC
process. It attempts to understand the implications of NRC on the working of Foreigner’s
Tribunals (FTs) and the politics prevailing in Assam the light of Citizenship (Amendment) Bill.
Qualitative and descriptive methods have been used in the study and is based on secondary
sources like books, journals, magazine stories, newspaper reports, government reports, NGO
reports, web portals etc.

THEORITICAL FRAMEWORK

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There is no universal and precise definition of citizenship. The concept and meaning of
citizenship have been interpreted differently in different regimes and reigns. Aristotle regarded
citizenship as “privilege of ruling class” in the ancient and Greek and Roman state systems.
The modern concept of citizenship has been derived from The French Revolution (1789) and
the consequent Declaration of Rights of Man and Citizen. Rousseau in his “Social Contract”
(1762) wrote that citizen is a free and autonomous person. He is entitled, according to
Rousseau, to participate in all those decisions which are binding on all citizens. John Locke
(1632-1704) regarded the idea of natural rights as the basis of citizenship. Locke argued that
the ‘right to life, liberty, and property’ was the mainstay of natural rights T. H. Marshall in his
“Citizenship and Social Class” (1950) observed that citizenship implies full membership of a
community: those who possess this status are equal with respect of to the rights and duties
associated with it Liberal Theory of Citizenship, which T.H. Marshall advocated, says that the
idea of citizenship runs counter to the idea of class division of society.
In India, citizenship is governed by the Citizenship Act, 1955 which have been amended in
1986, 1992, 2003 and 2005. The original Citizenship Act that gave citizenship on the princip le
of ‘jus solis’ to everyone born in India which meant those who born in India are citizen of the
country by the virtue of his birth. The 1986 amendment added the condition that to ones’ own
birth in India, one could get citizenship only if either of one’s parent was an Indian citizen at
that the time of birth. In another amendment in 2003, the law requires that in addition to the
fact of birth either both the parents should be Indian citizen or one parent must be an Indian
citizen and other should not be an illegal migrant. With these exclusionary amendments, the
narrow principle of ‘jus sanguinis’ has become more important than the fact of ones birth on
Indian soil. According to Faizan Mustafa, exclusion of outsiders or others is central to modern
citizenship concept.

NATIONAL REGISTER OF CITIZENS (NRC) AND CITIZENSHIP POLITICS IN


ASSAM
Cross-border migration and the subject of citizenship are highly controversial issues in the
State of Assam and the rest of North-East India. Since partition the migration issue has been
dominant in the politics of Assam but it was only in the late seventies that the movement against
illegal migration gained vibrancy. During the period of Assam Movement (1979-1980) against
illegal migration, there were ethnic and religious riots like Nellei massacre in 1983,
demonstrations and general civil disorder resulted in as many as 5000 deaths and dislocatio n
of 1 million people. After a series of violent activities, demonstrations, strikes, blockades,

129
various rounds of talks with the government resulted in the signing of the Assam Accord on 15
August, 1985. The accord addressed the foreigner’s issue, economic developme nt,
safeguarding the Assamese culture and the issue of citizenship certificates. The key elements
of Assam Accord was detection of foreigner’s, deletion of their names and deportation and the
updating the National Register of Citizens (NRC), 1951. For the purpose of detection and
deletion of foreigners, the base date is January 1, 1966 and for deportation the base date is
March 24, 1971. Foreigners who came to Assam between January 1, 1966 (inclusive) and
March 24, 1971 to be detected in accordance with the provisions of the Foreigners Act, 1946
and the Foreigners (Tribunals) Order, 1939.
The National Register of Citizens (NRC), 1951 which is a unique phenomenon in Assam, was
prepared under a directive of Ministry of Home Affairs during the census of India and included
all those whose names were in the 1951 Census of India. It is a list of all the legal citizens of
the state. It is governed by The Citizenship Act, 1955, and The Citizenship (Registration of
Citizens and Issue of National Identity Cards) Rules, 2003 (amended in 2009) and a 2010 order
of the Ministry of Home Affairs, published in the Gazette of India. Initially the NRC registers
were kept in the offices of DCs and SDOs, but later transferred to police in early 1960s for
facilitating verification of infiltrants/illegal immigrants. The process of updating the NRC was
initiated in 2005 by former Prime Minister, Manmohan Singh. The process has taken pace in
the BJP-led NDA government since it took over in 2016. It is currently operating under the
supervision of the Supreme Court. For updating the NRC, the documents that could be
submitted as proof are:
a) Electoral Roll(s) up to March 24, 1971 (midnight);
b) Land & Tenancy Records;
c) Citizenship Certificate;
d) Permanent Residential Certificate;
e) Refugee Registration Certificate;
f) Passport;
g) LIC documents;
h) Any government- issued license/Certificate;
i) Service/ Employment Certificate;
j) Bank/Post Office Accounts;
k) Birth Certificate;
l) Board/University Educational Certificate, and

130
m) Court Records/Processes.
If a name in any of the above given documents is not of the applicant but that of his/her
ancestors, namely, father, grandfather or grandmother or great grandfather or great
grandmother (and so on) of the applicant, other documents are required. In such cases, the
applicant has to submit following mentioned documents to prove the relationship with such
ancestors whose name appears in the above mentioned documents:
a) Birth Certificate
b) Land document
c) Board/University Certificate
d) Bank/LIC/Post Office records
e) Circle Officer/GP Secretary Certificate in case of married women
f) Electoral Roll
g) Ration Card, and
h) Any other legally acceptable document
The complete draft of NRC was published after almost 33 years of signing of Assam Accord
on July 30, 2018. Of 3,29,91,384 applicants included in the complete draft. 40,70,707
applicants have been declared ineligible for inclusion. Among those excluded, 37,59.630
names have been rejected and 2,48,077 have been kept on hold. The minorities and the
marginalised, especially the poor and illiterate sections mostly Muslim community Bangla -
speaking Hindus who are not in possession of the prescribed documents to establish their
citizenship credentials or are unaware of the intricacies of the NRC updating process, could not
find a place in the final draft NRC list. According to official sources, about 27 lakh Muslim
women having no other documentary proof except certificates issued by the local Panchayats
do not appear in the list. According to Akram Hussein, president of HatishalaBhalukabari Gram
Panchayat (GP) in Kamrup district, most of these women belong to extremely impoveris hed
backward classes and have neither birth certificates nor any other documents connecting them
to their parents. He says, “Most of them never received any formal education, and so have no
school documents, and were married off before the age of 18. As a result even their voter ID
cards do not carry their parents’ name and address.” The Supreme Court allowed the gram
panchayat certificate issued by the panchayat secretary as a valid document that could be
submitted for the inclusion in the NRC, and most women have submitted only this as they had
no other document.

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Out of 40,70,707, names not included, 2,48,077 people were kept on “hold”, which included
people belonging to four categories: D- voters, descendants of D- voters, people whose cases
are pending in Foreigners Tribunals (FTs) and descendants from these persons. “D” (doubtful)
voter is a unique phenomenon found in the electoral rolls of Assam of 1997 during the revisio n
of electoral rolls in the pursuance of instruction of the Election Commission of India dated
January 5, 1998 .The letter ‘D’ was marked against the names of those electors who could not
prove their Indian citizenship. “D” meant that the status of citizenship of the elector is disputed
or doubtful. Among those marked with “D” are mostly Muslims and Bangla-speaking Hindus.
Over 60 percent of them are married women. Since their names almost never appeared on land
records, or family trees, or school enrolment lists, women are particularly vulnerable. S R
Darapuri (former IG, UP Police) criticised the concept “D” voter. He put, “The concept of ‘D-
Voter’ is completely illegal and has no place in the Constitution. There can be citizens and non-
citizens but not doubtful citizens”. The NRC exercise, can be argued, has worsened the already
difficult situation for the D-voters who are under suspicion of not being Indian citizen.

FOREIGNER’ TRIBUNALS AND EXCLUSION


The Foreigners’ Tribunal (FTs) are quasi-judicial bodies meant to furnish opinion on the
question as to whether a person is or is not a foreigner within the meaning of Foreigners’ Act,
1946. FTs were established in 1964, but gradually wound up between December 31, 1969 and
March, 1973. It was revived in 1979. Over the years, 36 FTs came to be functional across the
State. Since 2015, the number of FTs has been raised to 100 and the criteria for the selection
of Member has also been relaxed. With the relaxed provision any practicing advocate who has
completed 45 years of age as on May 1, 2015 and 10 years of legal practice can be eligible for
the post in contrast to the earlier norm of only a serving or retired district judge could be
appointed as an FT Member. According to a report in Indian Express, since 1964 the
Foreigners’ Tribunal have identified an estimated 90,000 foreigners, but some of them are dead
or “untraced” as per the government sources. Till April 2018, 899 people, who have been
declared foreigners’ and ‘D-voters’, were held in detention camps. Also, 29,738 have been
deported, but most of these had been convicted of crimes in Indian courts, and very few of
them were among those declared foreigners by the tribunals. Of these deported between March
2013 and December 2017, only two had been declared foreigners by the tribunals.

Abhishek Saha of The Sunday Express (August 5, 2018) covered the working of FT2, Barpeta.
In the report it is mentioned that in the absence of a government lawyer, the Member of Barpeta

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FT2 is also acting as State lawyer. So the question arises, how a Member of FT who has to
decide the case, is also State lawyer representing the views of executive? It can be argued,
while discharging his duties as State lawyer and Member of FT, would he be doing justice with
his responsibilities while representing diverging views as a public prosecutor and judge
simultaneously? The report also states that this is the case in many of the 100 FTs across the
State, even the as the burden of proof under the law in on those accused of being foreigners. In
more than 30-odd years since the FTs came into existence, the report states, till December
2017, they have disposed of just 2.40 lakh case while a little 2.45 lakh cases were still pending
with them. According to report, a lawyer who has cases at FT2, Barpeta, says that on an average
20-25 cases are at various stages lined up before FTs. If we consider the working of FTs, which
is overworked and overcrowded, presided on an average by one Member each, it hard to
imagine, how many years, will the FTs take to decide the mammoth cases of 40 lakh people
excluded from National Register of Citizens.
Abhijeet Choudhury, claimed to have been a lawyer in 400 cases at various FTs in Barpeta for
eight years, says “any mistake, however slight in regarding the names and spellings,
discrepancies in age between one document and another or an answer to a question that does
not match submitted document, might led to a person having being declared as a foreigner ”.
Another lawyer gave the example of a brother who came as a witness of his sister and was
unable to say correctly the year she was married. She was declared a foreigner.
According to the report, there is no systematic procedure for the D-voters to get notices from
FTs. There are numerous instances of people marked ‘D’ in 1997 only getting notices in the
past four years. S R Darapuri states that there are complaints that people are not being given a
fair chance to defend and prove them as Indian citizen before the FTs. They are not being
served notices properly just because it sent to their temporary addresses or the places that have
been washed away or relocated because of massive erosion caused by river Brahmaputra every
year but only exist official records. He further says, “In majority of cases, we found people
declared foreigners ex-parte. And therefore, they end up languishing in jails in the name of
detention camps. We also found that people were declared foreigners but they have not been
provided with a copy of judgement so that they can challenge the verdict in superior courts.”
The BJP Government in the State has been accused of putting pressure on the FTs to declare
people as foreigners. Lawyer Abhijeet Choudhury says that of his first 300 cases, only one or
two were declared foreigners. In last one year, he added that the number stands at 35 of 100
cases.

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CASES OF EXCLUSION
Two men Ashraf Ali, 41 and Kismat Ali, 40 migrants from Bihar and Utter Pradesh
respectively were sent to a detention camp in August 2015, by the Foreigners’ Tribunal, which
declared them as illegal migrants from Bangladesh. Both were picked up by gun-toting
policemen from their homes around midnight on August 11, 2015. They were first taken to the
Dimakuchi police station and then to SP (Border)’s office in Udalgiri”. At the SP (B)’s office
about 120 km from Guwahati, the men were told that their names had been marked as D-voters
in the electoral rolls. Then the two were driven to Goalpara, about 310 km away and dumped
into the detention section of the district jail, meant to accommodate illegal Banglades hi
migrants awaiting deportation. On July 30, 2016 Gauhati High Court dismissed their petition.
They then went to the Supreme Court, which called reports from the governments of Uttar
Pradesh and Bihar. Based on the reports, the apex court ordered a CBI probe. Reports from UP
and Bihar governments, and then by the CBI, all proved that Kismat and Ashraf were Indian
citizens following which the Supreme Court on August 22, 2017 asked the Foreigners’ Tribuna l
in Udalgiri to pass a reasoned orders. Accordingly, the Tribunal reopened the matter and passed
separate orders for Kismat and Ashraf on October 30, declaring both as citizens of India, and
ordering their release. On October 30, 2017 they finally returned home after having spent
exactly two years, two months and 17 days at the camp.
Another case is of a retired Junior Commissioned Officer (JCO) in the Indian Army, Md Azmal
Haque, who served for 30 years. He got a notice from the Foreigners’ Tribunal of Kamrup
district asking him to prove that he was a genuine citizen of India and had not illegally entered
the country from Bangladesh after 1971. For Haque, this was not the first time that he has seen
such a notice, or that it is only during the BJP regime that this was happened. He said, “My
wife Mamtaj was served with such a notice in 2012when I was posted in Chandigarh. We had
to rush to Assam and prove her citizenship. A few years ago, my elder brother’s wife too had
gone through the same trauma and humiliation.”
In Barpeta district, Amina Begum, 47 and her husband Shahzahan Qazi, who is a school teacher
in teacher, have not found their names in the draft of NRC published on July 30. The names of
their three children were out too. Amina and Shahzahan were marked as ‘D-voter’ in 1997 but
they said, they received a notice from the Foreigners’ Tribunal only in 2016. In March 2017,
they were declared Indian citizens. But this change in the status was not reflected in the latest
electoral rolls and they had been kept out of the draft NRC too.
Apart from the above, there are numerous cases of exclusion. It is argued that the poor and
illiterate, mostly Muslims and Bangla-speaking Hindus bore the brunt of these excesses as they
134
have no resources to contest the case and challenge in High Court and Supreme Court. They
have been forced live leave in acute distress and trauma. A large number of families lost their
livelihoods while fighting their cases and are forced to sell their properties in order to bear the
legal expenses.

CITIZENSHIP (AMENDMENT) BILL, 2016


The Constitution deals with the citizenship from articles 5 to 11 under part II. The Constitutio n,
however, did not intend to lay down a permanent or comprehensive law relating to citizens hip
in India. It simply described the classes of persons who would be deemed to be the citizens of
India at the time of commencement of the Constitution and left the entire law of citizen to be
regulated by some future law made by Parliament. In exercise of this power, Parliament has
enacted the Citizenship Act (57 of 1955), making elaborate provisions for the acquisition and
termination of citizenship subsequent to the commencement of the Constitution. The
Citizenship Act, 1955, has been amended in 1986, 1992, 2003, and 2005.

The Citizenship (Amendment) Bill, 2016 (bill no. 172 of 2016) was tabled in both the Houses
of the Parliament on July 19, 2016, during the monsoon session. The bill has sought to insert
the proviso in Section 2 of the Act in sub-section (1), after clause (b) as, “ Provided that persons
belonging to minority communities, namely, Hindus, Sikh, Buddhists, Jains, Parsis and
Christians from Afghanistan, Bangladesh and Pakistan, who have been exempted by the
Central Government by or under clause (c) of sub-section (2) of Section 3 of the Passport (Entry
to India) Act, 1920 or from the application of the provisions of the Foreigners Act, 1946 or any
order made thereunder shall not be treated as illegal migrants for the purpose of this Act”.
Section 2(1)(b) of the Citizenship Act, 1955, defines an “illegal migrant” as a foreigner who
entered India (i) Without a valid passport or other prescribed travel documents, or (ii) With a
valid passport or other prescribed travel documents but remains in India beyond the permitted
period of time. This means that those who are non-Muslims from the said countries came to
India without any valid travel documents or have stayed in India beyond the specified period
of time shall not be treated as ‘illegal migrants’ and hence, cannot be deported.
Another proviso to be inserted in clause (d) of the Third Schedule is as, “Provided that for the
persons belonging to minority communities, namely, Hindus, Sikhs, Buddhists, Jains, Parsis
and Christians from Afghanistan, Bangladesh and Pakistan, the aggregate period of residence
or service of a Government in India is required under this clause shall be read as ‘not less than
six years’ in place of not less than ‘not less than eleven years’”. The bill proposes to reduce the

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number of years from eleven to six required to live and obtain citizenship by naturalisa tio n
non-Muslims. According to a report in Frontline (August 31, 2018), before the introduction of
the Bill, the ruling NDA government at the centre issued two gazette notifications on
September 7, 2015, the Foreigner’s (Amendment) Order, 2015and the Passport (Entry into
India) Amendment rules, 2015, to exempt these six non-Muslim minority communities in
Bangladesh “who were compelled to seek shelter in India due to religious persecution or fear
of religious persecution and entered India up to December 31, 2014” and came “without valid
travel document or with valid travel document but validity expired” from the application of
Foreigners’ Act, 1946, and orders made thereunder in respect of stay in India without such
documents or expiry of those documents and prohibition under Passport (Entry into India )
Rules. The ruling NDA government in the centre has also relaxed long-term visa norms for
these communities. Pratap Bhanu Mehta while writing in the editorial piece in The Indian
Express (May 23, 2018) declared the Bill clearly violates Article 14 of the Constitution. He
further writes, “The direct exclusion of Muslims from being eligible from this pathway under
any circumstances makes the Constitutional form and citizenship communal”.

CONCLUSION
After going through above discussions, it can be argued that the religion based approach of the
ruling government for the determination of citizenship has cast a shadow over the measures for
a permanent solution to the vexed foreigners’ issue in the State. When all the major politica l
parties are focused on their electoral calculus, the NRC issue assumes more politica l
significance. Over the last few years, K V Thomas writes, “the BJP was quite successful in
Assam exploiting these demographic changes, especially in giving the linguistic and ethnic
issues a communal colour. They are known to mainly concentrate on the indigenous Assamese
and the Bengali Hindu vote bank. Since, there are a number of Bengali Hindus also in the 40
lakh, whose names have been excluded from the draft NRC.” By introducing the Citizens hip
(Amendment) Bill, it is argued, the BJP has given message to them that you don’t need to worry
we have the provisions to protect you. Mohan Dutta in an article in The Citizen (July 31, 2018)
stated that without justice, the 40 lakh who are on the verge of being stateless are also victims
of violence where lynching and murders are new normal. He further writes, “Stateless people
are often the targets of a wide range of societal violence, often without access to juridica l
structures and processes. Beyond questioning the techniques of marking citizens however, the
very basis of the Assam Accord needs to be critically interrogated. The idea that citizens hip
can be reproduced as a category to exclude and to legitimise violence needs to be examined.

136
The NRC as a framework, therefore, disproportionately targets poor minorities who have over
generation formed the backbone of economy.” The political mainstreams must take the lead
and prepare the ground so that that the regions geographical location becomes an advantage
instead of stoking nativist sentiments.

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“Assam’s Anxiety.” Frontline, Volume 35, Number 17, August 18-31, 2018, pp. 115–19.
Assam Accord Memorandum of Settlement. Vol. 1985, 1985,
https://assam.gov.in/documents/1631171/0/Annexure_10.pdf?version=1.0.
Baruah, Sanjib. “Non-Citizens and History.” Frontline, Volume 35, Number 17, August 18-31,
2018, pp. 126–29.
Basu, Durga Das. Intoduction to the Constitution of India. Lexis Nexis Butterworths Wadhwa,
2012.
Dutta, Mohan. “The National Register of Citizens And The Politics of Exclusion and Hate.”
The Citizen, July 31, 2018,
https://www.thecitizen.in/index.php/en/NewsDetail/index/4/14538/The-National-
Register-of-Citizens-And-The-Politics-of-Exclusion-and--Hate.
Gouba, O. P. An Introduction to Political Theory. Sixth, Macmillan Publishers India Ltd, 2013.
Home & Political Department Covernment of Assam. White Paper on Foreigners ’ Issue. 2012.
“Indian Express Delhi, Fri, 3 Aug 18.” Delhi, August 03, 2018, pp. 1–2,
http://epaper.indianexpress.com/1761913/Delhi/August-03,-2018#page/1/1.
“Indian Express Delhi, Tue, 31 Jul 18.” July 31, 2018, 2018, pp. 1, 8, 11, 12,
http://epaper.indianexpress.com/1757844/Delhi/July-31-2018#page/1/1.
“Indian Express Delhi, Tue, 7 Aug 18.” Delhi, August 07, 2018, p. 14,
http://epaper.indianexpress.com/1767240/Delhi/August-07,-2018#page/14/1.
“Indian Express Delhi, Wed, 9 Jan 19.” Delhi, 2019,
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Mehta, Pratap Bhanu. “The Seething State.” Editorial Page, The Indian Express, May 23, 23
May 2018.
“Millions in Limbo.” Frontline, Volume 35, Number 17, August 18-31, 2018, pp. 122–25.
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humanity-1851521.html.
“Office of the State Coordinator of National Registration (NRC), Assam.” Government of
Assam, http://nrcassam.nic.in/admin-documents.html. Accessed 14 Aug. 2018.
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The Citizenship Act, 1955.Pdf.
“The Indian Express.” November 19, 19 Nov. 2017, p. 10.
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“Their next Stop.” The Sunday Express, August 5, 4 Aug. 2018, pp. 8–9.
Thomas, K. V. “The Politics of Citizenship: The National Register for Citizens (NRC) in
Assam.” The Hindu Centre for Politics and Public Policy, October 06, 2018,
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D- DOUBTFUL OR DEPRIVED?

- Nasima Sultana Choudhury

Several countries over the years are dealing with the issue of immigration. Illegal immigra tio n
has taken the centre stage in the domestic as well as international politics. The state of Assam
has been in bedlam since 1950s on the issue of illegal immigrant1 . This has manifested itself in
a mass movement known as the Assam Movement or Assam Agitation2 (1979-1985). This
movement, led by All Assam Students Union (AASU) and various others was started to impel
the Government to identify and expatriate illegal immigrants from the land of Assam. The
‘immigrant alien’ was seen as disruptive for the ethno-space of Assam. The issue of illega l
immigrants has led to bloodbath several times. Figures on immigrants in Assam, however, is a
matter of intense political contestation with various sources stating varied figures. The issue
gained significant political concern because of its implication for the electoral processes in
Assam. The anxiety over immigrant figures raised suspicions on various electoral rolls but the
wrath of anger and anxiety for the first time gave way to a prolonged movement, the Assam
Movement around the issue of by-election in 1979 in Mangaldai parliamentary constitue nc y
following the death of the sitting MP. The revision of the voters’ list for the by-election drew
attention to the extraordinary upsurge in the number of voters since the previous election. This
led to the boycott of elections until the names of people were removed who have illega lly
slipped their names into voters list.

In the year 1997, the Election Commission ordered intensive revision of Assam’s electoral rolls
with qualifying date 01-01-1997. As per this order, house to house enumeration was carried on
in the state of Assam. The draft was published on 24-07-1997. This simmered suspicions on
the published voter list. To tackle to this, the letter ‘D’ was marked against the names of those
people who failed to prove that they entered India before March 24, 1971. According to the

 The Author is a Research Scholar at Jamia Millia Islamia.


1 The Centre for Media and Democracy, in an article, “Illegal immigration US” dated August 10, 2008 stated:
“Illegal immigration (also referred to unauthorized or undocumented immigrants) refers to the migration of people
across national borders in a way that violated the immigration laws of the destined country.”
2 This movement spearheaded by All Assam Students Union (AASU) was started demanding the eviction of illegal

immigrants. The movement started in the year 1979 and continued till 1985 with the signing of the Assam Accord.
These years witnessed total breakdown of political stability, imposition of President’s rule, boycotts and trail of
violence.

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Assam Accord3 , people who entered India after March 24, 1971 will not be considered as
Indians and have to be deported to their place of origin. In other words, people who failed to
furnish their citizenship credentials at the time of verification by the officers appointed for this
purpose were marked as ‘D’.

‘D’ connotes that the citizenship status of the elector was doubtful/disputed. On January 5,
1998, the Election Commission barred all persons against whose names ‘D’ was marked in the
electoral rolls from exercising their franchise and contesting elections.

The earlier procedure required the commission to refer all ‘D’ cases to the tribunals under the
IM(DT) {Illegal Migrants (Determination by Tribunal) Act} which were supposed to ascertain
the credentials of the marked voters and submit reports. In 2005, in SarbanandaSonowal v.
Union of India case the Supreme Court has struck down the IM(DT) Act. These cases from
thereon have been referred to new tribunals, Foreigner Tribunals, set up under the Foreigners
Act of 1946.

However, many people who were absent during the revision of rolls or missed the process in
some way or the other due to certain circumstances was also marked as ‘D’ voters, thereby
depriving them of voting rights. There is no guarantee that the cases of ‘D’ voters will be settled
immediately as thousands of cases are still stacked in the tribunal waiting to get clearance.

THE SCAPE OF CONTESTATIONS:

a. Not established by law

In 1997, the Election Commissioner ordered the officials to carry out intensive revision of
electoral rolls in the state of Assam with qualifying date 01-01-1997. As per such order house
to house enumeration was done in Assam. The people were required to furnish their documents
and prove that they were the citizens of this country. Failing to do so, the people were stripped
from all the rights and duties that a citizen of this country gets. From thereupon, the letter “D”
was marked against the name of doubtful citizens. The category was used to create a group of

3 The Assam Accord is a Memorandum of Settlement (MoS) signed between representatives of the leaders of
the Assam Movement and the Government of India on 15th August, 1985 marking an end of the Assam
Movement. A package for the economic development of Assam, including a second oil refinery, a paper
mill and an institute of technology, was also worked out. The central government also promised to provide
‘legislative and administrative safeguards to protect the cultural, social, and linguistic identity and heritage’
of the Assamese people. It also mentions that people who came to Assam on or after 25th March 1971
should be detected and deported to their country of origin.

140
disenfranchised people were not recognised by any state.Our Constitution doesn’t speak of
such a category as ‘D’ voter. The Election Commission introduced this category. The Indian
constitution has not established the category of D voter. It lacks a legal backing and is
ambiguous in nature.

b. Only in Assam

The category of D voter exists only in Assam. This category doesn’t exist in any other corner
of the world.

c. Detention camp and jail are ought to be separate

In an exclusive interview with The Telegraph during his visit to Assam University Kabir, the
39th Chief Justice of India said, "There is a big difference between detention and arrest. The
government can detain a person on mere suspicion. But they can't be kept with criminals or
even under trials in jails. If the suspected foreigners are lodged with hardcore criminals in jails,
it's a gross violation of human rights."(Bhattacharjee, 2015)

Once a person has been declared as a “foreigner” they are to be deported by following
certain procedures. Since this involves the Home Ministry and the External Affairs Ministr y,
it takes time. Till that time, they are to be housed in detention centres. Although Assam has at
present six detention camps, however these are functioning on a makeshift basis and that too
inside jail premises.(Baneerjee, 2016) In Barak Valley, the Central Jail of Silchar has been used
to house such people. Although the government of Assam, in a notification dated April 5, 2010,
declared the central jail in Silchar as a detention camp for a temporary period. The process of
converting the existing jail in Silchar into a detention camp for suspected foreigners under the
Foreigners Act, 1946, continues even after seven years. The government has indulged in
largescale violation of legal and human rights of such suspected foreigners by compelling them
to share space with criminals, convicts and under trial prisoners. ‘D’ voters are not crimina ls
or charged for any offense so they are not to be lodged in jail but rather in detention camps
until their status is determined.

d. Violation of Universal Declaration of Human Rights

Inserting the letter ‘D’ in front a name robs a person of his/her nationality. He /she are
derecognised as an Indian national. The person is barred from exercising his/her voting rights.
This violated the Universal Declaration of Human Rights (UDHR) Article 15 Clause 2.

141
Article15.
(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.4

By disenfranchising ‘D’ voters, they are eliminated from political participation. In a way, their
sense of identity is disrupted by categorising them in a ‘doubtful’ status. They are pushed into
statelessness, with no state recognising them as their citizens. Many people have been declared
so without any prior information or without giving them sufficient time to present their case.

e. Violation of Article 21 of the Indian Constitution

Many people are detained in jails after being declared as “foreigners”5 or a reference is made to
the tribunal for the period of pendency of the trial which is indefinite in violations of Article
21 of the Constitution of India.

Article 21 states that:

“No person shall be deprived of his life and personal liberty except in accordance with
procedure established by law.”

Article 21 has been interpreted to guarantee rights including: rights to prisoners, the right to
legal aid, the right to a speedy trail and the right to claim compensation for the violation of the
rights in Article 21. Furthermore, the expression ‘procedure established by law’ in the article
requires that there must be a valid law justifying an interference with a person’s life or personal
liberty, and it is directed that the procedure provided by law must be strictly followed. The
procedure of tagging names with D is nowhere established by law and arbitrarily making
reference also contravenes due process principle. (Laskar, 2012)

f. A trail of troubles

Reports suggest that 80%-90% cases are forwarded without any basis or preliminary enquiry.
The tribunal has travelled beyond power and provision. Most of the enquiry officers wear an
attitude of negligence. There are cases where people had to languish in jails for an error in names
and address of residence. One homemaker from Silchar had to face harassment because her name
was misspelt.

4 The Universal Declaration of Human Rights is a document adopted by United Nations General Assembly
on 10th December, 1948. The document consists of 30 articles which are considered to be bas ic rights which
every human being is entitled to.
5 According to the definitions stated in the Foreigners Act, 1946 and the Registration of Foreigners Act, 1949,

the term “foreigner” means a person who is not a citizen of India.

142
The lack of awareness has led to the harassment of people. Government has moulded it into a
political issue to stay in power. Despite having necessary documents people are declared as
foreigners. Numerous cases have been reported were people were later found to be citizens of
this country after languishing in jails. This category has become a means to harass people. The
poor are the biggest sufferers. They are not educated enough to understand these lengthy
procedures or to hire lawyers to represent their case. Cases are referred to tribunal haphazard ly
and they are deprived from proper representation.
In spite of having long standing documents 8-10 members in a family are accused without
probing a proper inquiry. Before forwarding a case to the tribunal, the voter ought to be given
sufficient time and opportunity to prove their bona-fide.

g. No repatriation treaty with Bangladesh


Repatriation means to send someone to their own country. India, although has enacted various
laws, set up tribunals to detect and deport foreigners. But it has not signed any repatriation treaty
with Bangladesh to send back the people who are declared as foreigners who came from
Bangladesh. Without treaty, Bangladesh is not bound to accept people and accommodate them
on its soil.
The Supreme Court has already directed the Union to sit into negotiation table with Banglades h
to chalk out the cumbersome process of deportation. This can be done only when both the parties
agree to do so. Otherwise India is producing a group of “unrecognised people” who are fated to
languish in uncertainty. But the Modi led government has not taken up the case with its
counterpart. As recently as October 2017, Bangladesh Information Minister HasanulHaqInu told
an Indian journalist that in the past 30 years there has been no unauthorised migration from
Bangladesh to Assam. He emphasised that no Indian government has ever complained of this.
While issues such as terrorism, smuggling, drug and human trafficking are routinely discussed
and the two governments have agreed on the modalities of cooperation on those matters, illega l
migration has never featured in official discussions between the two governments. 6
India and Bangladesh hasn’t entered into agreement where Bangladesh will take back the people
declared as foreigners. Without agreement all these efforts of detection and deportation is absurd

h. Burden of Proof

6 Baruah, Sanjib: Stateless in Assam, The Indian Express, January 19, 2018.

143
“The right to a free trail is a fundamental human right to which all accused persons are entitled.
The major objective of this is to provide fair trial. The criminal justice system presumes that an
accused is innocent until the prosecution has proven the person’s guilt beyond reasonable doubt.
The burden of proof lies on the prosecution to show that the accused is guilty-the defence must
only attempt to disprove the accusations made by the prosecution.”(Case, 2010)
After the scrapping of IMDT Act, the Foreigner Tribunals has been working under the Foreigners
Act, 1946. This reverses the burden of proof upon the accused to prove his/her citizenship. It thus
stands against the values and motive behind the presumption of innocence. The person is
considered to be an offender from the starting and has to prove his/her innocence. It dilutes the
concept of neutrality. The person has to strive to prove that he/she is a citizen of India otherwise
one is declared a foreigner. In many cases, the judges pass ex-parte judgement without even
listening to the concerned person. Many people are not economically stable enough to hire a
lawyer to represent him/her. There are also cases where one doesn’t receive notice leading to
his/her absence from the tribunal.

CONCLUSION:-

The study establishes that marking ‘D’ voters is leading to human rights violation. The letter
‘D’ if marked before an individual’s name takes away their citizenship by disenfranchis ing
them. It casts doubtfulness on their nationality and their identity as an Indian national is
scrapped off. Not being recognised as Indians renders the people stateless and stands against
the Universal Declaration of Human Rights Article 15. Statelessness renders a person
vulnerable and dismisses their rights. They become people with no land. D leads to a trail from
the harassment faced by the ‘D’ voters right from hiring a lawyer, lengthy paper works to
spending nights in jail cum detention camp. They have to undergo all these only to prove
themselves as Indian Nationals. If failed to do so due to many circumstances, they are supposed
to languish behind the bars or waiting to be deported without any treaty to facilitate that.
Moreover, lack of awareness and education also has a bearing on the vulnerability of people
marked as ‘D’ voters.

This system overrides the Indian Constitution and has vested certain powers on officials who
cannot be questioned for their actions. The study shows how certain people have misused this
power. This has further aggravated the situation of ‘D’ voters whose fate is decided by the
officials.

144
Lastly, this mechanism of identifying foreigners has endowed the Government machinery with
powers to carry the task while the other parties involved have none to address their grievances
or are not assured any protection. Instead they undergo a row of deprivations and rightless.
Their fate solely lies on the officials involved in this process, thus making one party the sole
negotiator. This is leading to scraping of human rights.

Whether one is considered a foreigner, illegal immigrant or an Indian, everyone is entitled to


basic human rights.

“To be stripped of citizenship is to be stripped of worldliness; it is like returning to a wilderness


as cavemen or savages… A man who is nothing but a man has lost the very qualities which
make it possible for other people to treat him as a fellow man… they could live and die without
leaving any trace, without having contributed anything to the common world.”
-Hannah Arendt, The Origins of Totalitarianism(Achiron, 2005)

BIBLIOGRAPHY:-
Achiron, M. (2005). Nationality and Statelessness. In M. Achiron, Nationality and
Statelessness (p. 7). Inter-Parliamentary Union with the United Nations High Comnmissio ner
for Refugees.

Baneerjee, C. (2016, May Friday). eclectic Northeast. Retrieved April Saturday, 2017, from
eclecticnortheast web site: https://eclecticnortheast.in/largest- foreigners-detention-centre- in-
assam-in-the-pipeline/

Baruah, S. (2015). India against itself. In S. Baruah, India against itself (p. 46). New Delhi:
Oxford University Press.

Bhattacharjee, N. (2015, September Thursday). The Telegraph. Retrieved April Saturday,


2017, from The Telegraph web site:
https://www.telegraphindia.com/1150903/jsp/northeast/story_40457.jsp#.WOvn99J97IU

Borooah, V. K. (2013). The Killing Fields of Assam. Economic and Political Weekly, XLVIII,
43-52.

Borooah, V. K. (2013). The Killing Fields of Assam. Economic and Political Weekly, XLVIII,
44-45.

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Case, S. A. (2010). Handbook of Human Rights Documentation Centre. In S. A. Case,
Handbook of Human Rights Documentation Centre (p. 88). New Delhi: Oxford Univers ity
Press.

Laskar, O. (2012, June Tuesday). RightSpeaks. Retrieved April Saturday, 2017, from
RightSpeaks web site: http://rightspeaks.blogspot.in/2012/06/deportation- illegal- foreigner s-
human.html

Mardell, M. (2016, November Thrusday). BBC NEWS. Retrieved April Saturday, 2017, from
BBC NEWS Web site: http://www.bbc.com/news/electio n- us-2016-37922961

Patnaik, J. (2004). HUMAN, RIGHTS : THE CONCEPT AND PERSPECTIVES : A THIRD


WORLD VIEW. The Indian Journal of Political Science, 65, 499-514.

Patnaik, J. (2004). HUMAN, RIGHTS : THE CONCEPT AND PERSPECTIVES : A THIRD


WORLD VIEW. The Indian Journal of Political Science, 65, 499-514.

Roy, A. (2010). Introduction: Enframing the Citizen in Contemporary Times. In A. Roy,


Mapping Citizenship in India (pp. 2-32). New Delhi: Oxford University Press.

Sitharamam Kakarala, D. P. (2012). INDIA AND THE CHALLENGE OF STATELESSNESS.


Delhi: National Law University, Delhi.

Tymstra, J. H. (1993). The Function of Qualitative Research. Social Indicators Research, 29


(3), 291-305.

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THE CITIZENSHIP (AMENDMENT) BILL, 2016: THE CONFLICT BETWEEN
CONSTITUTIONAL MORALITY AND MORALITY OF THE POPULAR
MAJORITY

- Pranay Jalan

ABSTRACT
The Citizenship Act, 1955 was enacted to provide for the acquisition and determination of
Indian citizenship. The Citizenship (Amendment) Bill, 2016 for the first time, proposes a
divide on religious grounds to the Citizenship Act, 1955 which was truly secular since its
enactment in the early years of Independence. The Bill exempts persons belonging to minor ity
communities namely: Hindus, Jains, Sikhs, Parsis, Christians and Buddhists from Afghanis ta n,
Bangladesh and Pakistan from being deemed to be ‘Illegal Migrants’ under the said Act. This
creates a religious divide which permeates through the secular moral fabric of the Constitutio n.
The popular belief which exempts these illegal migrants belonging to minority communities
for having fled religious persecution in their respective countries, cannot be allowed to be
substantiated as a popular moral overriding the morality of that of the Constitution.
Constitutional Morality embraces the constitutional values that are at the heart of our
Constitution. This principle entails within its gamut notions such as the rule of law, ensuring a
balance between fundamental rights and directive principles of the state policy, respecting
multicultural values and opinions, secularism and social justice. In upholding the supremac y
of the Constitution, these values act as a guiding beacon while safeguarding the Constitutio n
against threats that might arise in the nation-building process, thus, paving way for good
governance.
The notion of egalitarian citizenship pre-necessitates integration and universalization by
guaranteeing equality before the law as well as equal protection of laws. With the onset of the
Citizenship (Amendment) Bill, 2016 the State of Assam is torn in conflict with the indige no us
communities protesting against the said Bill since it poses a threat to the ethnicity and
demography of Assam. The Bill may jeopardize the ongoing National Register of Citizens of
India (NRC) updating process. The provisions of the Amendment Bill are in discord with the
provisions of the Assam Accord, 1985 which aims at protecting these indigenous communities
from the influx of illegal immigrants. Harboring a safe passage to The Citizens hip
(Amendment) Bill, 2016 has thus, left the lives of 40,07,707 persons whose names have not

 The Author is an undergraduate student at Gujarat National Law University.

147
appeared in the final draft of the NRC, dangling by the rope of an immoral legislative action.
The function of a secularist regime is to protect and promote the multicultural interests in the
truest sense of democracy. The interests of the indigenous communities of Assam are based on
the moral values that the Constitution safeguards from being annexed by legislative action.
Keeping in mind that secularism is one of the tenets of the basic structure of the Constitutio n
and that the legislature exercised its powers in contravention to the provisions of the Assam
Accord, 1985, the paper rules out any form of social or political anathema and seeks to examine
the paradigms of public policy and constitutional morality at stake, prior to the enforceability
of the bill as The Citizenship (Amendment) Act, 2016.
INTRODUCTION
As noted by Aristotle, there is a fine line of difference between what constitutes to be moral
and immoral. A person possessed of a good character will be more virtuous than a person who
derives justice from the plain reading of the law as the law may preclude decency. Therefore,
given the diversity of human experience, it may be impossible for the law to realize true
decency in all circumstances.1 However, the morality or immorality of the law can be gauged
from human experience in the manner that such moral enormities cannot bind the human
conscience even if instituted through well-crafted laws.
The tyrannical use of power can, however, be used to achieve the ends through the means as
per its own discretion, even if its immoral, therefore, examining the law by pegging it to a
Supreme authority is imperative. If one is to examine the institution of slavery as overriding
basic constitutional provisions, one would find that the mere force of a legal enactment was
sufficient to do something that would otherwise be immoral and repugnant to the right to live
with dignity. As a result, oppressive laws that undermine the public morality can be subjected
to the citizens if the constitutional safeguards were to be undermined.
To establish the Citizenship (Amendment) Bill, 2016 as an oppressive law serving to be a
conflict between constitutional morality and public morality, we shall first examine the
emergence of the Assamese community as an ethnic majority through statutory provisions that
aims at preserving the sentiments reflected in upholding public morality. As a result, public
morality comes to be adequately protected by constitutional values. Secondly, as the proposed
Amendment Bill opens up a framework for the inclusion of constitutionally immoral policies,

1 BRUCE P. FROHNEN & GEORGE W. CAREY, CONSTITUTIONAL MORALITY AND THE RISE OF
QUASI-LAW 46 (Harvard University Press 2016).

148
it encroaches upon the public morality as established in the previous section. Lastly, with the
inclusion of the changes as proposed in the Amendment Bill, the basic structure of the
Constitution is undermined.
I. THE EMERGENCE OF ASSAM AS AN ETHNIC STATE
a) Reaching Agreements in a State of Crisis
Popular morality is based on “shifting and subjecting notions of right and wrong” and
constitutional morality is derived from “constitutional values”. In the case of an incongr uity
between public morality and constitutional morality, the values of the Constitution shall
prevail.2 For the purpose of upholding the popular morality of the citizens of Assam, the
recognition of the Assamese majority as an ethnic community is of great importance.
Ethnicity is a sense of identity or a feeling of belonging to a particular ethnic group. In addition
to the subjective self- consciousness, ethnicity or ethnic identity also involves a claim to status
and recognition either as a superior group or as a group at least equal to other groups. 3
It is pertinent to note that ethnicity is at the confluence of social, political and juridica l
dialogues. In formulating policies or promulgating judicial pronouncements, the legislature or
the judiciary cannot isolate itself from the values that are embedded in the society. Rather, it
can be argued that their legitimacy is forged from societal values delineating what is morally
acceptable in a society of unequals. As observed by Holmes, “Values are the life-blood of law;
a law is the witness and external deposit of our moral life”. 4
In the context of citizenship laws, migration dominates the anxieties around which discourses
of the crisis in citizenship are woven. 5 Such a crisis often witnesses a conflict between the
concerns to preserve ethnic values and the morality of the legislature towards establishing
safeguards. Citizenship, therefore, emerges as a momentum concept having the ability to
expand and deepen itself by undertaking integrative and universalizing practices in dealing
with the ‘crisis in Citizenship’.6 However, despite claims of citizenship as a dynamic and

2 Naz Foundation v. Govt of NCT Delhi &Ors, (2009) 160 DLT 277 (Del).
3PAUL R. BRASS, ETHNICITY AND NATIONALISM, THEORY AND COMPARISON 14 (Sage
Publications 1991).
4 OLIVER W. HOLMES, THE COMMON LAW 6 (Harvard University Pres s 2009).
5 ANUPAMA ROY, MAPPING CITIZENSHIP IN INDIA 23 (Oxford University Press 2010).
6 Id. at 27.

149
inclusive process, the theory of categorization and apprehension towards migration is
engrained in the Citizenship laws of the country.7
The question of ethnicity in Assam has always been a debated issue since the time of partition
of the territory of East Pakistan (modern-day Bangladesh) as hordes of illegal migrants crossing
over the porous border continued to throng the demography of Assam. This problem was
recognized by the Central Government way back in 1950 when Parliament passed the
Immigrants (Expulsion from Assam) Act of 1950 for the detection and deportation of illega l
migrants hoarded in Assam.8 Suffering from fallacies in procedure and implementation the Act
was put into disuse by 1957 as immigration continued unfettered and unabated.
In the year 1971, the issue aggravated in the wake of the liberation war in Bangladesh as several
lakhs of Hindus and Muslim refugees fled to Assam. This was just the beginning of lifting the
political veil which later took the form of the Assam Movement.
Over the years that followed after the culmination of the war, the demands of the Assamese
community to attain parity with other nationalities was isolated from the political air. However,
the issue attained a centre-stage at the 1978 Mangaldoi Lok Sabha Election, which witnessed
a surge in the number of prospective voters, thereby instilling a sense of apprehension towards
the issue of illegal influx. The events that followed took the form of The Assam Agitatio n
which emerged as a popular movement against illegal immigrants in Assam. 9 The Agitatio n
witnessed rampant protests towards the administration of the then ruling party as a result of
their failure to deal with the issue of illegal immigrants in Assam.
It was a portrayal of public sentiment against the illegal influx from Bangladesh which risked
the identity of the indigenous community. As put by the Assamese Author Sanjib Baruah, the
presence of large numbers of 'foreigners' instilled a sense of unease at the change in the
demography, language, and access to resources, primarily land and employment, around which
powerful popular movement wove itself.10
The original community experienced a differential treatment being meted out to them through
this demographic erosion. In the wake of the Assam Movement, this difference was translated

7 Id.

8 The Immigrants (Expulsion From Assam) Act, 1950, No. 10, Acts of Parliament, 1950 (India).
9SANJIB BARUAH, INDIA AGAINST ITSELF: ASSAM AND THE POLITICS OF NATIONALITY115
(University of Pennsylvania Press 1999).
10 See supra note 5, at 27.

150
in terms of linguistic and cultural distinctiveness, moving towards the concerns over unequal
development and discrimination emerging from differential treatment in the national-politic a l
field. If the former was grounded in issues of an Assamese ethnic identity11 , the latter chose to
prioritize issues of development and access to resources. 12
The Agitation, was, however, brought to a stall with the Memorandum of Settlement between
the leaders of the agitation and the Central Government. The Assam Accord signed on 15th
August 1985 was an agreement between the leaders of the agitation and the representatives of
the Government of India. The Accord, thus, shifted the issues of implementation of citizens hip
laws and misappropriation of Citizenship rights from the back-rooms of political horse-trading
into the public domain.
b) Putting forth a Differentiated Citizenship to Combat the Crisis
As the Assam Movement that lasted for six years between 1979-1985 gathered force amongst
the Assamese community, the sentiment that was reflected in the movement became a major
highlight of the Citizenship (Amendment) Act, 1986.
Following the terms of the Accord to ensure constitutional and administrative safeguards in
protecting the cultural and linguistic identity of the Assamese community13 , the Citizens h ip
(Amendment) Act of 1986 pushed its way thereby granting due recognition to a sixth
category of Citizenship which was to exclusively apply to Assam. 14
While the Amendment of 1986 opened up a framework for the universalization of citizens hip
by carving out a space for addressing the concerns around Citizenship in Assam, the notion
of migration came to be associated explicitly with illegality. This proved to be in contrast to
its age-old interpretation as a mere condition of passage into citizenship at the time of the
commencement of the Constitution of India. 15 This portrayed the attitude of the legislature
to pave way for an inclusive notion of citizenship.
The Assam Accord as a sentimental epilogue revolving around the concerns of ethnic ity
proposed the trend for a model of citizenship that was different yet equal. This differentia ted
model of citizenship was vested in universalism by taking into account the specific needs of

11 Id. at 98.
12 Id. at 99.
13 The Assam Accord, 1985, Cl.6, Memorandum of Settlement, 1985 (India).
14 The Citizenship (Amendment) Act, 1986, § 6A, No. 51, Acts of Parliamen t, 1986 (India).
15 See supra note 5, at 96.

151
people belonging to groups which were disadvantaged at the peril of generalized applicatio n
of the standards of citizenship.16
The Citizenship Amendment Act, 1986 affirmed this notion of differentiated citizenship in
conferring deferred citizenship to those who arrived between 1 st January 1966 and the midnight
of 25th March 1971 leaving their legality at the discretion of the Tribunal set up under the
Foreigners Act, 1946. While the legality of those who arrived after 1971 was to be detected
and deported following the Illegal Migrants (Determination by Tribunal) Act, 1983. 17
Even though the IMDT Act transgressed the reasonable nexus in seeking the object of the Act
and was set aside as unconstitutional18 , if one were to go behind the objectives of the Act, one
would find that the IMDT Act came in the form of a reassurance in its exclusive applicability
to the State of Assam in dealing with the issue of illegal influx at a time when the Foreigners
Act, 1946 contained similar provisions.
The IMDT Act contained provisions for the identification and deportation of illegal migrants
and to restore peace and harmony amongst the indigenous communities. Therefore, the Act
even though unconstitutional; the legislative intent of extending a differential treatment to deal
with the apprehensions of the Assamese community echoes in its codification.
Thus, the statutory provisions enumerated above with its exclusive application to Assam put
forward the theory of a differentiated citizenship, proving its allegiance to the morality of the
Assamese community.
II. THE CITIZENSHIP (AMENDMENT) BILL, 2016 AS OPPOSED TO
CONSTITUTIONAL MORALITY
a) The Moral Forbearing of the Amendment Bill on The Citizens of Assam
“The issue of unabated influx of illegal immigrants in Assam has resulted in a noticeable
change in the demographic pattern of the State and has reduced the Assamese community t o a
minority. Graver concerns shall follow pertaining to National Security if the matter goes
overlooked”.19

16 Iris
M. Young, Polity and Group Difference: A Critique of the Ideal of Universal Citizenship, 2ETHICS 99,
250-274 (1989).
17 See supra note 14.
18 SarbanandaSonowal v. Union of India, AIR 2005 SC 2920.
19 Governor of Assam, Report on Illegal Migration into Assam, 1 (1998).

152
The Apex Court has reiterated the issue of national security in Assam while observing that the
concern is not of illegal migration but that of external aggression and internal disturbance that
ensues on account of large scale illegal migration of Bangladeshi nationals. Having regard to
the Constitutional mandate in Article 355 20 the Court held that is the responsibility of the State
to take measures for this purpose.21 Following this Supreme Court directive, the process of
NRC (National Register of Citizens) was expedited to deal with the ‘influx of illegal migrants
into the State as an act of external aggression’.
Aiming to protect the social, political and cultural identity of legitimate citizens of Assam, this
move came almost after 30 years from the drawing up of the Assam Accord in 1985, which
proposed safeguards in order to ensure democratic citizenship based on the realization of rights
of the citizens in the truest sense.
A democratic citizenship can be ensured when the persons forming a part of the community
mutually recognize and frame rules, and consent to be governed by such rules vesting the power
in a political sovereign.22 The Assamese community in expressing its concerns towards the loss
of political rights due to the eroding communal identity vested their confidence in the Central
Government through the Memorandum of Settlement, Assam Accord, 1985 which was
couched in a language that made a promise of ‘constitutional, legislative and administrative
safeguards’.
According to sociologist T.H. Marshall, a democratic citizenship is not solely based on politica l
enfranchisement, but it relies on ensuring equality through granting equal civil, social and
political rights.23 Prior to the passage of the impugned bill, the Passport (Entry into India)
Amendment Rules, 2015, extended the cut-off date from 25th March 1971 (as per Assam
Accord) to 31st December 2014 for the detection of deportation of migrants belonging to
religious minorities.24
Based on the Citizenship Act, 1955, the NRC process in its final stage of completion sifted out
the names of as many as 40,07,707 persons who could not establish their presence before the
midnight of 25th March 1971. The NRC as a tool to grant equal political and civil rights to

20 INDIAN CONST. art. 355, § 1.


21 See supra note 18.
22 ANUPAMA ROY, OXFORD INDIA SHORT INTRODUCTIONS: CITIZENSHIP IN INDIA 13 (Oxford
University Press 2016).
23 Id. at 12.
24 G.S.R. 685 (E) and G.S.R. 686 (E), Gazette of India, September 7, 2015

153
genuine citizens of Assam prescribed the cut-off year as 1971. It had been successful in
disenfranchising dubious or ‘D-voters’ for alleged lack of proper citizenship documentation as
almost 2.48 lakh people got the D-voter tag during the NRC process. There is a huge potential
of identifying D-voters through the NRC process once the process of filing claims by the
ambiguous persons is over. This could only be possible if the amendment to the notification is
declared to be ultra-vires the Object of the Act, therefore avoiding any scope for such D-voters
to pass off as legitimate citizens after a certain period of naturalisation.
Since, the NRC pushes for an electoral roll comprising of only genuine citizens, the proposed
bill which encompasses the religious minorities, shall also have the effect of hijacking the list
of voters which may further dilute the political rights of the Assamese citizens. Thus, this is in
clear violation of Article 32525 of the constitution which bars the inclusion into electoral rolls
on religious grounds.
Although the pool of migrants sifted out in the process have been granted the opportunity to
file their claims, a large number of them who could not otherwise establish their claims and
were therefore excluded from draft NRC shall be rendered eligible to take shelter under the
impugned notification and subsequently become legitimate Indian citizens at the cost of the
ethnic identity of the original inhabitants of Assam.
The Apex Court has held that the notion of right under Article 21 of the Constitution, the right
to life is wide enough to include not only the right to lead a healthy life so as to enjoy all
faculties of a human body in their prime condition but it would even include the right to
protection of a person’s tradition, culture, heritage and all that gives meaning to a man’s life. 26
Further, Article 29(1) of the constitution ensures the citizens residing in the territory of India
the right to preserve and conserve their own distinct language and script of culture. 27 As noted
by Durga Das Basu, the term ‘its own’ means the regular language used by an individual and
does not bar other citizens or persons belonging to other religion or community from using it. 28
Part III of the Constitution is transcendental, inalienable and primordial and therefore forms
the soul of the basic structure of the Constitution. To diminish the promises under this Part of

25 INDIAN CONST. art. 325, § 1.


26 Sunil Batra v. Delhi Administration, (1978) 4 SCC 409.
27 INDIA CONST. art. 29, § 1.
288 DR. DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA 132 (Lexis Nexis
Butterworths Wadhwa- Nagpur 2008).

154
the Constitution is to deny individual justice to the civilized societies of Assam. The moral
forbearing of the proposed amendment, thus, encroaches upon the inalienable rights of the
citizens of Assam by dissolving the ethnic community.
b) The Proposed Amendment as Opposed to Secularism
The Preamble to the Constitution grants a Secularist identity to the sovereign that is India.
Despite the fact that the word secular took a more material form after the Constitution (42 nd
Amendment) Act, 1976, it is undisputed that India was a truly secular country since its
inception as a sovereign since the Freedom of Religion enshrined in Part III of the Constitutio n
upheld this Secularist identity.29
The partition of India in 1947 accompanied the creation of two independent dominions, India
and Pakistan (comprising of modern-day Bangladesh). While India became a secularist state,
Pakistan and later Bangladesh chose to tread on a theocratic path. Theocracy, thus, proved to
be a fertile ground for these nations to mete out religious persecution to religious minorities
which continued till date.
In encompassing the woes of these religious minorities who allegedly entered the territory of
India, the Citizenship (Amendment) Bill, 2016 proposes a religious divide by exempting illega l
migrants who are Hindus, Buddhists, Jains, Sikhs, Parsis and Christians from the ambit of
illegal migrants under the current provisions. 30 The beneficiaries of this proposed provision,
i.e. the illegal immigrants, shall qualify for citizenship by the virtue of being a religio us
minority in their respective countries31 , which goes against one of the basic tenets of the Indian
Constitution, i.e. Secularism.
In identifying the relationship between religion and state, the Constitution does not make a
rigid distinction between the two and it can be ascertained from its permissive attitude in
upholding the conscience and dignity of every religion equally. The Constitution excludes
secular activities such as lawmaking and judicial process from the influence of religion and
practices which derogate public order, morality, and health and are against the principles as
embodied in the fundamental rights.32

SUBRAMANIUM, CONSTITUTIONA L MORALITY – IS IT A DILEMMA FOR THE STATE,


29 GOPAL

COURTS AND CITIZENS? 66 (CPS 2016).


30 The Citizenship (Amendment) Bill, 2016, § 2, No. 172, Acts of Parliament, 2016 (India).
31 Id.

32 Bommai v. Union of India, AIR 1994 SC 1918.

155
The language of the proposed amendment goes against the secular principles embedded in the
Constitution as only specific communities are included for granting citizenship while excludi ng
a particular community. The amendment, therefore, encourages the minorities of the
neighbouring countries to illegally migrate to India and get citizenship on a stay of six years.
This amounts to a very liberal invitation to those people to cross the border flouting the
provisions of the Foreigners’ Act.33
In creating this communal divide on the grounds of religion, the bill shall prove to be highly
inimical to the indigenous people of Assam and the federal structure of the State. Several
reports have claimed the population of 40,07,707 excluded from the final draft of the NRC to
comprise of a 50-50 composition, that is an equal number of Bengali Hindus and Muslims.
Therefore, the basis of classification in defining a genuine Assamese identity is unreasona ble
as the move shall witness an equal number of the otherwise ineligib le Bangladeshi Hindus
qualifying for a legitimate Assamese identity by enforcing this inclusive yet constitutiona lly
flawed policy.
The proposed enactment overlooks the fact that while the Ahoms strengthened the foundatio n
of the Assamese language and culture, the Muslims saved the foundation of the same from
every danger or threat. The Muslims accepted the Assamese language and started establishing
schools and colleges that led to the emergence of a multi-cultural diversity in the State.34
This move by the Central Government is fuelled by a political agenda. The proposal of a Bill
inclusive of religious minorities served to be a moral plank of the ruling national party in the
Assam State elections. It has been observed by the Supreme Court that any party or
organisation which seeks to fight the elections on the basis of a plank which has the proximate
effect of eroding the secular philosophy of the Constitution would certainly be guilty of
following an unconstitutional course of action. 35
In the words of the great statesman-philosopher Dr. Radhakrishnan:
“Being a secularist State, the country shall not identify itself with nor shall be controlled by
any particular religion. No religion should be accorded special privileges for that would be a
violation of the basic principles of democracy. This view of religious impartiality shall ensure
that no group of citizens arrogate to themselves rights and privileges that it denies to others.

33 Lok Sabha, Report of the Joint Committee on The Citizenship(Amendment) Bill, 2016, 21 (2018).
34 ShahiuzZaman Ahmed, Identity Issue, Foreigner's Deportation Movement and Erstwhile East Bengal
(Present Bangladesh) Origin People of Assam, 67IHC, 626-627 (2006).
35 See supra note at 30.

156
No person should suffer any form of disability or discrimination because of his religion but all
alike should be free to share to the fullest degree in the common life.” 36
Secularism forms an integral part of the basic structure. Therefore, outright rejection of a
Muslim community as the absolute other and the acceptance of a multi-diverse community by
virtue of them being a religious minority is both publically as well as constitutionally immora l
because it overrides the promise of an Assamese identity and permeates the basic structure of
the Constitution. Therefore, given the facts of the situation, a policy which proposes a
communal divide is deemed to be negated by the Constitutional Principles.

36 Dr.S Radhakrishnan, The Report of The University Education Commission, 1 Ministry of Education:GoI, 257-
259 (1963).

157
III. CONCLUSION
Constitutional Morality is an indispensable condition for ensuring harmony between the
practices of the State and the beneficiaries subjected to such practices. The Citizens hip
(Amendment) Bill, 2016 suffers from severe fallacies on the grounds of morality and public
considerations. The Bill undermines the rule of law in its nomenclature as the illegal migrants
shall be incentivised to explicitly engage in illegal activities that were once clandestine. As the
proposed Amendment renders the illegal immigrants to be legal, they will be immune to
deportation throughout the naturalisation period at the end of which they will be rewarded with
a status equal to a legitimate citizen of the country. Although their names shall not appear on
the electoral rolls before the expiry of this period, they might continue to fraudulently acquire
identity cards and voting rights in a similar manner which the State of Assam has endured in
the recent past.
In addition to national security, the moral threat that the Bill poses to the functioning of the
country as a democracy shall not be overlooked. The far-reaching implications of the proposed
enactment shall render the concept of India as welfare-state to be dysfunctional. Thus, the
transition of the Bill into an Act shall prove to be a constant source of conflict as it imbala nces
the relationship between the diverse perspectives of public and constitutional morality which
would otherwise be in harmony if the Bill was to be enacted while incorporating these moral
considerations.

158
CITIZENSHIP LAWS IN INDIA: PROGENY OF IDEOLOGICAL POLITICAL
RHETORIC AND ITS IMPLICATIONS ON REFUGEES

- Prathiksha Chandrasekhar Ullal and Harita Ramachandran

ABSTRACT

Citizenship of a particular country not only carries with it a sense of identity but it also proves
to be a launch pad for the assertion of one’s rights. With growing intolerance towards various
groups, religions and ethnicities that can be witnessed on a global level, citizenship laws almost
serve as the social lens through which we can understand the perceptions of people. It is not to
be forgotten that politics play a major role in the arena of citizenship laws. With global leaders
starting from Adolf Hitler to Donald Trump, using the political rhetoric to internalize their
ideals in the minds of the people they govern regarding various issues like ethnic ity,
naturalization, illegal immigrants, citizenship issues continue to be dynamic and relevant. In
the Indian context, the framers of the Constitution envisioned the future for an independent
India which ensures dignity of the Individuals by resting such an ideal on the three pillars of
liberty, equality and fraternity. The citizenship laws in India have recently come under a heavy
load of criticism for the exclusion of certain communities, religions etc. these legislative
changes go against the ideals such as secularism, unreasonable classification which have been
enshrined in our Constitution. Tolerance and harmony has been the guiding spirit behind the
Constituent Assembly as they have tried to incorporate a secular and inclusive set of princip les
and provisions in the Constitution. The change in the perception regarding these ideals
highlights a significant change in the contemporary social conception which has a lot to do
with the political scenario as well. This paper seeks to highlight the political ideologies that
give a strong indication of the legislative intent behind the present citizenship laws around the
world. The paper then compares and contrasts the citizenship laws around the world influe nced
by such political rhetoric. The paper further delves into the depths of the issue by analysing
how to remedy their discriminatory stance with respect to the emerging refugee crisis which is
heavily linked to their religion. The central focus of this paper however rests on the recent
amendment to the citizenship laws in India and how it goes against the core tenets of
constitutional morality set forth by the makers of the constitution. This is particula r ly
dangerous for the visions of the secularism in India and the harmonious co-existence of

 The Authors are Students of Christ (Deemed to be University), Bangalore.

159
religions in the country. This paper also analyses various refugee laws both domestic laws and
international treaties to analyze the approach adopted towards refugees and its effects on
identity and citizenship laws. This paper also highlights the possible causes of xenophobic
tendencies as one of the causes for Brexit and seeks to link it to the contemporary situations to
complete analyze the situation and to examine whether political rhetoric played a role in this
case as well. The main focus however shall be on the Indian citizenship laws and what could
possibly neutralize the effects caused by the recent amendment and possible recourses to
maintain status quo.

Keywords: Political Rhetoric, Constitutional Morality, Xenophobia, Brexit, Refugee,


Secularism

INTRODUCTION

The central theme of contemporary political theory still revolves around the complex nexus
between the state and its citizens. It is pertinent to understand the notion of a State from a
historical development of thought process to appreciate its subsequent evolution. Zeller
observes that ‘the politics of Aristotle is the richest treasure that has come down to us from
antiquity and the greatest contribution to the field of political science that we possess’. 1 Plato
and Aristotle both conform to the idea that a State has a natural and organic origin, which is
quite divergent to the beliefs of the Sophists who gave it a connotation of a conventional and a
historical institution.2 Citizenship flows from the State and their relationship is governed by
certain laws made to regulate their effective working in the society. Aristotle defined State as
an institution composed of people who can be rightly called as citizens who actively participate
in the functions that are carried out by the State. 3 The State and the citizens are often connected
by a vital link constituted by political rhetoric which in simple terms is a means of persuasive
communication. Aristotle has also emphasized on the three ideals on which political rhetoric
rests- Logical argumentation (Logos), use of the emotion to invoke and elicit support (Ethos)
and by means of tending to believe the statements due to the credibility of the speaker
(Pathos).4 Political rhetoric is often an indispensable tool in ascertaining the stance of various
governments on a number of issues- particularly with respect to citizenship. The media plays

1 Charles Howard Mcllwain, The Growth of Political Thought in the West: from the Greeks to the end of Middle
Ages, at 50-51(1932).
2 J. C. Johari, Political theory and Socio-Political Philosophy, at 286 (2015).
3 id. at 292.
4 Anthony F Arrigo, What Aristotle can teach us about Trump’s rhetoric, The Coversation, (January 23, 2019,

9.00 AM) https://theconversation.com/what-aristotle-can-teach-us-about-trumps-rhetoric-107761.

160
an important role in transmitting this rhetoric thereby making politics a participative process.
The three major effects on how people perceive information can be categorized into – Agenda
setting, priming effect and framing. 5 The media in the agenda setting phase, influences people
by choosing what to cover and limiting public knowledge only to what has been covered by
media. The priming effect focusses on the agenda which relates to a particular politica l
personality by re-emphasizing the statements made by the person through eye-catching
headlines which sends out a clear message in making the person remain in the memory of
people. The framing effect is based on presenting the problem in different positive ways leading
to a cognitive bias to make a choice of one over the other.6 These communication technique s
are often used by politicians who use rhetoric as a means of influencing people and convinc i ng
people by use of the components of ethos, pathos and logos effectively.

The concept of citizenship is often linked to politics and tends to be a political pawn which
can be influenced by political rhetoric. The paper will deal with how political rhetoric has had
a bearing on various concepts like xenophobia in Britain, ethnic outbidding in America and
ethnic cleansing in Germany. All these have either been influenced by citizenship or has
molded the perception of citizenship in their respective countries. The paper will further
examine the Indian experience of dealing with refugees by taking the instance of the Rohingya
crisis and how the political rhetoric and votebank politics has led to a humanitarian concern for
thousands of Rohingyas who have been rendered ‘stateless’. The paper further takes a turn on
closely examining the recent amendment to the Citizenship Bill which seems to be exclusio nar y
in nature. The conclusion will summarize the entire discussion on the interplay between
political rhetoric and citizenship and highlight the need for a more inclusive approach to
citizenship to ensure the prevention of gross human right violations

CONCEPT OF CITIZENSHIP SKEWED TO SUIT POLITICAL RHETORIC: THE


EXAMPLE OF UK, USA AND GERMANY

(a) The close nexus between Brexit and Xenophobia

“I want my Country back and take back control”, was one of the campaign slogans during the
referendum that took place in Britain wherein the people of Britain voted to leave the European
Union.7 Theresa May, the present Prime Minister of Britain in her speech stated that “if you

5 David L Heflert, Political Communication in Action: From theory to Practice at 44,45 (2018).
6 id.at 47
7 Graham Taylor, Understanding Brexit: Why Britain voted to leave the European Union, 2( 1st ed. 2017).

161
believe you are the citizen of the world, you are a citizen of nowhere”, having a rather striking
similarity with the speeches of Hitler. 8 However, it is clearly seen that this decision has deep
rooted reasons, one of which is the instance of immigration and the rise of xenophobic
tendencies in the UK and these extend beyond mere political and legal reasons. 9 Immigratio n
was one of the main focal points as there was a major influx of EU workers into the UK which
was creating a great burden on housing and employment facilities for the citizen of the UK.10
The extent of political rhetoric is rather alarming as it intends to persuade people strongly ,
with very few evidence or empirical data to support their claims. Gary Younge vehemently
opposes Brexit as he says this move leads to ‘de-humanizing Migrants11 and he also relies on
the Ipsos Mori poll to show that immigrants in UK constitute only 5% and not 15% as believed
by the people of UK backing the leave campaign.12 It is rather pertinent to understand the term
‘Xenophobia’ in the wake of the emerging refugee crisis. Xenophobia can be defined as
denigration of individuals based on perceived differences 13 and simply put, it is the fear of
outsiders. The major conflict in this regard is between the liberal notions of multi-ethnic
cosmopolitan cities and communitarian approach alongside national identity and pride. 14 This
is the power of political rhetoric which has been illustrated through these various examples .
The world politics is now moving towards intolerance due to the collapse of the liberal order
and the views of universalism has taken a backseat due to the alarming use of political rhetoric.
The use of rhetoric to give effect and encourage racist and xenophobic beliefs poses the greatest
threat to humanism and the unity of the greatest nations on the planet.

(b) Anti-immigrant stance of Donald Trump: Favoring ‘ethnic outbidding’


American Presidential speeches and oratory techniques have often been perceived as great
sources of political rhetoric. The political rhetoric of Donald Trump has made his stance on
immigrants- Mexican Americans and Muslims crystal clear from the very beginning. The
history of American racism can often be understood by drawing parallels to the foundation of
Nazism in Germany which is based on the eugenistic conception of a genetically superior race

8 Jonathan Davis, Andy Hollis, Theresa May’s Brexit speech had shades of Hitler, The Guardian,( Jan 26th 7:00
p.m.). https://www.theguardian.com/politics/2018/oct/12/theresa-mays-brexit-speech-had-shades-of-hitler
9 Taylor, supra at. 2.
10 Id. at 2.
11 Victor Jeleniewski Seidler, Making sense of Brexit: Democracy, Europe and Uncertain Futures,107(2018).
12 Gary Younge, Brexit: A Disaster Decades in the making, The Guardian,(Jan 26 th 6:00 p.m.)

https://www.theguardian.com/politics/2016/jun/30/brexit-disaster-decades-in-the-making
13 Mikael Hjerm, National Identities, National pride and Xenophobia: A comparison of 4 western countries, 41

ISO. 335,335 (1998).


14 Id. at 336.

162
than other Americans like Mexican Americans, African Americans etc. 15 The concept of
Trump’s rhetoric can be characterized as creating xenophobic tendencies by a process of ethnic
outbidding. This concept is applied when there are multiple ethnic groups and in order to
appease certain ethnic groups, politicians resort to favoring them even if it is at the expense of
others. The trajectory taken by Donald Trumps is to appeal to white nationalists by eugenis m
at the cost of Muslims and Mexican ethnic groups. 16
The rhetoric regrading immigrant policies has worked to the favor of Trump and the
Republicans due to the way immigrants have been portrayed and by highlighting the potential
harm that can be caused by such immigrants in order to be perceived as the ‘protectors’ of
national interest and security.17 Trump has made attempts to end birthright citizenship, it being
his strongest rhetoric derived from his anti-immigrant stance. This in essence would mean, that
the babies born to non-US citizens residing in the US will not be considered to be a naturalized
citizen of the United States of America . 18 Trump and his administration are convinced that
such a change does not require a Constitutional amendment. His recent stand on building the
Trump Wall even on the face of the government shutdown is clearly indicative that his anti-
immigrant stance. This will be the center of his political speeches and strategy for firmly sealing
his victory in the upcoming Presidential elections.

(c ) The German experiment of ethnic cleansing spearheaded by Adolf Hitler

The Nazi hatred towards the Jews manifested itself in many ways, however depriving them of
their citizenship was one of the measures adopted by the Nazis. The history of the laws
depriving Jews started way back in 1933 by means of the Law on the Revocation of
Naturalizations and the deprivation of the German Citizenship wherein few lost their
citizenship by revoking naturalization. The scope was however expanded in the Eleventh

15 Alvaro Huerto, Why President Trump’s racially charged Immigration rhetoric and policies are so dangerous,
Scholars Strategy Network(January 21, 2019 , 1:30 PM) https://scholars.org/brief/why-president-trumps-
racially-charged-immigrat ion-rhetoric-and-policies-are-so-dangerous.
16 Zack Beauchamp, “Ethnic Outbidding”:the academic theory that helps explain Trump’s anti-Muslim rhetoric,

Vox, (January 21, 2019 , 1:30 PM) https://www.vox.com/world/2015/12/10/9881876/tru mp-muslims-eth n ic -


outbidding
17 Paul Starr, Is Xenophobia Politically Rational, The American prospect, (January 21, 2019 , 1:30 PM)
https://prospect.org/article/xenophobia-politically-rational
18 "No Constitutional Amendment Needed" To End Birthright Citizenship: Trump, NDTV, (January 21, 2019 ,

1:30 PM)https://www.ndtv.com/world-news/donald-trump-plans-to-end-citizenship-by-birth-for-non-us-
nationals-1941045

163
Decree to the law on the Citizenship of the Reich which deprived all the Jewish Germans of
their citizenship on the ground that they have resided abroad. 19

Race played an important role in differentiating between the ‘superior’ German Aryan race to
which the Nazis belonged and the exclusion from citizenship of Jews by way of these laws
paved the way for the Holocaust and the ethnic cleansing of the society only for the superior
race to survive.20

There is some evidence to suggest that Hitler was influenced by the notion of American racism
as James Whitman in his book “Hitler’s American Model: The United States and the Making
of Nazi Race Law” makes an intriguing observation about “Mein Kampf” which is Hitler’s
autobiography, wherein he praises America for conceiving a citizenship based on race and
thereby in the process excluding other races for claiming the benefit of naturalization21

It is rather ironical to note that Hitler who changed the face of citizenship in Germany was born
in Austria and was a migrant to Germany. His appointment to a government job with automatic
citizenship made him a German citizen in 1932.22 Political rhetoric of Hitler, considered to be
one of the world’s finest, appealed to the masses and he emerged as one of the primary figures
in the study of Fascism. The resurgence of the Nazi ideology propagated by Adolf Hitler is
coming into vogue by means of political rhetoric by many prominent German politica l
leaders.23 This has to be understood in light of the inclusive refugee stance which Angela
Merkel was trying to establish, the recuperated Nazi rhetoric seems to be anti-refugee having
malignant tendencies based on the notions of ethnicity.

19 Stanley Johnson, Explained: Nazi Laws which stripped Germans of Cit izenship and the Laws Restoring it,
Passportia(January 23, 2019, 12.20 PM) http://www.passportia.org/blog/explained-nazi-laws-stripped-jewish
20 William F. Meinecke, Jr., Remembering the Nuremberg Laws: The True Meaning of Citizenship, United

States Holocaust Memorial Musuem, (January 23, 2019, 12.20 PM) https://www.ushmm.org/confront-
genocide/genocide-prevention-blog/remembering-the-nuremberg-laws-the-true-meaning-of-cit izenship
21 Alex Ross, How American racism influenced Hitler ,The New Yorker(January 23, 2019, 12.20

PM)https://www.newyorker.com/magazine/2018/04/30/how-american-racis m-influenced-hitler
22 Feb 25, 1932 CE : Hitler becomes a German, National Geographic (January 23, 2019, 12.20 PM )

https://www.nationalgeographic.org/thisday/feb25/hitler-becomes-german/
23 Samuel Osborne, Nazi language becoming increasingly common in Germany’s discussion ofre fugee crisis,

researchers say,Independent, (January 23, 2019, 12.20


PM)https://www.independent.co.uk/news/world/europe/nazi-language-germany-refugee-crisis-far-right-racism-
a7429921.ht ml.

164
ROHINGYA CRISIS: CLASSIC INSTANCE OF BLURRY LINE OF DEMARCATION
BETWEEN ‘REFUGEES’ AND ‘ILLEGAL IMMIGRANTS’

The issue of dealing with refugees in India is not some issue that we haven’t grappled in the
past. The history of refugee crisis was almost a direct result of the partition, and since then
India has been the country housing the largest refugee population in South Asia despite not
being a party to several International agreements with respect to refugees. 24 This raises serious
questions as to why India has become hostile towards the Rohingyas, who have sought asylum
in India. The government has taken a stand that the influx of the Rohingya population has taken
a toll on the resources of the country and has posed significant security challenges. 25 India has
taken the stand that by virtue of not being a party to the UN Refugee Convention, 1951, India
need not abide by the principle of non-refoulement. This caused the treatment meted out to the
Rohingyas to be one of illegal immigrants rather than refugees. 26 The identity cards issued to
the Rohingyas by the United Nations High Commissioner for Refugees (UNHCR) has been
disregarded in India and has deported the Rohingyas back to Myanmar which violates the
principle of refoulement.27 The government of India has taken consistent steps to ensure that
the Rohingyas do not form a part of public life by the biometric collection of information to
exclude these members to hold Aadhar card, which is required for a public life in India. 28

Tracing the backstory of how Rohingyas fled from Myanmar to various parts of India and
Bangladesh was a result of the Burma Citizenship Law 1982 which classified the citizens into
various categories to institutionalize the hierarchy that was prevalent in the times. 29 As a result
of this institutionalization, Rohingyas were classified as “resident foreigners” who gave them
no rights that were equal to that of citizenship. The challenge to this system of characteriza tio n

24 Martand Jha, India's refugee saga, from 1947 to 2017, Livemint,(January 24,2019 , 11:28 am),
https://www.livemint.com/Sundayapp/clQnX60MIR2LhCitpM mMWO/Indias -refugee-saga-fro m-1947-to-
2017.html
25 Rohingya Refugees Who Were Stranded at India-Bangladesh Border Sent to Judicial Custody, The Wire,

(January 24,2019 , 11:28 am),https://thewire.in/rights/rohingya-refugees-who-were-stranded-at-india-


bangladesh-border-sent-to-judicial-custody
26 Shaikh AzizurRahman,Rohingya refugees flee India amid fears of mass deportation,The Telegraph ,(January

24,2019 , 11:28 am)https://www.telegraph.co.uk/news/2018/11/27/rohingya-refugees-flee-india-amid-panic-


data-collection-drive/
27 Krishna N Das, India’s Rohingya refugees suffer with hatred, fear as first group is expelled, Thomson

Reuters, (January 24,2019 , 11:28 am)https://www.reuters.com/article/us -myanmar-rohingya-india-


insight/indias-rohingya-refugees-struggle-with-hatred-fear-as-first-group-is-expelled-idUSKCN1MH04P.
28 Elise Thomas, The other Rohingya Crisis, The Interpreter,(January 24,2019 , 11:28

am)https://www.lowyinstitute.org/the-interpreter/other-rohingya-crisis
29 Navine Murshid, Why is Burma driving out the Rohingya-and not its other despised minorities?, The

Washington Post, (January 24,2019 , 11:28 am)https://www.washingtonpost.com/news/monkey-


cage/wp/2017/11/09/why-is-burmas-military-driving-out-the-rohingya-and-not-its-other-despised-minority-
groups/?utm_term=.648d3dbe50cb

165
has been the reason for the Rohingya crisis as their opposition was a threat to the newly formed
Myanmar. It is rather ironic to note that the denial of citizenship in Myanmar has continued
even in India almost rendering them ‘stateless’ in the country of asylum as well as country of
origin. The Rohingyas identity belongs to the Bengali origin and they were forced to remain in
Burma for the purpose of British retaining control over the present day Rakhine State in
Myanmar.30

Parallels can be drawn between the situation of Rohingyas in Myanmar and the situation in
Assam due to the National Registrar of Citizens (NRC) . Although the causes might be
different, the effect remains the same. The result of ethnic cleansing and fostering hostility
leaving these communities stateless serves as a classic example of vote bank politics in India.
The ruling BJP government can explicitly highlight their ideological orientation by expressly
excluding those who do not fall within the criteria under the NRC, and appease the Hindu
Assamese vote bank going into the general election of 2019. 31 These communities are excluded
from citizenship, the question of voting does not even arise. These voters, predominantly
Muslims who if given an opportunity would vote against the BJP due to their exclusive
Hindutva ideology, are now being rendering Stateless for politica l gains . The deportation of
Rohingyas to Myanmar is an important strategic political move for the BJP to appeal to its
Hindu vote bank. The deportation of Rohingyas has assumed so much importance that the party
manifesto ahead of the upcoming polls in Rajasthan has promised the deportation upon winning
the polls.32

In this context, it is pertinent to note certain judicial decisions in the pretext of the Rohingya
crisis. In the case of Dongh Lian Kham v. Union of India33 the Delhi High Court has held that
the principle of non-refoulment falls under the ambit of Article 21 irrespective of the
nationality. Further the Supreme Court in the case of NHRC v. State of Arunachal Pradesh and
Anr.34 has explicitly held the life and liberty of every person has to be protected and the question
of citizenship does not arise. It is interesting to note that Article 21 of our Constitution has been

30 Ranjeev C Dubey, Why India can’t afford Rohingya refugees, Business Today, (Janu ary 24,2019 , 11:28
am)https://www.businesstoday.in/opinion/fineprint/rohingya-refugee-crisis-india-bengal-rakhine-myanmar-
bangladesh-jammu-settlement/story/263586.html
31 Hartosh Singh Bal, Is India creating its own Rohingya?, The New York Times , (January 24,2019 , 11:28

am)https://www.nytimes.com/2018/08/10/opinion/india-citizenship-assam-modi-rohingyas.html.
32 Umar Manzoor Shah, Rohingya become pawns in India’s political game,Ucanews, (January 24,2019 , 11:28

am)https://www.ucanews.com/news/rohingya-become-pawns-in-indias-political-game/83975
33 226(2016 ) DLT 208
34 AIR 1996 SC 1234

166
worded to include and the protect the life and liberty of every person. Despite this, the refusal
of Supreme Court to hear the matter of deportation of refugees to Myanmar sets a bad precedent
in light of the humanitarian jurisprudence in India.35 This by implication equates the stand of
the government of the Judiciary, which clearly is a sign of vicious tendencies for a democracy
like India which is premised on separation of powers.

CRITIQUE OF THE INDIAN CITIZENSHIP (AMENDMENT) BILL, 2016:

Citizenship is a term which denotes a state’s engagement with both their citizens and those
pressing at its borders.36 There are two elements in this definition that need to be examined
namely citizenship is not only limited to the relationship of the state and its citizens but also
with the non- citizens at its borders. These elements are very relevant in this discussion as these
complex set of relationships coupled with ideologies of the state’s lawmakers forms the basis
for the structure of citizenship laws in those respective states. Weber points outs an inherent
paradox of conscious control of the law makers on the making of legal rules which he claims
to be of very little significance and it has a much greater socio-economic paradigm attached
to it and is also not fully perceived by the lawmakers themselves. 37 Law is a product of a diverse
system which encompasses various ideologies, psychologies of diverse groups and entities in
a society and it is seldom a static concept. This dynamic feature of law can be elucidated by
considering legislative process a product of ethical and political debates of a particular time
period in which it is made.38 The main objective to have brought the above theories into place
is to determine to what extent the ideologies of the particular time period seep into the
legislative process. As we can infer from the above statements that law is a very
accommodative concept and thus have a large number of influential factors behind its making.
It is now pertinent to examine the political scenario of the world to establish the present pulse
of ideologies that are influencing citizenship laws worldwide.

There has been a major ideological shift in terms of the fall of the liberal order and this shift is
fueled by drastic changes like Britain voting to leave the European Union, the Election of
Donald Trump and the Refugee crisis which reflects the rise of white nationalis m, racism and
Xenophobia against religious, ethnic and cultural groups like Muslims and Mexican

35 Pallavi Saxena, Supreme Court’s refusal to interfere with the deportation of seven Rohingya refugees violates
International Law, (January 24,2019 , 11:28 am) https://www.livelaw.in/supreme-courts-refusal-to-interfere-
with-the-deportation-of-seven-rohingya-refugees-violates-international-law/
36 Niraja Gopal Jayal, Citizenship and its Discontents, 62 (2013).
37 SallyFalk Moore , Law as a Process – An Anthropological Approach ,06 (1978).
38 Hans Kelson, Pure Theory of Law ,193-276 (1960).

167
Americans. 39 The rhetorical political ambience in the world is leaning now towards
discrimination and intolerance which was earlier leaning towards tolerance and a univers a l
cosmopolitan view of citizenship. This attitude has also seeped into a secular country like India
where secularism is considered to be the basic structure of the constitution. 40 The recent
Citizenship Amendment Bill 2016 has caused a furore among the liberals and is also seen as
the biggest threat to the order of secularism in the country that has been preserved since the
inception of the Indian Constitution.

It is pertinent to examine the contents of the Bill in connection to political rhetoric over
constitutional morality which is a clear subversion of the true ideals of the Indian Constitutio n.
The main highlight of the Bill is that it amends the Citizenship Act, 1955 to make illega l
migrants who are Hindus, Sikhs, Jains, Buddhists, Parsis and Christians from Afghanis ta n,
Pakistan and Bangladesh eligible for citizenship. This was a proviso added to Section 2(1) of
the Citizenship Act after clause (b) which explicitly makes religion , a basis to obtain
citizenship and expressly excluding Muslims from the list of religions. In Section 4(d) of the
same Act, another proviso was inserted to reduce the aggregate period of residence to obtain
citizenship in India from 11 years to 6 years.

The Citizenship Act was again sought to be amended in 2019 to exempt the application of the
Foreigners Act, 1946 and a Central Government exemption under Section 3(2)(c) of the
Passport (entry into India) Act to these religious communities. This is clearly violative of
Article 14 of the Constitution of India as the wording under Article 14 is ‘any person ‘does not
differentiate between citizens and non-citizens’ and its available by virtue of personhood. In
the case of M Nagaraja v. Union of India41 , it was held that Equality is the essence of
democracy and it also constitutes the basic structure of the constitution. In the case of State of
West Bengal v. Anwar Ali Sarkar42 it was held that to be permissible under Article 14 of the
Constitution a classification must conform to 2 tests which are a) classification to be founded
on an intelligible differentia b) must have a rational nexus between the differentia and the object
sought to be achieved by the Statute. . Another issue that emerges from this provision is that it
discriminates people on their religion and which also implies that Muslims, atheists and people

39 Meghnad Desai,Politic Shock: Trump,Modi,Brexit& the Prospect for the Liberal De mocracy, 2 (2017).
40 SR Bommai v. Union of India AIR 1994 SC 1918.
41 AIR 2007 SC 71.
42 AIR 1952 SC 75

168
who do not wish to associate with any religion for that matter are not eligible for citizenship. 43
The government, however has adopted a quite different approach to justify the Bill and to
subsequently prove how the amendment can withstand the challenges posed to it under the tests
laid down by the Court under Article 14. The government in its report of the Joint Committee
on the Citizenship Amendment Bill 2016 44 relies on the case of Parent’s Association v. Union
of India45 where classification as accepted on the grounds of historical, geographical or other
reasons and these reasons were held to be reasonable. The report also relies on Clarence Pais
v. Union of India46 in this case it was held that historical reasons may justify differentia l
treatment of separate geographical regions provided it bears a reasonable nexus to the
differential treatment. The basic contention that the government here is relying on, is that the
main object of this Act is not to discriminate on the basis of religion but the Act is focused on
protecting persecuted minorities in these countries. 47 It is further aimed at curbing the drastic
growth of International Islamic fundamentalism from spreading to India which is a stand
adopted by the Supreme court in the case of SarbanandaSonowal v. UOI.48 Thus is whole
scenario perfectly falls in line with the argument that the world is moving towards hegemonic
intolerance and this case also perfectly elucidates the fall of the Liberal order and it is a greate st
threat to the liberal concept of universal cosmopolitan citizenship.

CONCLUSION

There is a situation of divisiveness in the political atmosphere in the world having varying
notions of citizenship. Citizenship provides a sense of identity to the population. Often
citizenship laws are misused in order to suit the political scenario. This has widespread
implications on refugees and migrants as in the case of the Rohingyas. The discrimina tor y
treatment meted out to the Rohingyas is a result of lack of a refugee law in India, which has
led to the blurry distinction between refugees and illegal immigrants. Political rhetoric has
never gained so much importance as in the present times, that America being one of the most
developed nations of the World has had a government shutdown on the pretext of ethnic

43 Anviti Chaturvedi, Legislative Brief: The Citizenship Amendment Bill 2016, PRS: Legislative Brief (January
25,2019, 6:00 p.m.),
http://www.prsindia.org/uploads/media/Citizenship/Legislative%20Brief%20Citizenship%20A mendment%20Bi
ll%202016.pdf
44 Parliament of India, Lok Sabha 45,( 26th January 9:00 p.m.),

http://164.100.47.193/ lsscommittee/Joint%20Co mmittee%20on%20Bill%20to%20amend%20the%20Citizenshi


p%20Act,%201955/16_Joint_Co mmittee_on_Bill_to_amend_the_Citizenship_Act_1955_1.pdf
45 2000 2 SCC 657
46 2001 4 SCC 325
47 Lok sabha supra, at 46.
48 AIR 2005 SC 2920

169
outbidding the Mexican American population. To fathom that such a progressive nation is still
influenced by primitive conceptions such as racism clearly indicates that political rhetoric still
has the influence that George Orwell predicted it would have. The main reason attributable to
this sense of hostility and intolerance towards other communities as put forth in the paper- the
fall of Liberal order. In the name of citizenship , the world community cannot legitimize human
right violations as this would set an unhealthy precedent, as one day the perpetrator of hate will
be the victim of hate.

170
THE NRC VIS-A-VIS THE CITIZENSHIP (AMENDMENT) BILL, 2016

- Priyanka Gogoi

INTRODUCTION

The National Register of Citizens (NRC) has been an exercise conducted, first in 1951, and
currently being updated following the Supreme Court directions in Assam Sanmilita
Mahasangha&Ors vs Union of India.1

Such a National Register of Citizens does not exist in any other state of India. The pending
case will be dealing with issues regarding the constitutionality of Section 6A of the Citizens hip
Act, 1955, the different cut-off date that is applicable to Assam and whether the influx of illega l
migrants constitutes ‘external aggression’ and/or ‘internal disturbance’ under Article 355.

To understand why such a register of citizens came to be, one needs to understand Assam’s
history associated with the waves of refugee influx.

MIGRATION AND ASSAM:

Pre-Independence, post-independence and even at present, the borders of India and Banglades h
are porous and Assam shares 262kms of border with neighbouring Bangladesh, besides a
shared history under British rule.

The Constitution (Article 6) mentions the cut-off date of migrants to India as 19th July 1948.
Post-partition, India and Bangladesh (then East Pakistan) saw communal riots break out. In
1950, in an effort to end the atrocities on minorities, the Nehru-Liaquat Pact was signed and
both governments emphasized not on migration of citizens on religious lines, but on the
allegiance of the minorities to the country of their choosing.

However, the influx of refugees continued unabated even after the cut-off date of 19th July
1948. In order to ascertain who was an Indian citizen, during the census of 1951, a National
Register of Citizens was prepared under a directive of the Ministry of Home Affairs containing
information village-wise of each and every person enumerated therein. 2

 The Author contributed in the capacity of Academician.


1 WP(C) NO. 562 OF 2012
2 Ibid, para 7

171
After the passing of the Citizenship Act, 1955, Foreigner Tribunals were set up to deport
Pakistani nationals who were in India without proper permission.

The process of deportation of foreigners from Assam picked up momentum during the period
from 1961 to 1966 and during that period itself, more than 1.70 lakh infiltrators were pushed
back to the then East Pakistan.3

Towards the late 1960s, however, the concern about the seriousness of the immigra tio n
problem among the political leadership was on the wane and gradually it evaporated. This
seems to have stemmed from the emerging geo-political reality in the subcontinent. 4

With the liberation of Bangladesh in 1971, Assam witnessed another wave of refugee influx.
At the outset of the crisis, India had taken the position that refugees would have to return within
a six-month period.5 However, it soon became clear that the evacuees will not be able to return
to Bangladesh within the proposed period of six months.

Soon after, the 1972 Indira-Mujib Agreement was signed and illegal migrants who had entered
India from Bangladesh after January 1964 up to 25 March 1971 were allowed to return to
Bangladesh. However many refugees chose to stay in India.

It is to be noted that the influx of illegal migrants did not stop at 1971.

ASSAM ACCORD:

In 1979, during the by-elections in Mangaldai, it was alleged that the electoral rolls had a
considerable increase of Muslim voters. The protests of demanding the removal of names of
illegal migrants from the electoral role culminated into the Assam Movement. The moveme nt
quickly took a dangerous turn with carnage, pillage and thousands rendered homeless. Such
was the scale of large-scale violence that President’s rule was proclaimed on 12 December
1979.

The All Assam Students Union (AASU), All Assam Gana Sangram Parishad (AAGSP),
Purbanchalia Lok Parished (PLP), Assam Jatiyatabadi Dal were at the fore and demanded the

3 R Dutta Choudhury, ‘Over 1.70 lakh foreigners deported from State during 1961-66’, The Assam Tribune (28
June 2018) http://www.assamtribune.com/scripts/detailsnew.asp?id=jun2818/at056 last accessed 25 Jan 2019
4 DilipGogoi, Unheeded Hinterland: Identity and sovereignty in Northeast India (1st edn, Routledge, 2016)
5 UNHRC, The State of The World’s Refugees 2000: Fifty Years of Humanitarian Action (Chapter 3: Rupture in

South Asia) 66, <https://www.unhcr.org/3ebf9bab0.pdf> , last accessed on 25th Jan 2019

172
identification, deletion from electoral rolls and deportation of all foreign nationals who have
entered the state illegally after 1951. 6

While the Assam Movement was in fervour, the Union government enacted a special
legislation, the Illegal Migrants (Determination by Tribunals) Act, 1983 (the IMDT Act). One
of the reasons for enacting this legislation was to appease the leaders of the Assam Movement.
The Act dealt with identifying/detecting and deporting non-citizens.

After six years of agitation, on 15 August 1985, the Assam Accord was signed by the
representatives of the Assam Movement and the Government. The terms of the Memorandum
of Settlement stated that the parties agree 1 st January 1966 to be the base date for detection of
foreigners, and any illegal immigrant who entered India from 1 st January 1966 up to 24th March
1971 will be disfranchised for a period of ten years, following which their names will be
restored in the electoral rolls. All foreigners who enter Assam on or after 25 th March 1971 will
continue to be detected and expelled.

In accordance with the Assam Accord, the Citizenship Act, 1955 was amended in 1986 and
Section 6A was inserted.

ILLEGAL MIGRANTS AND THE IMDT ACT:

As seen from the Assam Accord, illegal immigrants are those who came to Assam on or after
25th March 1971.

The exact number of illegal immigrants who entered Assam after 25 th March 1971 can never
be precise. However, many researchers have tried to extract Census data and provide an
approximate number. Saikia (2005) estimates the number of illegal immigrants to be at least
1.4 million between 1971 and 1991, and at least 1.1 million between 1991 and 2001. 7

There are a few other estimates available from government sources. For example, one
government record shows that between 1972 and 1993, of the people who entered India from
Bangladesh legally, 836 thousand people stayed back illegally. 8

6 Assam Accord, 1369, Economic and Political Weekly, Vol. 20, No. 33 (Aug. 17, 1985)
<https://www.jstor.org/stable/4374698> accessed on 18th Jan 2019
7 Hiranya K. Nath and Suresh Kr. Nath, Illegal Migration into Assam: Magnitude, Causes, and Economic

Consequences (January 28, 2011) 18 <https://ssrn.com/abstract=1750383> accessed on 25th Jan 2019


8 Ibid 19

173
Illegal migration has been widely attributed as the main cause of high rate of population growth
in Assam and other parts of the region. There were also the allegations of the manipulations of
electoral lists to enlist the illegal migrants. Over 50 territorial assembly constituencies in Assam
had reported 20 per cent increase in voters between 1994 and 1997, while the national average
was just 7.4 per cent.9

According to many, the Illegal Migrants (Determination by Tribunals) Act, 1983 was a hurdle
in detecting and deporting foreigners. Once detected as a “foreigner”, the burden of proof was
on the authority/complainant to prove that the person detected was indeed a “foreigner”. (It
must be noted that according to the Foreigners Act, 1946, that applied to the rest of the country
sans Assam, the burden of proof was on the alleged “foreigner” to prove his Indian nationality.)

Due to this particular mode of identification prescribed by the IMDT, it was argued in
SarbanandaSonowal v. Union of India that the Act was too protective of the immigra nts’
interests and the detection and consequent expulsion of foreigners were “dismal”. 10 Therefore,
in 2005, the Supreme Court struck the IMDT as unconstitutional.

While the grounds for declaring the act unconstitutional were specifically questions of legal
procedure, the general principles articulated in the process had ramifications for the way in
which citizenship was defined and interpreted. The Court described immigration from
Bangladesh not only as illegal entry, but as an act of aggression. Arguing within a notion of
bounded citizenship, the Court stated that buttressing national territorial boundaries and
protection of its population from infiltrators who posed a threat to national security was an
essential function of state sovereignty. 11

In fact, when the IMDT Act was enacted, the Muslim groups supported it for various reasons,
one of them being that they would have a way to prove their Indian citizenship (but also, for
the nefarious reason that many illegal migrants would get a chance to stay back in India because
of the burden of proof prescribed by the Act that may work in their favour).

Therefore, when the IMDT Act was struck down by the Supreme Court the Muslim groups
alleged that the Muslims would be harassed by the police in the name of detection of

9 M Amarjeet Singh, The politics of migration in India: What it is; and what to do? 5 (Thirdfront, Journal of
Humanities and Social Science Vol. I, No. I, Feb. 2013) <http://www.thirdfront.in/> accessed on 18 Jan 2019
10 WP (C) No. 131 of 2000, Para 7.
11 Anupama Roy, Ambivalence of Citizenship in Assam, Economic & Political Weekly (Vol LI Nos. 26 & 27,

25 June 2016) 46

174
“foreigners.” By contrast, the other groups who were against the IMDT Act welcomed the
ruling.12

THE ASSAMESE MUSLIM:

Assam has the third highest percentage of Muslims at 30.9%,

At the onset, it is to be noted that an Assamese Indian Muslim cannot be placed in the same
category as the illegal migrants. However, because of historical and cultural reasons, many
Indian Assamese Muslims speak the same language and adhere to similar culture as the illega l
migrants. This makes an onerous task of separating the genuine Indian Muslims from the ille ga l
migrants pretending to be Indian. Therefore, the percentage of 30.9% may not be an accurate
percentage if one takes up the issue of Indian nationality.

Historical evidence tells us there had been presence of Muslims in Assam since the 12 th century.
Through attempts of invasion by Muslim rulers to the spread of Islam in the region to the advent
of the British colonialism wherein Bengali-Muslims came to Assam, the population
demography of Assam has seen the presence of the Muslim population.

It was during the Indian Partition and the subsequent liberation of Bangladesh that the seeds of
identity crisis haunting the present Assamese population were sown. Religious persecution that
culminated into the India-Pakistan partition, 1964 East Pakistan riots, and Hindu minority’s
persecution in 1971 Bangladesh saw waves of influx of refugees into India; most of them
entering the boundary states of Tripura, Assam and West Bengal. These occurrences had their
own intricacies and created religious and linguistic divisio ns between the Bengalis (who were
already settled in Assam), Assamese and migrants and divided the society on language and
religious lines.

As mentioned previously, the illegal migration continued unabated even after 24 th March 1971
and if one compares the population statistics, there has been an exponential increase in the
Muslim population which, some say, is attributable to the increase in illegal migrants. The riots
and aggression during the Assam Movement had further made a dent on the identity of the
Muslim Assamese.

When one looks at the Nellie massacre, one sees the brunt that Muslims in the region endured.
1819 people, mostly Muslim peasants of East Bengal origin was killed in the Nellie episode in

12 Ibid 9, 12

175
February 1983. Such incidents create alienation and insecurity amongst Assamese Muslims,
who have been and still are a large part of the Assamese society.

In all of this, the Bengali Muslims has been the worst victim of identity as he is doubted over
his citizenship because of his religion and language.

THE UPDATION OF NRC:

It was in the case of Assam SanmilitaMahasangha&Ors v Union of India 2014 that two
fundamental issues were dealt with: the constitutional validity of Clause 6A of the Citizens hip
Act, and updating of the NRC. However, the Supreme Court refrained from giving any verdict
on the former, on the grounds that the issues associated with it “substantial questions as to the
interpretation of the Constitution” which need to be answered by an appropriate bench13 and
therefore, referred it to a constitution bench. The Supreme Court dealt with the progress in
implementing various clauses of Assam Accord, including border security and foreign tribuna ls
and issued directions to update the NRC in a time-bound manner.

Accordingly, the onerous task of identifying Indian citizens was taken up by the Governme nt.
A person could prove his Indian citizenship by showing one (out of 14) documents listed by
authority that included 1951 NRC, Electoral Roll(s) up to 24th March 1971 (midnight), Land
& Tenancy Records, Citizenship Certificate, Permanent Residential Certificate, Refugee
Registration Certificate amongst others. 14 If an applicant is born after 1971, he or she can use
the documents of his/her ancestors to prove legacy.

Unfortunately, in the months that followed, there were news reports of the legacy data being
misused to claim citizenship by illegal immigrants or wrongly used due to sheer ignorance. 15

On 30th July 2018, when the final NRC draft was prepared, 40lakh people were left out of the
list.

In November 2018, the Supreme Court allowed five more documents to prove citizens hip.
These include: NRC of 1951, voter list of 1966, voter list of 1971, refugee registratio n
certificate till 1971 and ration card issued till 1971. Hajela, the NRC coordinator, cited some
instances of how the additional five documents, including ration cards, refugee registration and

13 WP(C) NO. 562 OF 2012, Para 33


14 Complete list at http://www.nrcassam.nic.in/admin-documents.html
15 ‘NRC: Put legacy data online, says rights body’, The Hindu (09 Aug 2018)

<https://www.thehindu.com/news/national/other-states/put-legacy-data-online-rights-
body/article24646092.ece > accessed 25 Jan 2019

176
citizenship certificates, can be forged and extracts of the 1951 NRC and electoral rolls up to
March 25, 1971, also called legacy data, could be misused to get illegal migrants into NRC.16
But the Supreme Court added these five additional documents to help the citizens to prove their
claim. Claims and objections were allowed till 31 st December 2018.

Citing flaws in the NRC process, the Assam Public Works had made a demand for a re-
verification of the process and the Supreme Court has been considering the necessity of re-
verification of at least a 10% sample of those who have been included from every district. 17

It is the Supreme Court that finally decides what would be the fate of the people whose names
are not on the Final NRC list.

Even earlier, the false detection of citizens as foreigners has come forth in cases before the
Supreme Court. The case of MoinalMolla who languished in a detention centre for more than
3 years is worth nothing. Both his parents were Indian, but he was a doubtful citizen.18 Another
report that has made national news is the case of Mohammed Azmal Haque, a retired Army
officer who was put in the doubtful citizen category. 19 Under the direction of the Supreme
Court, one hundred such tribunals have been hearing cases of people residing in the state who
have been placed in the doubtful (D)-voter category by the state government. 20

The researcher has chosen two cases concerning Muslim Assamese citizens specifically to
bring to the notice the reason why the NRC, if updated correctly, would be a help to Assamese
Muslim citizens.

On the other hand, because of the NRC, the fate of 40lakh people is placed at the hands of the
government. How many of these are Indians and how many are illegal migrants are to be
determined on a case-to-case basis. If the objections and claims of these 40lakh applicants are

16 Bhadra Sinha, Supreme Court allows 5 more documents for filing claims, objections to Assam citizen list,
Hindustan Times (01 Nov 2018) >https://www.hindustantimes.com/india-news/sc-fixes-dec-15-deadline-for-
inclusion-in-assam-citizen-list-allo ws-5-more-docu ments-as-proof/story-ybRY0Ro x70lote4Ozd VbIL.ht ml>
accessed 25 Jan 2019
17 Sadiq Naqvi, Assam govt demands re-verification of NRC draft, Hindustan Times (01 Nov 2018)

<https://www.hindustantimes.com/india-news/assam-govt-demands-re-verification-of-nrc-draft/story-
eR12eB1LHBcB4FwM4jA0W N.ht ml> accessed 25 Jan 2019
18 Abdul Gani, Supreme Court asks Assam government not to deport MoinalMollah, Two Circles (16 Oct 2015)

<http://twocircles.net/2015oct16/1444984928.html> accessed 22 Jan 2019


19 Retired Army Officer in Assam Put in 'Doubtful Citizen' Category, The Wire (02 Oct

2017)<https://thewire.in/government/authorities -put-retired-army-official-in-doubtful-category-in-assam>
accessed 17 Jan 2019
20 ibid

177
undertaken in a fair and just procedure, upholding constitutionalism, the NRC exercise could
still emerge as a successful exercise of weeding the illegal migrant from the Indian population.

The best case scenario, at this moment, would be to create an orderly mechanism for those
aggrieved by exclusion to exhaust judicial remedies in accordance with law, without
prejudicing their rights by prejudging any matter. 21

With the NRC process underway, there were reports of people claiming to be Indians being
harassed and detained by the authority. It is also alleged that the recent NRC (National
Registration of Citizens) updation process of Assam, chalked out by the government as per the
demand of the present AASU leaders is a well planned mechanism to harass the minor ity,
specially the Muslim minority people of the state. 22 The government as well as the media have
liberally played upon the slippage between “illegal encroacher” and “illegal immigrant” in its
representation of the Bengali-speaking Muslims in the main. They are presently bearing the
brunt of the eviction drives.23

However, in this disarray, the Citizenship (Amendment) Bill, 2016 was passed by the Lok
Sabha, which sought to favour migrants of particular religious groups over Muslims.

CITIZENSHIP (AMENDMENT) BILL, 2016:

The Citizenship (Amendment) Bill, 2016 was introduced in Lok Sabha on July 19, 2016
seeking to exempt the rules for citizenship of Hindus, Sikhs, Buddhists, Parsis, Jains and
Christians who arrived in India from Afghanistan, Pakistan and Bangladesh. The Bill states
that the people belonging from these groups will not be treated as ille gal migrants.

Additionally, whereas the Citizenship Act, 1955 allows a person to become a citizen by
naturalisation if he resides in India for the 12 months immediately preceding the applicatio n
for citizenship, and for 11 of the previous 14 years, the 2016 Amendment Bill reduces the 11
year old requirement to six years for the above-mentioned minority groups, hence making the
path of acquiring Indian citizenship easier for some groups on the basis of their religious faith,
thus eroding Article 14 of the Constitution.

21 Alok Prasanna Kumar, National Register of Citizens and the Supreme Court, Economic& Political Weekly
(Vol LIII No. 29, 21 July 2018) 11
22 Shahiuz Zaman Ahmed, Deportation Movement, Creation Of 'D' Voters And Problems Of NrcUpdation in

Assam, Proceedings of the Indian History Congress, Vol. 75, Platinum Jubilee (2014) 1296
<https://www.jstor.org/stable/44158521> accessed 18 Jan 2019
23 Gaurav Rajkhowa et al, The Citizen Finds a Home: Identity Politics in KarbiAnglong, Economic & Political

Weekly (Vol LIII No. 47, 01 Dec 2018)

178
THE NRC AND CITIZENSHIP (AMENDMENT) BILL:

History is evident to the fact that migration has occurred in Assam since time immemor ia l.
However, since Independence, the issue of citizenship, Assamese and Indian identity has
placed the Assamese people at the brink of patience. The NRC and Assam Accord was a way
of bringing some semblance of justice to people whose rights were slowly eroded away by the
fast changing demography. However, the previous governments either could not find a solutio n
to this issue or leaned in favour of illegal migrants for their ‘vote-banks’.

It is also noteworthy to mention that illegal migrants who came to Assam from Banglades h
after 1971 are both Muslims and Hindus. Therefore, a law that places one person over another
on the basis of religion strikes at the very root of constitutionalism.

Under the Supreme Court directions in Assam SanmilitaMahasangha&Orsvs.UOI, the Court


had asked the Indian government to hold repatriation talks with Bangladesh government, but
till date, there has been no progress in the matter.

In fact, Bangladesh has denied the allegation of their nationals’ border crossing to India on
several occasions. The Bangladesh government sees the problem of illegal migrants as India’s
internal issue and says that the burden of proving that a person is Bangladeshi is on the Indian
government.24

As Hiren Gohain states, “To scuttle the NRC now—which will gladden the hearts of Hindu
chauvinists—is bound to restore the phase of bloody anarchy without an end in sight, which
was the grim lot of the people of Assam barely three decades ago… Not that there is no danger
from the undercurrent of Assamese chauvinism, but for now it is no longer the dominant trend,
as the lessons of the Assam Movement have more or less left deep marks in the popular
consciousness.”25

For once, the Assamese people have woken up from their slumber and assembled beyond race
and religion to protest against the Citizenship (Amendment) Bill, 2016. One can only hope that
the long-pending NRC process is conducted in fairness, and no genuine Indian is left out.

24 Bangladesh will take illegal immigrants but India must prove they are ours: Rizvi, India Today (05 Oct 2018)
<https://www.indiatoday.in/india/story/bangladesh-will-take-illegal-immigrants-but-india-has-to-prove-they-
are-ours-gowher-rizvi-1356715-2018-10-05> accessed 19 Jan 2019
25 Hiren Gohain, Economic & Political Weekly, Commentary (Vol LIII No. 49, 15 Dec 2018) 5

179
NATIONAL REGISTER OF CITIZENS IN ASSAM: A SAVIOUR OR A CURSE

- Prof. (Dr.) Anand Pawar and Ms. Ishita Sharma 

'For many of us, citizenship only really matters when we travel abroad, when the Olym pic
Games are on, or when we vote in national elections. We do not think about our citizenship on
a daily basis. For others, citizenship is an ever present issue, and often an obstacle. Because
recognition of nationality serves as a key to a host of other rights, such as education,
healthcare, employment, and equality before the law, people without citizenship- those who
are 'stateless'-are some of the most vulnerable in the world.'26

The National Register of Citizens (hereinafter referred to as NRC) has been doing the rounds
in the national news from quite a while. The birth of the NRC can be traced back to 1951 when
Assam was first faced by a huge influx of migrants from East Pakistan (now Banglades h).
Primarily, an exercise to authenticate the citizenship credentials of the diverse population of
Assam, that was beset by large scale migration in aftermath of partition as well as independence
of Bangladesh from Pakistan in 1971. These factors led to a great influx of people into the state
of Assam, which led to wide scale protests from the indigenous population leading to the
Assam Accord on 15th August, 1985 and the exercise to update NRC in order to identify
authentic citizens as opposed to illegal migrants.

The task on the face of it, seems to be a good exercise to validate the existence of the people
who entered India in the face of above-mentioned phenomena, but there exist glaring loopholes
if one goes into an in-depth study of the legal provisions that beset this exercise. The provisio ns
governing citizenship are laid down in the Constitution of India under the aegis of which is the
Citizenship Act, 1955. Section 6-A of the Act was inserted as a result of as well as an appendage
to the Accord where under clauses 4,5 and 6 of the said subsection, a person who has been
identified as a foreigner shall have the same rights and obligations as an Indian citizen for ten
years from the date of detection, except for inclusion of his name in any electoral roll. After
the said expiry of the ten years she/he was deemed to be a citizen of India for all purposes,
unless she/he does not wish to be a citizen of India and makes such declaration under the

 The Authors are Academicians at Rajiv Gandhi National University of Law and University of Petroleum and
Energy Studies respectively.
26 India and the Challenge of Statelessness, A review of the Legal Framework Relating to Nationality, National

Law University Delhi, Report submitted to The United Nations High Commissioner for Refugees, Office of the
Chief of Mission to India and the Maldives, New Delhi. Retrieved from
<http://nludelhi.ac.in/download/publication/2015/India%20and%20the%20Cha llenges%20of%20Statelessness.p
df>

180
Citizenship Act. The provision further states that the name of such person was to be re-enrolled
in the respective electoral list. This provision is a positive development in the light of
exacerbating problem of statelessness.

But the lacunae besets the individuals who have entered India after 24th March, 1971, who are
left in a lurch without a nationality as well as no assurance of acceptance back into the country
from where they migrated.

The paper first begins by giving a historical context to the ongoing controversy and then
analyses the exercise in the light of the relevant legal provisions that are pertinent to the current
problem. It then explains how the threat of statelessness looms large on the individuals, who
are subjects of this exercise in the light of the glaring legal loopholes beset in the entire task
and steps that India can take in order to overcome this lacuna. Thus, the paper analyses the
provisions governing citizenship in the country as well international instruments that advocate
the right to nationality and examines them in the light of Citizenship Act 1955, especially in
the light of National Register of Citizens of Assam and puts forward suggestions as to steps
that can be taken to fill the voids that beset the exercise.

RELOOK AT THE HISTORY

Migration of a large number of individuals to a new place has in most cases led to backlash
from the indigenous communities , instead of being a precipitator of cultural exchange and
cohesiveness.27 In order to better understand the present controversy, it is essential to revisit
the doors of history to understand the changing demography of the state of Assam that fuelled
the problem in the first place.

The trail of migration to the state of Assam starts from the conquest of the British in the drive
for establishment of tea plantations in Assam in 1826.28 To foster this drive for establishme nt,
they required workers which they recruited from amongst the tribesmen of Bihar, since the

27 InNigeria, violent attacks against immigrant Ibo settlers precipitated the country's 1967 civil war. In Malaysia,
where many Chinese have lived for as long as the native Malays, "antagonism toward the Chinese is always
defined in terms of a conflict between indigenous residents., and Chinese migrants." In Assam, the presence of
migrant groups has caused similar tension.
28 Mridul Bhattacharjee &Sanjeeb Goswami, Assam, Agonies And Grievances at 2 (1985).At this time of early

British imperial expansion in India, it was necessary for East India Company officials to form political
subdivisions of the country. They had no perspective of India as a British dominion (b ecause it had not yet become
one), but nevertheless needed to provide a suitable administration machinery for the territory that came
intermittently into their hands. In the case of Assam, the territory was simply incorporated into the already existing
state

181
local Assamese had no interest in working on tea plantations. 29 This was the first phase of
migration to Assam, but it hardly posed any significant constraints since the workers, came to
work as seasonal migrant labourers30 . The next group of migrants were the Bengalis, who
aided in the establishment of administrative set up in the state. 31 The seeds of resentment in the
indigenous over alienation from their own state were sown from this second pattern of
migration and exacerbated when Bengali was declared as the official language of the state of
Assam in 1831, which reinvigorated the drive to recruit more Bengalis in order to teach it as a
language in schools.32 This cultural alienation in their own state continued till Assam was
declared as the official language in 1873, with its usage in all the affairs of the state. The next
group of migrants were the Bengali Muslim farmers who utilized the vast tracts of land in
western Assam. Owing to the lack of technology in those days, these migrant workers lost all
touch with their indigenous homelands and imbibed the Assamese culture as well as langua ge
but with the increase in influx of the Bengali population in Assam, this cultural diffusion
suffered a setback and Bengalis began to emerge as a distinct group within the state 33 . Thus, a
visit to the doors of history is essential to gain a perspective to the problem as it stands today.

These bouts of migration that date back to our colonial masters led to an increase in the
population of Assam. Thus, the initial seeds of the struggle between the indigenous population
and the migrants can be attributed to our colonial masters who for their own economic interests
ignored the cultural divide that was germinating in the state as well as spurring the tussle for
control over the resources of the state between the two groups. This struggle was not unseen
by the colonial masters. To control the wave of immigration that was doing the rounds in the
state, the British introduced a form of Line system in 1920 that prohibited the migrants in
settling in certain areas of the state. 34 Another attempt to control immigration was the compact
colonization scheme that demarcated certain areas of the province specifically for the migra nt
workers and delineated land specifically for the Assamese people. 35

With the exit of the British from the country, came the problem of demarcating the boundaries
of the vast geographical entity that was haphazardly divided into the princely states and Britis h

29 Ibid.
30 Seasonal migration is a form of return migration. It is driven by seasonal peaks in labour demand, mostly in
agriculture
31 Myron Weiner, When Migrants Succeed And Natives Fail: Assam And Its Migrants 10 (1975)
32 3H.K. Barpujari, Assam: In the Days of the Company 266-67 (1963)
33 Robert G. Gosseline, Minority Rights and Ethnic Conflict in Assam, India, 14 B. C. Third World L. J. 83 (1994)

at 89.
34 Ibid.
35 Amiya Kumar Das, Assam’s Agony: A Socio-Economic And Political Analysis at 27 (1982)

182
India. This exit brought with it, the unprecedented movement of people across fluid frontiers
and porous borders. Such large scale movement fuelled the already tacit tension to one of overt
nature.

After the partition of country into India and Pakistan, with present day Bangladesh then known
as East Pakistan, a part of Pakistan. Now, there was no cap on the movement of people to and
fro India-Pakistan till 19th of July, 1950 when the Influx from West Pakistan (Control)
Ordinance 1948 was brought into operation, as a result of which the above mentioned date was
the threshold date for determining the citizenship rights of certain categories of migrants from
Pakistan to India.36 After this comes the Nehru Liaquat Pact37 and then the highly controversia l
Immigrants ( Expulsion from Assam Act) which authorised the Government to have certain
categories of immigrants deported from the country38 . This provision of targeting certain
categories of immigrants is highly sceptical, since this comes across as unprecedented power
to the Government to target individuals in an arbitrary manner and have them deported. Thus,
a look at the pages of the past shows that the seeds of dissension were already sown as one
goes through the timeline of events but the interesting fact is that the legal conundrums in
addition to the chequered history has made it a highly sceptical exercise.

NATIONAL REGISTER OF CITIZENS: A SAVIOUR OR A CURSE

The first census of India took place in 1951 on the basis of which the National Register of
Citizens was compiled. A brief look at the pages of history shows that the seeds of tension were
already present, but then certain developments fuelled the fire such as the independence of East
Pakistan from Pakistan in 1971 which led to an influx of huge number of people. As already
mentioned partition of India brought along with unprecedented migration which was fuelled
by certain events even prior to the Independence of 1971 from Pakistan of East Pakistan such
as the construction of the Kaptai Dam in 196639 .

This huge influx resulted in a xenophobic movement being launched to strike the names of
outsiders’from the voters’ list and deport them back to their country of origin. The organisatio n

36 IpsitaChakravarty,Road to Citizens Register: A timeline showing the milestones in Assam’s history from 1947
to 2018, Available at <https://scroll.in/article/889005/road-to-cit izens-register-a-t imeline-showing-t h e-
milestones-in-assams-history-from-1947-to-2018>.
37 The Nehru Liaquat Pact was signed after six days of talks between India and Pakistan ensuring the rights of

minorities on both sides. In respect of migrants from East Bengal, West Bengal, Assam and Tripura, where
communal disturbances have recently occurred, it said that refugees who returned by December 31st , 1950 would
be entitled to get back their property.
38 Supranote 11
39 Supranote1 at 57.

183
at the helm of this movement was All Assam Students’ Union ( hereinafter referred to as
AASU) formed on August 8, 1967.40 Amidst all such tension came an accord between the
Government , AASU and the All Assam Gana Sangram Parishad ( hereinafter referred to as
AAGSP) according to which all the persons who came prior to 1 January 1966, were to be
declared as Indian citizens under the ambit of Indian Citizenship Act, 1955. 41 Those people
who moved to India after January 1966, and up to March 24, 1971, were to be identified and
enrolled as 'foreigners' according to the arrangements under the Foreigners Act, 1946 and the
Foreigners (Tribunals) Order, 196442 . This arrangement was likewise also extended to
individuals whose name were at that point present on the electoral rolls in Assam or other place,
and called for erasure of their names from the same43 .

But before going into the nittigritties of the exercise of National Register of Citizens, certain
points need due consideration in this regard, the international community has put in place a
common framework for countries to prevent and reduce statelessness within their domestic
populations. The two main conventions in this regard are the 1954 and 1961 Conventio ns,
which lay out positive obligations on contracting states. The Convention relating to the Status
of Stateless Persons was adopted on 28 September 1954 and entered into force on 6 June 1960.
It establishes a framework for the international protection of stateless persons and is the most
comprehensive codification of the rights of stateless persons yet attempted at 12the
international level. It seeks to provide basic fundamental rights and freedom from
discrimination against stateless persons. In the long term, it seeks to improve and regulate the
status of stateless persons through international agreements. The next document is the
Convention on Reduction of Statelessness was adopted by the United Nations General
Assembly on August 30, 1961. This is the second international instrument that directly deals
with the issue of statelessness. While the 1954 Convention provides for acknowledgment of

40 Prior to its formation, there were certain events such as the passage of a bill in Assam Legislative Assembly, to
make Assamese the only official language of the state in retaliation to which the Bengali language movement was
launched in the Barak Valley. Then on September 23, 1964, the Centre issued the Foreigners’ Tribunal Order
under the Foreigners ‘Act 1946. It mandated the setting up of tribunals’ with the task of identifying t he
Foreigners’.
41 Section 6A (Special Provisions as to Citizenship of Persons covered under the Assam Accord) of Citizenship

Act, 1955. Retrieved from http://mha1.nic.in/pdfs/ic_act55.pdf


42 .Paragraphs 5.1 to 5.4 of the Assam Accord, 1985. Retrieved from

http://peacemaker.un.org/sites/peacemaker.un.org/files/IN_850815_Assam%20Accord .pdf
43 Paragraph 5.4 of the Assam Accord, 1985. Ibid

184
stateless persons as a category in itself, the Convention of 1961 provides a directive to countries
for preventing and reducing statelessness itself.44

On reading the provisions of the 1954 and 1961 Conventions, the fundamental princip les
reflected in the Conventions are:

1. Avoidance of Statelessness. Incorporating such provisions in the domestic legislative


frameworks of nations that prevent a person from becoming stateless.

2. Reduction of statelessness. Encouraging such changes in domestic legal frameworks that


allow a person to embrace the nationality of a nation, if otherwise the person would have been
stateless.

3. Prevention of statelessness amongst children. Preventing statelessness of a child by adapting


requisite legislative amendments and administrative procedures to secure a child against
becoming stateless.45

But the irony is that India hasn’t ratified either of these Conventions that are central to the
prevention of statelessness. But despite the non-ratification by India, there are certain
provisions in other international documents such as the Universal Declaration of Human
Rights, to which India is also a party which under Article 15 explicitly lays down,

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.46

But the catch lies here that the article does not bind the contracting states to grant nationality
as a matter of right nor does it explicitly put the onus on the states to grant one, it simply creates
conditions of not creating situations where a person might be deprived of his nationality. Thus,
binding India to frame its policies and acts in such a manner that they do not deprive any
individual of his/ her citizenship or create ambiguity in relation to the same, a lacuna which the
exercise does not address as will be seen in the forthcoming explanation.

44 Supranote 1 at 60.
45 United Nations. (1961). International Convention on Reduction of Statelessness. Retrieved from <
http://www.unhcr.org/3bbb286d8.html.>
46 United Nations. (1948). The Universal Declaration of Human Rights. Retrieved from
<http://www.un.org/en/documents/udhr/>

185
The next international legal instrument that deserves mention here is the International Covenant
on Civil and Political Rights, 1966 whose Article 2 deserves special mention,

Article 2

1. Each State Party to the present Covenant undertakes to respect and to ensure to all individ ua ls
within its territory and subject to its jurisdiction the rights recognized in the present Covenant,
without distinction of any kind, such as race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or other status.

2. Where not already provided for by existing legislative or other measures, each State Party to
the present Covenant undertakes to take the necessary steps, in accordance with its
constitutional processes and with the provisions of the present Covenant, to adopt such
legislative or other measures as may be necessary to give effect to the rights recognized in the
present Covenant.

3. Each State Party to the present Covenant undertakes:

(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall
have an effective remedy, notwithstanding that the violation has been committed by persons
acting in an official capacity;

(b) To ensure that any person claiming such a remedy shall have his right thereto determined
by competent judicial, administrative or legislative authorities, or by any other competent
authority provided for by the legal system of the State, and to develop the possibilities of
judicial remedy;

(c) To ensure that the competent authorities shall enforce such remedies when granted. 47

The impact of the above Articles is that the Covenant obliges the States to act on the issues
which impact the rights under the Covenant with no type of segregation on the basis of race,
sex, dialect, religion and so on.

These are the relevant international instruments which India has to adhere to despite its non-
ratification of the two most important documents pertaining to statelessness.

47 J.M.M. Chan (1991). Nationality as a Human Right. Human Rights Law Journal. Vol. 12 (1- 2). (pp. 1-14).

186
NATIONAL REGISTER OF CITIZENS AND THE PERSONS COVERED UNDER
THE ASSAM ACCORD

The initial move towards refreshing the NRC of 1951 was taken, when a tripartite gathering
between the Centre, the Assam government and AASU was held to audit the advancement
made in the execution of the Assam Accord. At that gathering, it was chosen that the Assam
government will take up and complete in a span of two years the way toward refreshing the
NRC of 1951 by including the names that show up in the 1971 voters' rundowns and those of
their relatives. However, no endeavours were made either by the State government or the Union
government in consequent years to refresh the NRC. The issue was again raised by AASU at
the April 2009 progress meeting, on which event the Assam government gave a confirma tio n
that it would begin the way toward refreshing the NRC. Following the affirmation, in June
2010 a pilot venture was started in two revenue circles – Barpeta and Chayagaon. In any case,
the venture was suspended after fierce challenges by the All Assam Minority Students Union
(AAMSU), which claimed that there were various abnormalities in the NRC. 48

While coming governments have been very hesitant to refresh the NRC of 1951 because of
different political dimensions and personal stakes, the Hon'ble Supreme Court took up the issue
when it was brought before it. hearing the batch of petitions on the same issue, particularly the
one by Assam Public Works, a NGO, in July 2009 in which it had appealed for the erasure of
unlawful voters from the voters' list of Assam and looked for updation of the NRC as a majo r
aspect of that procedure, the Supreme Court, dismissing the postponing strategies of the Union
and state governments, requested them to start the way toward refreshing of the NRC in Assam.
As needs be, the Ministry of Home Affairs, in meeting with the Ministry of Law and Justice,
issued the notice for beginning the exercise, by refreshing the NRC and delegated Prateek
Hajela on January 28, 2014 as the State Coordinator for the NRC. As far as it matters for its,
the Supreme Court comprised a Committee "to deal with any rectifications that would be
required concerning the procedure in the planning of the NRC." Initially, the date for bringing
out the culminating draft of the NRC was set as at the very latest on or before January 1, 2016.
But upon the demand of the State Coordinator, the Court consented to expand the due date by
two years.49

48 Pushpita Das, Publication of the National Register of Citizens: a positiv e step, but what next, Available at
<https://idsa.in/idsacomments/publication-of-the-national-register-of-citizens_pdas_040118>
49 Ibid

187
But the legal lacunae lies here, The subject of nationality of those individuals under the Assam
Accord is given in Section 6A of the Citizenship Act, 1955. Under this Section, subsections
(4), (5) and (6) express that an individual who has been distinguished to be a foreigner (de fined
accordingly under Section 2(3)(a) of the Foreigners Act, 1946 and the Foreigners (Tribuna ls)
Order, 1964) shall have equivalent rights and commitments akin to an Indian citizen for a
period of ten years from his detection, with the exception of consideration of his/her name in
any electoral roll. After the said expiry of the ten years, s/he would be regarded to be a nationa l
of India for all reasons, except if s/he didn't wish to be a native of India and made such an
assertion under the Citizenship Act. The arrangement further expresses that the name of such
an individual was to be re-enrolled in the electoral list. This has all the features of being an
appreciated arrangement, as it endeavours to anticipate occurrences of statelessness in a
circumstance that may some way or another have created a gigantic danger of making
statelessness on a substantial scale.

In any case, the Assam Accord does not address the situation of those people who were found
to have entered India after March 25, 1971. Such 'foreigners' kept on being identified, erased
from electoral rolls, and thrust into a state of exile. The arrangements overseeing such people
likewise does not consider deciding their nationality before ousting them to a nation that may
likewise not acknowledge them or naturalize them as subjects. The Citizenship Act is in this
manner quiet about the nationality question of such people who have come to India and been
here since 1971.

The combined effect of the Assam Accord and corollary arrangements in the Citizenship Act
disregard to give adequate protection against statelessness to the future progeny of individ ua ls
who may find themselves stateless because of the operation of these arrangements. Such people
however dwelling in India end up stateless as they neither have an Indian nationality nor are
perceived natives of some other country. On examining the relevant provisions, pertaining to
nationality in the Citizenship Act, 1955 just as under the Assam Accord, due thought seems to
have been given to settling issues identified with illegal migrants but insufficient consideratio n
appears to have been given to issues of nationality with respect to stateless people, or to systems
to decrease and mitigate statelessness.

WAY AHEAD

In order to resolve such a legal quagmire, a proper framework needs to be put in place. About
80 nations have consented to the 1954 UN Convention on the Status of Stateless Persons. A

188
large number of them have furthermore set up national assurance strategies for citizenship. For
instance, France actualized such a framework for assurance during the 1950s. Different states
that have pursued it as in Italy, Spain, Latvia, Hungary, Mexico, Moldova, Georgia and the
UK.50 . India should also follow suit.

As the Indian government right now has the on-going tasks of Aadhar and the NPR51 , it is
prescribed that a different class of 'stateless people's be added to the information gathering
engaged with these two ventures. This may additionally encourage the government on
increasing subjective and quantitative information on statelessness, and help in further research
on the states of stateless people. The authority could base itself in different states so as to deal
with the assurance method at the grassroots dimension.

This can go a long way in aiding the individuals left in a lurch due to the legal quagmire that
abounds the exercise of NRC.

50 European Network on Statelessness. (2013). Statelessness: determination and the protection status of stateless
persons. Retrieved from http://www.refworld.org/pdfid/53162a2f4.pdf
51 Supranote 1 at 99.

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NATIONAL REGISTER FOR CITIZENS AND IT’S LEGAL FRAMEWORK IN
INDIA

- Shivam Tiwari

INTRODUCTION:

The National Register of Citizens contains the names of all Indian citizens. Only once before
has an NRC been prepared, in 1951. The registers were kept in the offices of the deputy
commissioners and sub-divisional officers. The 1951 NRC is now being updated for Assam,
which has had a longstanding foreigner problem, to weed out illegal immigrants and deter
further influx. The state government machinery under the Registrar-General of India.
Citizenship being a subject on the Union List, the Centre is responsible for the policy decisions,
guidelines and funds for the NRC update. Updating the NRC has been a decades-old demand,
with various modalities and cut-off dates suggested over the years and many rounds of talks
held. Things began moving after a May 5, 2005, tripartite meeting among the Centre, Assam
government and All Assam Students' Union. Chaired by then Prime Minister Manmohan
Singh, the meeting decided to update the NRC. The Supreme Court got involved in 2009 after
an NGO, Assam Public Works, filed a writ petition for the deletion of illegal migrants' names
from voter lists in Assam. Pilot projects for updating the NRC started in two blocks (in Kamrup
and Barpeta districts) in June 2010 but were stopped the following month because of law-and-
order problems. In July 2011, the state government set up a cabinet subcommittee to simplify
the procedure. In May 2013, the apex court directed the Centre to finalise the modalities by
July 16, 2013. In 2014, the court directed the government to resume updating the NRC and has
since been monitoring the process. Distribution and receipt of filled- in NRC application forms
began in 2015. Acceptance of applications ended on August 31, 2015. The verification process
started on September 1, 2015.

Existence of name in the legacy data: The legacy data is the collective list of the NRC data
of 1951 and the electoral rolls up to midnight of 24 March 1971.

Proving linkage with the person whose name appears in the legacy data.

 The Author is a student of Himachal Pradesh National Law University.

190
CITIZENSHIP AND ASSAM

Citizenship has always been a vexatious issue. Speaking about it before the Constitue nt
Assembly, Dr Ambedkar said, “Except one other article in the draft Constitution, I do not think
that any other article has given the drafting committee such a headache as this particular article.
I do not know how many drafts were prepared and how many were destroyed as being
inadequate to cover all the cases which it was thought necessary and desirable to cover.”

Ultimately, the framers of our Constitution made stop-gap provisions on citizenship. The
Parliament was left with plenary powers to make laws of a more permanent nature. The
Parliament did so in 1955, with the Citizenship Act. Defining Indian citizenship was, in the
context of Assam’s history, thus even more problematic. The Assam province of 1947 had a
diversity hardly matched by any other geo-political entity of a similar size. Migration within
British India became a source of social and political conflict since at least the middle of the
19th century. Specific provisions to deal with Assam were demanded even in the Constitue nt
Assembly. A special law for the State of Assam, i.e. the Immigrants (Expulsion from Assam)
Act of 1950, was enacted soon after the commencement of the Constitution -– even before a
citizenship law had been drafted for the rest of the country.

LIMITATIONS OF NRC 1951:

On the basis of the Census of 1951, the National Register of Citizens was first prepared. But
this NRC of 1951 was an incomplete one, as not all areas of the state could be covered. Many
riverine, chars and remote regions could not be reached by the enumerators. Moreover, Assam
also witnessed communal violence while the process of the NRC was initiated. Statistics
reveals that 53,000 Muslim families fled to the then East Pakistan between 1948 and 1950 due
to communal violence in Western Assam. If we assume a number of five to seven persons in a
family on an average, and multiply that with the number of the figure of families that fled, it
becomes 265,000 to 371,000 who left for East Pakistan from Assam in the wake of the
communal riots of 1950. Latter the Nehru-Liyaqat pact of 8th August 1950 provided them a
window of two years to return to India. In between, the NRC process was completed in Assam.
Thus a large number of Muslims were dropped/missing from the total figure of the 1951 NRC
and the census. But when in the next Census of 1961 those dropped out citizens’ names were

191
enlisted, the growth rate of Muslims in Assam was seen as very high. Unfortunately the
government did not bother to update the NRC of 1951 as was expected. 1

Who all have been left out?


Out of the 40.07 lakh applicants who have been left out of the final draft NRC released, on
Monday, 2.48 lakh applicants have been kept on hold including the D-Voters (doubtful voters
who have been disenfranchised on account of failure to prove citizenship), descendants of D-
voters and persons whose cases are pending before the foreigners tribunal. The state however,
has not revealed the reason for keeping others on hold.

The Supreme Court steps in.

Around the same time (2009), certain petitions were filed before the Supreme Court challenging
the validity of Section 6A of the Citizenship Act. Certain other petitions sought a time schedule
for the updation of the NRC.

The cases before the Court presented a classic instance of the “Political thickets” doctrine.
Questions of nativism, identity politics and xenophobia were brought up, after 30 years of the
enactment of amendments to the Citizenship Act. The Supreme Court has usually declined to
get into the political thicket. In this instance, it did.

In doing so, it made certain observations which legitimised the scare-mongering that politic ia ns
had resorted to for years. For instance, the Court in Assam Sanmilita Mahasangha noted that:
“As a result of population movement from Bangladesh, the spectre looms large of the
indigenous people of Assam being reduced to a minority in their home state. Their cultura l
survival will be in jeopardy, their political control will be weakened and their employme nt
opportunities will be undermined.”

These observations are based on little evidence and position themselves on a unidimensio na l
approach to Assamese history as seen through Axomiyaeyes.The Court also passed wide-
ranging directions for the improvement of border security and setting up of foreigner s’
tribunals. Strangely, it also directed the Union Government to enter into negotiations with
the Bangladesh Government, to streamline the process of deportation. It is difficult to think of

1 https://csss-isla.com/nrc-updation-in-assam-prospects-and-challenges/

192
another instance of a Constitutional Court passing directions which lie in the realm of foreign
policy.

CONSTITUTIONAL SAFEGUARDS AGAINST RIGHTS DEPRIVATION:

India’s constitution comprises of several sections that guarantee certain universal rights to
citizens of the country and foreign nationals alike. They include Article 21, which guarantees
the right to life and personal liberty; Article 21A that offers the right to elementar y
education; Article 22 that offers protection against arrest and detention in certain cases;
and Article 14 that guarantees equality before the law and equal protection of laws.

These guarantees that the Indian Constitution offers to all persons on Indian territory do not,
however, apply to ‘enemy aliens’—citizens of countries that are at war with India—as laid
down by Article 22(3). However, Bangladeshi migrants in Assam do not fall under this
category as their country of origin is not hostile towards India.

Yet, in the case of Bangladeshi immigrants in Assam, there remains a grey area wherein the
migrants, by virtue of not carrying any citizenship documents of Bangladesh, are not ‘foreign
nationals.’ This allows for conditions of long-term statelessness to prevail, while also
highlighting the gap in necessary legislation.

However, India is party to several international instruments that prohibit active


disenfranchisement of any set of peoples. For example, by virtue of its ratification of the
International Covenant on Civil and Political Rights (ICCPR), in conjunction with Article 51(c)
of its own Constitution, India is legally bound by its provisions that ensure certain global
standards in civil-political rights to citizens. Article 2(1) of the covenant says:

“Each State Party to the present Covenant undertakes to respect and to ensure to all individuals
within its territory [emphasis added] and subject to its jurisdiction the rights recognised in the
present Covenant, without distinction of any kind, such as race, colour, sex, language, religio n,
political or other opinion, national or social origin, property, birth or other status.”

Subsequent sections lay down a broad range of rights, several of which are concomitant to
provisions of the Indian constitution. Moreover, India is also party to the Convention on
Elimination of all Forms of Discrimination against Women, and the Convention on the Rights

193
of the Child, both of which mandate the Indian state to offer concrete civil, political, and social
rights to women and children – citizens or otherwise.

Indian lawmakers, therefore, need to pay closer heed to the domestic and international legal
framework on rights that India is bound by before drafting reckless and inhumane policies.

Cross-border migration of various forms remains a stark reality today, especially in regions
plagued by conflict, discrimination, and socioeconomic deprivation. The ongoing NRC drive
and the foreseeable government plan to decertify millions of migrants and unregistered
residents of Assam is a potent opportunity for legal thinkers and commentators to develop the
Indian legal doctrine on migration, asylum, and statelessness. 2

INDIAN LEGAL DOCTRINE ON STATELESSNES

In India, the legislation around statelessness is scattered and insufficient. There is no


constitutional or legislative provision that directly deals with this issue. The absence of a single
refugee law further only deepens the state’s incapacity to effectively tackle statelessness -
related situations. Thanks to this legal void, state policy on migrants (both distress and
economic) without citizenship of a second country remains grossly arbitrary.

For example, India treats Tibetans who fled their homeland after the 1959 Chinese invasio n
and members of the Rohingya community who fled theirs after the 2012 Rakhine communa l
riots differently. While the former is entitled to a host of state-sponsored largesse like proper
settlement areas, educational and health benefits, Registration Cards (RCs), economic
opportunities, and even citizenship rights for those born between 1950 and 1987, the latter
continue to languish in trying conditions under partial support of the UNHCR. 3

Moreover, India has not ratified the 1954 UN Convention Relating to the Status of Stateless
Persons or the 1961 Convention on the Reduction of Statelessness – both of which are crucial
directive instruments. At the same time however, the 1961 Convention contains certain sections
– like Articles 8(2)(a), 8(2)(b), 8(3) – that permit states to deprive foreigners of citizenship in

2 http://ciril.org.in/legal-voids-in-indias-policies-on-migrants-and-stateless-people-a-case-study-of-assams-
national-register-of-citizens-nrc/
3 http://ciril.org.in/legal-voids-in-indias-policies-on-migrants-and-stateless-people-a-case-study-of-assams-

national-register-of-citizens-nrc/

194
specific cases of deliberate misrepresentation, fraud, and non-notification to authorities. Hence,
even if India had signed the Convention, these sections could apply to Bangladeshi migrants in
Assam. This would, however, be done through fair legal procedures rather than arbitrary state
policies.

Nevertheless, it is crucial to note that conditions of long-term statelessness are often triggered
by certain inherent conditions of displacement. Migrants who enter another country without
formal documentation, on several occasions, do so under extreme conditions of socioeconomic
deprivation or political persecution. Expecting such disenfranchised people to produce
identity/legacy documents after a long period of stay is harsh and impractical. In many ways,
this is the case for Bangladeshis who came to Assam in search of better economic prospects
and social security.

NRC AS AN INFORMATION INFRASTRUCTURE

Today’s press reactions resounded the uneasiness of the legislature concentration on making a
remarkable achievement dependent on which it would be free from any mistake. In contrast to
web based life, media reactions on site managed chiefly with allegations of NRC refresh (as
opposed to the internet based life encounter among clients and NRC Team) process being
careless about guarding submitted client reports, budgetary reductions and on ground
inconsistencies essentially amid check. On numerous checks the NRC organization took care
of media occupied with occupying consideration back to the accomplishment of NRC group
and encouraging people in general to not lose trust in this 'productive' framework for an illic it
settler free Assam independent of one‟s dialect, religion or other foundation.

Social media played an important role in sustaining an interactive environment, different from
the paper-based bureaucratic interactions with the public. Online queries included document
clarification, verification and specifically queries regarding the post draft process, as well as
helpline numbers and other resources which had been advertised on multiple posts on social
media. Unlike official interactions in government offices, the 'digital circulation' and
dissemination of official information and user feedback represent specific bureaucratic

195
processes and public response simultaneously circulating through the NRC informa tio n
infrastructure.4

NRC IN TRIPURA

Just three months after the final draft of the National Register of Citizens for Assam was
released, the Supreme Court has tagged a petition seeking a similar process for Tripura. The
petition now tagged to the Assam case was heard by a bench headed by the Chief Justice of
India, Ranjan Gogoi, on Monday. The petitioners, a group of activists from Tripura, sought a
process to identify illegal migrants and deport them from the State. They maintained that the
influx amounted to “external aggression” and that they have turned the tribal people into a
minority in their own native land. Much of the migration into Tripura occurred before the
creation of Bangladesh. The petition takes recourse to the 1993 tripartite accord signed by the
Government of India with the All Tripura Tribal Force that asked for the repatriation of all
Bangladeshi nationals who had come to Tripura after March 25, 1971 and are not in possession
of valid documents authorising their presence in the State. In fact, the petitioners go even
further than the terms of the accord to demand that the cut-off date for the recognition of
migrants should be July 1949, based on Article 6 of the Constitution. These demands must be
contextualised in the light of the developments in Tripura over the last four decades. As early
as in 1979, after years of struggle, the tribal people of the State had gained special autonomy
provisions, the institution of the Tripura Tribal Areas Autonomous District Council and
recognition of their spoken language, among other assurances. Since then, the empowerme nt
of the council and the protection of tribal rights have steadily eroded the significant tribal versus
non-tribal differences that once existed in the State. 5
Over the last three decades, multiple insurgent groups have ended violent struggles — either
quelled by force of law or as a result of conceding vital demands for preserving the gains made
by earlier tribal struggles. The judicial-bureaucratic process of hearing a petition to seek the
deportation of long-settled migrants is fraught with problems, not dissimilar to those already
being faced in Assam. The question of what awaits the four million people whose names did
not figure in the final NRC draft, and have been given a second chance to prove their
antecedents, still hangs in the balance. Notwithstanding the fact that the NRC process in Assam
has an overall popular legitimacy across most political parties, there is no answer to how the

4 https://cis-india.org/raw/infrastructure-as-digital-politics-media-practices-and-the-assam-nrc-citizen-
identification-project-draft-paper
5 https://www.thehindu.com/opinion/editorial/by-extension/article25208796.ece

196
deportation process could (or should) proceed. Embarking on any such bureaucratic exercise
without considering its deep humanitarian impact will only create new fault lines — especially
in a State like Tripura where there is no such unanimity of views on the NRC process. It will
undo years of work to bring about a reconciliation between Bengali-speaking and tribal people.
The Supreme Court should be cognisant of this while hearing the petition.

What does the Bill aim for?

With The Citizenship (Amendment) Bill, 2016, the government plans to change the definitio n
of illegal migrants. The Bill, introduced in the Lok Sabha on July 15, 2016, seeks to amend the
Citizenship Act, 1955 to provide citizenship to illegal migrants, from Afghanistan, Banglades h
and Pakistan, who are of Hindu, Sikh, Buddhist, Jain, Parsi or Christian extraction. However,
the Act doesn’t have a provision for Muslim sects like Shias and Ahmediyas who also face
persecution in Pakistan.6
The Bill also seeks to reduce the requirement of 11 years of continuous stay in the country to
six years to obtain citizenship by naturalisation.

Why all are opposing the Bill in Assam.

BJP's coalition partner Assam Gana Parishad has threatened to cut ties with the party if the Bill
is passed. It considers the Bill to work against the cultural and linguistic identity of the
indigenous people of the State. NGOs such as The Krishak Mukti Sangram Samiti and students'
organisation All Assam Students’ Union also have come forward opposing the Bill.
All Opposition parties, including the Congress and the All India United Democratic Front, have
opposed the idea of granting citizenship to an individual on the basis of religion. It is also
argued that the Bill, if made into an Act, will nullify the updated National Registration of
Citizenship (NRC).

‘ILLEGAL IMMIGRATION IN ASSAM NOT A RELIGIOUS ISSUE, BUT AN ETHNIC ONE’


The language of the Bangladeshis is different from what is spoken in Assam and Tripura.
During the partition, the people of East Pakistan were given the option and some of them did
not take that option. After that, too, they got the chance in 1965 and 1971. They did not come

6 https://www.thehindu.com/news/national/other-states/what-is-the-citizenship-amendment-bill-
2016/article23999348.ece

197
in then. So, why now? Now at the rate at which they have come, the Assamese people have
become a minority.7
Even if 500,000 people are omitted from the final list, we are looking at a crisis that is larger
than the Syrian and Rohingya exodus. When you started the movement, were you prepared to
witness a civil backlash that the state may be grappling with in the future?
Let the centre take the onus for it. Why should Assam suffer alone every time? Like in Tripura,
the indigenous Assamese population are now a minority. The crisis is currently going on. The
Bodos have been sidelined by the immigrants.

CONCLUSION:

Perhaps one needs to return and take a look at our Constitution and rehash ideas of the fringe,
the general concept of citizenship. We have to go past hard definitions and take a gander at the
obscuration of these ideas. A resident might be characterized regarding certain properties. Be
that as it may, the inquiry is, how altruistic or plural is such a definition? Would we be able to
do this with a specific measure of turmoil to support a plural vision of majority rule
government? These are the issues Assam raises however our policy makers don’t consider it
necessary to be talked about. How would we make an increasingly accommodating,
approachable hypothesis of citizenship where negligible gatherings endure, where travelers and
other liquid gatherings are permitted to pursue their life lines? Would we be able to think about
a country state with porous outskirts and a fluid feeling of citizenship which makes life
progressively confident for the displaced person? These are questions not for the removed
future, but rather challenges this decade should survive. We need to reexamine the Assam in
us.

The lack of a coded state policy on asylum seekers, migrants and stateless people is precisely
what has created a quasi-legitimate space for the government to strip migrants off all social,
economic, and statutory rights. However, while Sonowal’s and Sarma’s assertions serve well
to placate the local Assamese electorate, they may be in direct violation of pivotal constitutio na l
provisions that guarantee bare minimum rights to everyone in Indian territory.

WEBLIOGRAPHY:

7 www.livemint.co m/Po lit ics/Qfa07o mJLXJqcdLrLLP10O/Illegal-immigration-in-Assam-not-a-relig ious-issue-

but-an.html.

198
https://csss- isla.com/nrc- updation-in-assam-prospects-and-challenges/

http://ciril.org.in/legal- voids- in- indias-policies-on- migrants-and-stateless-people-a-case-


study-of-assams-national-register-of-citizens-nrc/

https://cis- india.org/raw/infrastructure-as-digital-politics- media-practices-and-the-assam-nrc-


citizen-identification-project-draft-paper

https://www.thehindu.com/opinion/editorial/by-extension/article25208796.ece

https://www.thehindu.com/news/national/other-states/what- is-the-citizenship-amendment-
bill-2016/article23999348.ece

www.livemint.com/Politics/Qfa07omJLXJqcdLrLLP10O/Illegal- immigration- in-Assam-not-


a-religious- issue-but-an.html

199
NATIONAL REGISTER OF CITIZEN: LEGAL FRAMEWORK AND
IMPLEMENTATION

- Tejas Pratap Singh

INTRODUCTION

“National Register of Citizens” the concept is direct and clear by its name, a register
containing names of Indian Citizens. This was prepared first in 1951 after the conduct of the
Census of 1951for the purpose of making person legal citizen of India. It is being updated to
weed out illegal immigration from Bangladesh and neighboring regions. 1 These registers covered
each and every person enumerated during the Census of 1951 and were kept in the offices of Deputy
Commissioners and Sub Divisional Officers according to instructions issued by the Government of
India in 1951.2 It was done in respect of each village showing the houses or holdings in a serial
order and indicating against each house or holding the number and names of persons staying
therein, and in respect of each individual, the father’s name/mother’s name or husband’s name,
nationality, sex, age, marital status, educational qualification, means of livelihood or
occupation and visible identification mark. This was done by copying out in registers the
particulars recorded during the Census done in 1951. This NRC was prepared under a directive
from the Ministry of Home affairs (MHA). These registers covered each and every person
enumerated during the Census of 1951 and were kept in the offices of Deputy Commissio ne rs
and Sub Divisional Officers according to instructions issued by the Government of India in
1951. Later these registers were transferred to the Police in the early 1960s. 3

HISTORICAL BACKGROUND

The first Assam NCR list was formed in 1951, when first Census of India was conducted post-
independence, to list down the Indian citizens living in Assam, while listing out the illega l
immigrants. In 2013, the Supreme Court of India ordered to carry out the updating process of
NRC to the Assam government. The main concern of the apex court was to address the issue
of growing illegal immigrants from the neighbouring country of Bangladesh and other regions
on the basis of Citizenship Act, 1955, in accordance with Assam Accord of 1985.

 The Author is a student at Galgotias University.


1 https://www.insightsonindia.com/wp-content/uploads/2018/08/National-Register-of-Citizens-NRC.pdf
2 https://www.financialexpress.com/india-news/exp lained-in-brief-what-is-assams-national-register-of-cit izens-

updation-and-how-it-will-impact-illegal-immigrants/997223/
3 http://www.nrcassam.nic.in/wha_nrc.html

200
In 2014, the Government of India with the Assam government, initiated the process of listing
down the illegal immigrants that have crossed the border into the state of Assam after 1971 or
prior to that but do not own any official identification document of them or their ancestors prior
to 1971 or 1951.

Assam historically has seen an influx of immigrants. Before independence, the britishe rs
brought in plantation workers from present-day Bihar, Jharkhand, West Bengal, Andhra
Pradesh and Telangana. In 1904, Bengal was divided into East Bengal, West Bengal and
Assam.Post the 1971 war, a large number of people migrated from East Pakistan to Assam and
West Bengal. In 1979, the leaders of the All Assam Students’ Union (AASU) started an
agitation demanding identification and deportation of illegal immigrants. Finally, in 1985, the
Assam Accord was signed after which the agitation culminated.

Following the Accord, an amendment to the Citizenship Act of 1955 under section 6(A) gave
Indian citizenship to all migrants who came to Assam before the midnight of March 24, 1971.
The date March 24, 1971, was decided because the Bangladesh Liberation war started on
March 25, 1971.4 The first draft of the NRC bore the names of 19 million Indian citizens living
in Assam, out of 32.9millions who had submitted their documents to assert their citizenship. 5

The historical backdrop of Muslims in Assam goes back to the eighth century when, as
indicated by a few researchers, Turks and Arab brokers and mariners went to the Brahmaputra
Valley and settled in the Darrang district. 6

After the British attached Assam as a component of the Bengal Presidency in 1826, vagrant
workers were acquired from focal India to work in tea manors and this required the generatio n
of more nourishment, which the nearby populace couldn't oversee alone. Besides, a spurt
popular in the jute advertise required an expansion in jute development in Bengal, which again
was unrealistic. Both these reasons were behind the movement of Muslim agriculturists of East
Bengal to Assam, first in little numbers. Be that as it may, by the turn of the twentieth century,
there was a colossal flood of transients to the scorches, or waterway islands, in lower Assam
from Bogra, Rangpur, Pabna and Mymensingh locale of Bengal.

4 https://thelogicalindian.com/awareness/national-register-of-citizens/
5 https://thediplomat.com/2018/08/indias -national-register-of-citizens-and-assams-dilemma/
6 https://economictimes.indiatimes.com/news/politics -and-nation/national-register-of-citizens-in-assam-issue-of-

illegal-foreigners-

201
The 1911 Census demonstrated that the quantity of transients had shot up to more than 1,
18,000 in Goalpara region, about a fifth of the region's populace, from 49,000 of every 1891.
The all out number of Muslim settlers in the Brahmaputra valley in 1911 was 2, 58,000. After
the greater part of the cultivable land had been possessed in Goalpara, they moved to differe nt
parts of lower Assam.

Therefore, in the initial three many years of the century, the extent of Muslim populace in
Assam had shot up from 13.6% to 22.8%, causing much distress among the local inhabita nts.

During the 1920s, the 'Line System' had been presented, as a feature of the British separation
and principle strategy, under which a nonexistent line was attracted to isolate workers from the
indigenous tribal’s. However, in 1939 the commonplace government headed by Syed
Muhammad Saadullah welcomed East Bengali Muslims to settle in Assam under a 'Develop
More Food' plot — too much resistance and analysis. Between 1985 and July 2012, over 55,000
people, and not lakh as AASU and similar organisations claimed, were identified as foreigne rs
by tribunals under Illegal Migrants (Determination under Tribunals) Act, 1983, and Foreigners
Tribunals, but only 2,442 were deported or pushed back. 7

NEED OF NRC8

The prime explanation behind the usage of NRC was to identify and kill unlawful outsiders. In
any case, in this procedure, numerous other individuals because of a few inconsistencies have
not been enrolled in the refreshed draft of NRC. For example, because of absence of some
report or false notions in a record, numerous individuals from a solitary family have not been
incorporated into the refreshed rundown. A few people have additionally battled that as surge
is a yearly calamity in the district of Brahmaputra, there has been loss of archives, land shifts,
change of location and so on.

Because of such reasons, numerous individuals have fallen under the 40 lakh individuals.

NRC UPDATING9

Following, the tripartite gathering between the Center, Assam Government and All Assam
Students' Union, it was chosen that NRC ought to be refreshed as it was very requested since

7 https://economictimes.indiatimes.com/news/politics -and-nation/national-register-of-citizens-in-assam-issue-of-

illegal-foreigners-
8 https://blog.ipleaders.in/nrc-assam/
9 https://blog.ipleaders.in/nrc-assam/

202
decades. The issue got even dull, when in 2009, Assam Public Works (NGO), recorded a writ
request of to erase every unlawful transient's names from voter records in Assam as they can't
be considered as an Indian Citizen in any case for such a sacred right. Along these lines, the
Supreme Court additionally got associated with it.

To ‘detect’ the illegal migrants following acts are used-

1. The Foreigner’s Act, 1946 along with the Foreigner’s (Tribunal) Order, 1946.
2. The passport (Entry into India) Act, 1920.
3. Passport Act, 1967.
4. The Citizenship Act, 1955.

In the updated NRC, the following were elected to be enlisted in the updated one, which
are:

1. People whose names are mentioned on the NRC 1951


2. People whose names are on any voter list in Assam up to March 24, 1971.
3. All Indian Citizens who moved to Assam after March 24, 1971
4. Descendants of the above mentioned
5. People originally from Bangladesh who registered themselves with the
6. Foreigner Regional Registration Office ( FRRO) between January 1, 1966, to March
24, 1971, and were declared as Indian citizens by the Foreigner Tribunal
7. People who can provide admissible documents declaring themselves in a legal way
citizen of India.

On July 30, 2018, this register was updated as per the provision of The Citizenship Act, 1955
and The Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules,
2003. However, out of the 3.9 crore (approx), people had applied; only 2.9 crore of them were
registered in the final draft or the updated NRC. This has led to leaving out about 40 lakh of
people of Assam from the register, which is why now there is a huge chaos.

LEGAL STATUS OF PERSONS (NON-ASSAMESE)10

10 https://blog.ipleaders.in/nrc-assam/

203
The Chief Minister of Assam has stated that the people who are not in the list of the NRC
would not be ‘eligible’ to receive fundamental rights but, in the eyes of the law, they are still
protected with their fundamental rights as they are divided in two, those which are exclusive ly
for the citizens of India and those which are for all the people in India.

As indicated by Article 14 of the Indian Constitution, it expresses that "The State will not
deny to any individual balance under the watchful eye of the law and equivalent
assurance of laws inside the domain of India".

Likewise, Article 20, 21,21A and so on which is accessible for "all people" in regard of
conviction for offenses, Right to Life, Education, Religion, and so on. Similarly, Article 32
accessible for all people in India with respect to the requirement of Fundamental Rights by
setting up the Supreme Court as the Court of First Instance. Be that as it may, these people
won't have the directly to cast a ballot as it is accessible for the natives of India. The rest of the
general population would be formally announced to be non-subjects however and be perceived
as non-native.

As indicated by Clause 5.4 of the Assam Accord, the general population who have been
identified as outsiders all the while, will be erased from the appointive comes in power and
such individual needs to enrol themselves before the Registration Officers of their separate
locale as per the arrangements of the Registration of Foreigners Act, 1939 and the Registratio n
of Foreigners Rules, 1939."

LEGAL PROVISIONS11

An “illegal migrant”, according to the Citizenship Act, 1955, means a foreigner who has
entered India:
(i) Without a valid passport or other travel documents or

(ii) With a valid passport or other travel documents but remains therein beyond the
permitted period of time.

Articles 5-9 of the Indian Constitution deal with citizenship. While Article 10 guarantees the
continuance of citizenship, Article 11 grants Parliament the right to regulate citizenship.12

11 https://economictimes.indiatimes.com/news/politics -and-nation/national-register-of-citizens-in-assam-
12 https://www.firstpost.com/india/assam-nrc-proof-of-citizenship-demands-in-the-state-definition-of-illegal-

migrant-reveal-

204
Lists were maintained in 1951 during the process of immigration was taking place in Assam.
To apply for incorporation in the NRC, one's name or one's progenitor's name must be in the
1951 NRC or in any voter list up to the midnight of March 24, 1971, the cut-off date settled
upon in the Assam Accord. On the off chance that the candidate's precursor's name is on any
of these rundowns, the candidate should demonstrate his relationship to his predecessor by
delivering his board or college endorsement, proportion card or some other legitimate ly
adequate report. An Indian subject from another state who moved to Assam after the
predetermined date isn't qualified for incorporation in the NRC however he can keep on casting
a ballot.

In addition, according to Section 6A of the Citizenship Act, 1955 the individuals who
originated from Bangladesh somewhere in the range of 1966 and 1971 should enlist themselves
with the Foreigners Regional Registration Officer, and will be incorporated into the NRC, yet
won't have casting a ballot rights for a long time from the date of enrolment.

Section 6A and Section 3 of the Act, which gives citizenship by birth in contradiction of the
Assam Accord; have been tested in the Supreme Court. Individuals who have been announced
doubtful can also apply but their names will be included only after being cleared by the
Foreigners Tribunal.13

ROLE OF APEX COURT14

Supreme Court of India played a vital role in the immigration problem by delivering certain
judgments to solve the issues among the people of Assam and illegal immigrants. Like,
Supreme Court decided to monitor the process of updating the NRC (the first NRC having been
prepared in Assam in 1952 based on the 1951 electoral rolls) which was not a sudden
development. It was the culmination of several judgements of the apex court relating to the
problem of illegal immigration into Assam. Supreme Court given in July 2005 when it struck
down the contentious illegal migrants (Determination by Tribunals) Act, 1983. This Act had
made the detection of illegal migrants next to impossible by putting the onus of proving
someone as an illegal immigrant on any Indian citizen residing within three kilometres of the
residence of the person against whom the allegation has been made. While striking down the
IMDT Act as ulta vires of the Constitution of India, the Supreme Court stated that it had

13https://economictimes.indiatimes.com/news/politics -and-nation/national-register-of-citizens-in-assam-
14https://m.dailyhunt.in/news/bangladesh/english/the+wire+english-epaper-
wireng/why+many+in+assam+see+the+national+register+of+citizens+

205
'created the biggest hurdle and (was) the main impediment or barrier for the
identification and deportation of illegal migrants'. A three-judge bench comprising Chief
Justice R.C. Lahoti, Justice G.P. Mathur and Justice P.K. Balasubramanyan, which
struck down the IMDT Act as unconstitutional, observed: 'The presence of such a large number
of illegal migrants from Bangladesh, which runs into millions, is in fact an aggression on the
State of Assam and has also contributed significantly in causing serious internal disturbances
in the shape of insurgency of alarming proportions.'

The Bench pointed out that the IMDT Act and Rules had been so made that innumerable and
insurmountable difficulties were created in identification and deportation of illegal migrants
and that though enquiries were initiated in 3, 10,759 cases under the IMDT Act, only 10,015
persons were declared illegal migrants and only 1,481 illegal migrants were physically expelled
up to April 30, 2000.

Significantly, the Bench noted that 'the IMDT Act and the Rules clearly negate the
constitutional mandate contained in Article 355 of the constitution, where a duty has been cast
upon the Union of India to protect every State against external aggression and interna l
disturbance. The IMDT Act, which contravenes Article 355 of the constitution is,
therefore, wholly unconstitutional and must be struck down'. 15

CURRENT SCENARIO OF NRC UPDATING

The first draft, was released on January 1, 2018 with 1.9 crore names. The second and final
draft of Assam's National Register of Citizens (NRC) published on July 30 includes about 2.9
crore names as opposed to 1.9 crore of the first draft. The process of publishing the final draft
was carried out in cooperation with the Registrar General of India, along with the central and
the state government officials, under the direct supervision of the Supreme Court. Assam is the
first Indian state where the NRC is being updated after 1951, with March 24, 1971 as the cut-
off date, to include names of "genuine Indian citizens". Both the central and the state
governments have extended their support from the very beginning of the NRC publicatio n
exercise.16

15 https://m.dailyhunt.in/news/bangladesh/english/the+wire+english-epaper-

wireng/why+many+in+assam+see+the+national+register+of+citizens+
16 https://www.indiatoday.in/education-today/gk-current-affairs/story/assam-nrc-national-register-of-citizens-

second-final-draft

206
Several other modes have been provided since 2018 to approach the NRC site and to find the
registered names uploaded over there. Toll free number has been provided to applicants from
Assam and outside Assam by referring to their 21 digit Application Receipt Number (ARN).
There are some options which the government may consider, though these are fraught with
problems and likely to prove quite difficult, if not impossible, to implement. The first
option is to deport the illegal migrants to Bangladesh. This course of action is, however, a
non-starter given that Bangladesh till date has refused to even acknowledge that its citize ns
have migrated illegally into India, let alone expressing any indication that it would consider
taking them back. The second option is to allow the illegal migrants to reside in the countr y
on humanitarian grounds, but after stripping them of all citizenship rights. The governme nt
can grant them a modified version of work permit and let them stay on as guest workers,
albeit in different states. For this, the Union government will have to enter into negotiatio ns
with state governments that are willing to accept these illegal migrants. On their part, state
governments have to maintain a proper database and a strict vigil on these illegal migr a nts
lest they disappear without a trace. The third option is to grant the proclaimed ille ga l
migrants amnesty and, after a process of naturalisation, Indian citizenship. Such an option
would not, however, be welcomed by the people of Assam who are at present protestin g
against the Citizenship Amendment Bill of 2016, which proposes to grant citizenship to all
refugees (except Muslims) who have fled religious persecution in their home countries.

CONCLUSION

This crisis was going since 1951 in the State of Assam, to maintain and update the NRC became
the most prime issue to resolve. It was done in respect of each village showing the houses or
holdings in a serial order and indicating against each house or holding the number and names
of persons. This was done by copying out in registers the particulars recorded during the Census
done in 1951 and was prepared under a directive from the Ministry of Home affairs (MHA).
Meanwhile, being focused on the issues and obstacle created by the illegal immigrants came
from Bangladesh the Govt. Of Assam took initiative to maintain the National Register of
Citizens. The prime explanation behind the usage of NRC was to identify and kill unlawful
outsiders. In the eyes of the law, they are still protected with their fundamental rights as they
are divided in two, those which are exclusively for the citizens of India and those which are for
all the people in India.

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As indicated by Article 14 of the Indian Constitution, it expresses that "The State will not deny
to any individual balance under the watchful eye of the law and equivalent assurance of laws
inside the domain of India". Despite these reactions, the updating of the NRC is a positive
advance in various ways. Right off the bat, when the draft is finished, it will give a genuine ly
necessary point of view on the degree of unlawful movement that has occurred into Assam
specifically and the nation as a rule. Since the times of the Assam disturbance against illic it
Bangladeshi migrants, there have been wild hypotheses about their real number. The
vulnerability about the quantity of unlawful vagrants was intensified by the nonattendance of
authority gauges. This enabled ideological groups to frequently overstate the numbers,
spellbind voters and adventure the issue for constituent increases. A refreshed NRC is probably
going to put a conclusion to such hypotheses and give a checked dataset to do important
discussions and actualize aligned arrangement measures. Secondly, the issue of unlawful
vagrants has remained an emotive one in Assam since freedom. It had even made a disparity
of assessment between progressive focal and state administrations as the previous kept on being
accommodative towards transients depicting the mass movement from East Pakistan as
"homecoming".

Thirdly, the production of a refreshed NRC is required to stop future vagrants from Banglades h
from entering Assam unlawfully. The distribution of the draft NRC has just made discernme nt
that remaining in Assam without legitimate documentation will draw in confinement/impr iso n
term and extradition. All the more vitally, illicit vagrants may think that it’s significa ntly
progressively hard to get Indian character reports and profit every one of the rights and
advantages because of every single Indian national. To wrap things up, the consideration of
their names in the NRC will give break to each one of those Bengali talking individuals in
Assam who have been, up to this point, suspected as being Bangladeshis.

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UNAVAILING ACCORD: A SIFT INTO THE ASSAMESE IMMIGRATION

- Vasudha Chadha and Mridul Dhingra

ABSTRACT

The exclusion of 40 lakh people from the final draft list of the recent National Register of
Citizens exercise in Assam has implanted numerous doubts in the minds of the citizens. Being
a programme initiated years back during the Congress regime, it has not gained any firm
authentication as well as the quality of the programme is also dicey. Where on one hand,
deportation to Bangladesh is considered as an option, on the other hand, there is a possibility
of genuine Indian citizens being targeted wrongly. The question that arises here is of the status
of those deemed to be foreigners. These foreigners who have spent generations in a country
which they called their own would have to face a sudden alienation, no affirmation of their
security and no one to guarantee of what is to become of their future. The next area of concern
is the selection of those people who were termed as foreigners by the statutory Foreigners’
Tribunals in Assam. These people have been kept as detainees in detention camps which are
literally carved out of jails and have been there for as long as a decade. The treatment they are
given there is yet unknown to the masses and is reportedly really appalling with almost no
prospect of release.

This research paper shall highlight the current status and representation of those who have been
detained and are enlisted as the illegal immigrants. Based on the timeline of the enforceme nt
of this programme, various decisions regarding the same shall be discussed in this paper. The
paper shall also discuss the origin of this programme for a better understanding of its current
situation. The validity of the decisions made in regard of this programme shall be put forward
and analyzed for the consequences they can have in the future. It shall be seen further in the
paper if the government has been successful in maintaining proper transparency and in
providing much needed legal advice and support to the detainers who not only are economica lly
backward or have lack of social and political capital; but also are not educated and aware of
their legal representation and aids which can be provided to them.

In the end, we shall be able to recognize the terms and challenges faced by the enforcement of
this programme. The conformity of this programme shall be put forward to the scrutiny of
whether being a formulation done under the scope of humane democracy or not. Through this,

 The Authors are Students of Vivekananda Institute of Professional Studies, IP University.

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one can easily make out if there are establishments of transparency in the procedures and the
right to life and liberty for the detainees. Further, we shall also look into this matter under the
scope of international law for immigrants and whether its guidelines have been followed under
this programme or not.

INTRODUCTION

Back in 1985, the Rajiv Gandhi government made it possible for the leaders of the Assam
Movement to join hands with the Union government and sign an accord enforcing full
citizenship and the right to vote for the foreigners who had entered Assam between 1951 and
1961. While those who entered after 1971 were to be deported back to Bangladesh, the ones
entering between 1961 to 1971 were given no voting rights for a span of ten years but were
granted all the other citizenship rights. Finally, after decades of turmoil, the National Register
of Citizens got the mandate of the law as the final draft was readied on 31 st July, 2018. This
draft has created more confusion than ease. There are many discrepancies and faults related to
the inaccuracies in the records required to establish the identity of the citizens. Where one can
find spelling errors in the names enlisted, there are many cases where the children’s names are
on the list but not of their parents’ or vice versa. It is estimated that there are around forty lakh
illegal immigrants in Assam from Bangladesh but this data is also doubtful, reason being, an
improvement in the domestic economy of Bangladesh resulting into a changing pattern of out
migration from Bangladesh. Consequences of this NRC draft involve the deportation of those
who are not listed on this draft but as of now, there is no deportation agreement between India
and Bangladesh regarding this matter. On the other hand, detention camps were proposed for
these illegal foreigners but the issue of this proposal is in itself a big failure in regards to the
assertion of arbitrariness and could lead to national as well as international opprobrium.

In this paper, we shall be able to recognize the series of policies which lead to the issue of this
NRC and also the current situation of the illegal immigrants and the consequences they are
facing post the issue of this draft.

Section 1 deals with a brief history of the Assam Accord signed back in 1985, Section 2
emphasizes the consequences of the illegal migration in Assam, Section 3 focuses on the
consequences of the NRC report of 2018 and in Section 4, we conclude our analysis and put
forward a futuristic perspective of this enforcement.

1. THE ASSAM ACCORD

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The Assam agitation dates back to the times of post independence era when the first Chief
Minister of Assam, Gopinath Bordoloi suggested the then Prime Minister of India, Jawaharlal
Nehru to replace the refugees entering Assam to other states of the country as they had already
rehabilitated 2.5 lakhs refugees and further immigration would have lead to a tremendous land
scarcity for the people who had already been presiding there, practicing cultivation. But thus
plea was subdued by the prime minister who declared that all the refugees had to be provided
with land in order to procure financial help from the Union government. Thus, there was a lack
of importance given to the proposal of the state government for issuing a permit to have a check
on the migrants.
Later in 1964, the Prevention of Infiltration from Pakistan Scheme (PIP) was enforced in order
to check and deport the illegal immigrants from East Pakistan. This scheme lasted till 1969,
when the Congress ended it in order to secure the vote bank for general elections. The
consequence of this abrupt ending to the scheme lead to the non-existence of the estimate of
the refugees and thus no plan could be launched for relocating them in other parts of the
country.
It was not only the Union government that led to the chaos in Assam but also the state
government which complied to sign the Assam Accord in 1985 and which led to a six year long
suffrage for the Assamese. This Assam Accord was drafted on 14 th August, 1985 and the then
Prime Minister, Rajiv Gandhi, announced it on the Independence Day the same year. There
was a lack of a keen eye from the side of the delegates of the state government to observe the
barriers that could come in the way of the proper implementation of this agreement between
the state and the union government.
As was afraid, this agreement couldn’t work out as it was supposed to. One of the reasons can
be the non- existence of any certain timeframe for its implementation and this can be evidenced
through the implementation of the non mandatory clauses like that of setting up IIT and
refinery, rather focusing on clauses which held much more importance. One of such debated
clauses was Clause 6, where ‘Assamese people’ should have been replaced with either ‘people
of Assam’ or ‘Indian citizens of Assam’, as it provided for the constitutional safeguards.
Moreover, it led to a massive influx of population of the migrants. I response to this, Assam
governor, Lt. Gen (Retd) SK Sinha submitted a report which was titled as Report on Illega l
Migration into Assam to the President on 8 th November, 1998. This report was leaked by the
BJP government into the media which ended up in getting BJP to the power. But hardly any
difference was seen in the working out of this issue by the BJP government after coming into
power as it was done by the Congress earlier.
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The Illegal Migrants (Determination by Tribunals) Act which was enforced in 1985 to detect
the foreign nationals was applicable only in Assam while the whole country had a different law
altogether. In the governor’s report, it was stated that this law should be repealed and a new
legislation should replace it as it concealed the illegal migrants because of the onus of providing
the evidence for the same lying with the government. But the BJP government did not pay any
heed to the process of providing preventive infiltration measures.

2. CONSEQUENCES OF ILLEGAL MIGRATION


Bangladesh faced a high density of population, around 964 per sq. km., according to the 2011
estimates and this was one of the major causes of the immigration to India for grabbing better
economic opportunities.
But this migration proved to be a lot more devastating for the demographic structure of Assam.
The districts which are the most inflicted with the ill consequences of this illegal migration are
Dhubri, Goalpara, Barpeta, Morigaon, Nagaon, Dhemaji, Cachar, Karimganj and Hailakand i.
According to the data, Assam has faced the worst case scenario when it comes to decadal
growth rate of population in any state in India after independence. This has posed a serious
threat to the livelihoods of the indigenous people more then those who have migrated here.
Other aspects such as housing facilities, sanitation and health have been kept at stake too due
to this illegal migration.
There has been a major crisis of identity due to this influx of the immigrants. Right from the
employment opportunities to the political control, everything has been undermined for the
indigenous Assamese.
There was a sudden decline in the forest cover under Assam from 39% in 1951-1952 to only
30% now. This land area was impinged by the illegal migrants for the purposes of cultiva tio n
as well as housing.
There was a major issue regarding the detection of the illegal migrants due to the same langua ge
spoken by the immigrants from Bangladesh and the Bengali speaking Muslims of Assam. Thus
it became a barrier for the deportation of the correct illegal migrants and not the indige no us
people of Assam.
Poverty and poor housing facilities had inflicted on much higher terms in Assam due to the
illegal migration and thus social exclusion based on the same issues started taking place.
There has been an acute financial burden on the state government of Assam for keeping up
with the expenditure done on health facilities as well as on the education sector for these illega l
migrants.

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A lot of competition and conflict has taken place regarding the job opportunities that have been
displaced from the native people to the immigrants, usually at the times of recession.
Due to the population explosion caused by the immigration, there has been a drastic fall in the
wage level.
All Assam Gana Sangram Parishad (AAGSP) and All Assam Student’s Union (AASU) led the
agitation movement in Assam against the government which proved to be ignorant to respond
to the issue of illegal migration. Due to this, there arose a government instability in Assam and
also there were a lot of cases of ethnic vehemence and civil disobedience campaigns. The
consequence of this agitation came out to be the Assam Accord.
There are many illegal voters in Assam who’ve got their names on the voting list so as to show
that they are the legal citizens of the state. These illegal voters prove to be a potential vote bank
for the leaders of the political parties in Assam. To correspond to this, the initiative of the
National Register of Citizens has been generated recently, so as to detect who all are the illega l
immigrants and thus are the illegal voters in Assam. Nevertheless, the success rate of this
initiative shall lie on the will of the political parties.
Assam has also become a terrorist prone area due to this illegal migration. This is due to the
entrance of the militants related to Pakistan’s ISI and are carrying out terrorist activities in
Assam.

3. NRC REPORT AND ITS CONSEQUENCES


The first draft of the NRC was done in 1951, the first census of india. But since then, there
have been numerous immigrants coming to Assam and to keep a check on them, this register
is being updated to keep the names of only those who were included in the NRC till 24th March,
1971 or those who could prove their presence in Assam of any pat of India on or before 24th
March, 1971.
Under the monitoring of the Supreme Court of India, this updating of the records started taking
place in 2013. A part NRC Draft was released on 31st December, 2017 and afterwards, the
complete draft NRC was released on 30 th July, 2018.

The process of NRC Update is divided into the following phases:

- Publication of Legacy Data

- Distribution & Receipt of Application Form

- Verification Process

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- Publication of Part Draft NRC

- Publication of Complete Draft NRC

- Receipt and disposal of Claims and Objection

- Publication of Final NRC

According to the official estimates, 1.25 lakh voters have been alleged as ‘doubtful voters’.
Thousands are being scanned under the Foreigners Tribunals and the Assam Border Police.
These people can appeal to the one-judge divisional bench of Guwahati High Court and if
their appeals stand rejected, they have to be declared as D voters and a ‘D’ shall be marked
against their names in the electoral list. Such D voters are then termed as foreigners and are
sent off to jails which are often termed as detention centers. In these detention centers, these
‘foreigners’ have no prison rights even though these doubtful voters are justifiably under the
inspection due to suspected official faults in their documentations.

Detention Centers

As per the government’s orders and the recent NRC report, those all who have been termed
as the doubtful voters are to be detained in the detention camps till they’ve been granted
clearance by the courts, as these people tend to disappear. Stricter investigations have been
called for by the state government to be performed by the border police so that only genuine
cases are presented in the tribunals.

As said by Darapuri, “deportation of such a large number of people appears to be practica lly
impossible and if it happens, it will create a crisis rather anarchy”. This statement is
evidenced through the fact that in the report nowhere it has been mentioned that the doubtful
voters would be given a month’s time to appeal, as stated in the NRC procedure. Rather, the
report states that such people shall be “rendered stateless” after 30 th July 2018. In order to
streamline the process of deportation, it was advised by the Supreme Court to the Indian
government to engage with Bangladesh but till yet, nothing has been done.

The Complete Draft NRC included a total number of 2,89,83,677 people, leaving 40,70,707
people out of the inclusion or ineligible.

Claim can be made by those whose names were not included in the final draft of the NRC and
this has to be done within a prescribed time period at the NSK where the Application Form

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was submitted. On the other hand, if someone has an issue with the inclusion of certain names
that have been included in the NRC, can file before the LRCR regarding the same. A person
may also file an application regarding the correction made in their name or any other person’s
name before the LRCR.

This draft has led to a lot of havoc in the whole country and minimizing its effects through
detention camps stands nowhere near the solution. This deep rooted problem can be resolved
through other measures as well which are less confusing and can be implemented right away.
One of these measures can be the strengthening of the border fencing and the water wing of
the BSF there should also be strengthened. Multipurpose photo identity cards should be
provided to the nationals who are residing at the border districts of India so as to curb the issue
of illegal migration and verification could be done on quite easier terms that way. O nly a proper
implementation of the latest NRC draft can lead to clearing up of the much created confusio n
regarding the issue of who has to be detained and who has to be let free; and if deportation has
to take place, then it should be done with proper arrangements and without any delays. This
would ensure the security to the indigenous people and they shall also enjoy the resources that
they own in full terms.

4. CONCLUSION

It is obvious that there cannot be a miraculous solution to a historical problem overnight. But
there has to be given stress on the devastating consequences of the large scale immigra tio n
from Bangladesh into Assam, which is not only a threat to the state of Assam but also to the
whole country. There has paved in a notion of secularism regarding the entrance of these illega l
migrants. But one has to understand the crux of the situation and also the true meaning of
secularism should not be misconceived. This is because this problem is now not only a regional
problem nut it has come into the limelight of the whole country as these migrants have now
spread to almost all parts of the country such as Rajasthan, Madhya Pradesh, Maharashtra,
Delhi and so on. This invasion of Assam can even cost it its lower districts which are vital geo
strategically. This is because in these districts, there is a majority if the Muslims because of the
influx from Bangladesh. If nothing is done and this migration trend continues to take place
there, then that time is not far away when these districts get a merger with Banglades h.
Therefore, it is really important to handle this issue with great emergency so as to save the
Assamese people from losing their land and undue injustices that are inflicted upon them due

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to the faults in the government’s draft and policies. Also, care has to be taken while initia ting
the process of deporting because there are numerous people who have spent generations here
being unaware of their rights and their actual citizenship. It should be seen that whatever
policies are enforced from now on lead to a rigid destination and not dissolve under the
influence of any political agendas.

REFERENCES

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2. Baruah S (1999) India against itself: Assam and the politics of nationality. Oxford
University Press, New Delhi, India.
3. (2011) Assam population census data 2011.
4. Goswami U (2007) Internal displacement, migration, and policy in northeastern India.
5. www.firstpost.com
6. The New Indian Express
7. www.thewire.in
8. www.scroll.in
9. www.indianexpress.com
10. Das, Susanta K. Spotlight on Assam. Maharashtra: Premier Book Service, 1989

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