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Vatsal Raj

August 10th, 2020

The National Register of Citizens and India’s commitment deficit to international law

0 comments | 4 shares

Estimated reading time: 10 minutes

Vatsal Raj

August 10th, 2020

The National Register of Citizens and India’s commitment deficit to international law

0 comments | 4 shares

Estimated reading time: 10 minutes

The National Register of Citizens (NRC) is an exercise by the Indian government to recognise and expel illegal immigrants pursuant to Section 14A of the Citizenship Act, 1955 read with the Foreigners Act, 1946. The government implemented the NRC in the north-eastern state of Assam, bordering Bangladesh. The recently-published UN World Migration Report 2020 has identified this border as one of the most vulnerable migrant corridors in Asia, given the historical fluidity of its boundaries. In Assam, international borders are young and divide ethnically similar societies owing to the long history of territory exchange agreements between India and Bangladesh and the legal migration of refugees in the aftermath of the Indo-Pakistani War of 1971. Therefore, the porosity of established migrant categories must be acknowledged and preserved by the State. Instead, in 2018, the government screened 32.9 million people and 65 million documents, costing the taxpayer $178 million and labeled 40,70,707 people as illegal residents. In 2019, the government revised and released the final list of the NRC, excluding nearly 2 million people – approximately 6% of Assam’s population – effectively rendering them stateless.

According to Section 2 of the Foreigners Act: “A foreigner means a person who is not a citizen of India”. And according to Section 9, the burden of proof lies with the person suspected to be a foreigner, to provide documentary evidence proving their citizenship. Those excluded must appeal to the Foreigners Tribunals, implying that the State already treats them as non-citizens. “Foreigners” are required to prove their citizenship by providing legacy documents proving permanent Indian residency, failing which they will be stateless.

In the absence of domestic legislation on the legal status of refugees, India’s internal refugee management system is fraught with serious issues — principally because essential conventions such as the Convention Relating to the Status of Stateless Persons, 1954 and the Convention on the  Reduction of Statelessness, 1961 have not been used as reference points for the methodical detection, reduction and prevention of statelessness — as made evident by the inhuman fallout of the NRC. Therefore, India suffers from a pernicious commitment deficit to international law.

NRC: Institutionalising Exclusion

The very idea of the NRC, with its fundamental premise rooted in the insider-outsider binary has led to the institutionalization of exclusion. The NRC in all its arbitrariness and unfairness has imposed a palpable anxiousness on the entire region. Contrary to the principles of natural justice, the categorization of citizenship status considers every resident of Assam guilty until proven innocent. To prove their citizenship, some had to sell personal property such as livestock to cover great distances in order to file their papers with the authorities located at far off registration offices. Reports suggest that Foreigners Tribunals in the state of Assam have been denying people their citizenship arbitrarily and suffer from a perilous shortage of qualified judicial officers, some of whom are recruited on a temporary basis and trained for only four days. The apprehension and trauma of exclusion suffered by the entirety of the Assamese population of 32.9 million, amounts to the persecution of genuine Indian citizens.

The Gendered Impact

While the NRC has adversely affected the lives of marginalised populations in Assam, the demographics of exclusion suggest that women and children across the state of Assam, have suffered disproportionately due to India’s commitment deficit to international law. This becomes starkly evident in cases where children have been excluded from the NRC, but their parents admitted. These children live under a blanket of suspicion and stigmatisation.

The NRC affects women disproportionately for two interrelated reasons. First, the evidentiary value of proof of citizenship is tilted highly in favour of patrilineal documents, therefore women who trace their identity matrilineally are invariably excluded. Secondly, in a region like Assam where underage marriage and polygamy are common, the documents often only have the  husbands’ names on them. The identities of most women are entwined with that of their husbands, and they thus end up as appendages to male citizens rather than citizens themselves. The NRC process has also separated thousands of women from their families. These include daughters, sisters and wives who have been arbitrarily left out of the list due to trivial reasons such as typographical errors. Women in the region rarely enjoy financial independence and are dependent on their families for survival; the fragmentation of families has therefore resulted in widely uncertain futures for them.

Article 326 of the Constitution states  that voting rights are available only to citizens. Those excluded from the list shall be categorised as ‘D’ (doubtful) voters, stripping them of their right to vote. Therefore, the NRC is creating a nation of disenfranchised women, lacking the most basic of human rights that emanate from the right to citizenship. Indeed, the recognition of women as legitimate citizens with lawful rights is only the first step on the long road towards gender equality.

All democratic states must grant women equal rights to acquire, change or retain their nationality. The Indian state, in its handling of the NRC process, has been oblivious to certain inalienable rights guaranteed by fundamental international instruments. For example, Articles 1 and 2 of The Convention on Nationality of Married Women along with Article 9 of CEDAW, encourage states to provide equality between men and women in matters of citizenship and the right to pass on nationality to children. These conventions are a cornerstone in preventing statelessness as a direct result of gender-based discrimination in the bestowal of nationality, but were disregarded in the government’s implementation of the NRC.

The Perpetuation of Statelessness

The UNHCR guidelines state that children are often stateless if their parents are stateless; such perpetuation can be curbed if a country in which a child is born grants its citizenship to this child, even if their parent(s) may be stateless. Contrary to incorporating the spirit of jus soli, Section 3(1)(c) of the 1955 Citizenship Act denies or confers citizenship to the child based on the citizenship of the parent; children born in India thus cannot secure Indian citizenship if at least one of their parents is not an Indian citizen. Given the exclusionary pattern of the NRC, this prerequisite has the potential to create statelessness in Assam by the mere operation of law.

Children are the most vulnerable to this exclusion, since the denial of nationality from birth subjects them to a cycle of extreme poverty without basic human rights or opportunities. The UDHR sets a common standard of achievement for all people of all nations, wherein Article 15 creates a negative duty on the state not to create statelessness. Article 24 of the ICCPR states categorically that every child has the right to acquire a nationality. This is supplemented by Article 8 of the CRC, that obliges the state parties to accord the right to every child to acquire nationality in his or her country of birth. Moreover, the determination of citizenship through lineage is inherently exclusionary in a country where, according to UNICEF, about 40% of urban births and 65% of rural births are unregistered, despite an obligation under Article 7 of the CRC to register all births.

Beyond subjecting children to a cycle of statelessness, the NRC has also deprived them of essential parental care. Children have been forcefully separated from their parents who are held in detention centres, in violation of Article 9 of the CRC. There is no statutory limitation on the period of detention under Section 3 of the Foreigners Act and most of these centres are in derelict conditions and provide no opportunity for the child to establish any personal contact with their parent(s), as mandated under Article 9. Although the law provides for non-custodial alternatives, the Government of Assam in a white paper expressed its predilection toward the use of detention as the preferred means. This has resulted in the dehumanisation of the millions excluded from the NRC.

Conclusion

Hannah Arendt has aptly described the plight  of refugees, being transformed from homeless to stateless and ultimately, right-less. This rings particularly true in the context of the NRC, through which all Assam residents have been deemed illegal citizens and burdened with the obligation to prove their nationality beyond reasonable doubt. Persecution of genuine Indian citizens, who suffer the trauma of exclusion, is a direct breach of the rule of law. If states remain unwilling to honour their international commitments, the judiciary must display exemplary constitutional courage in reviving India’s civilizational heritage of inclusiveness and uphold the country’s obligation to foster respect for international law under Article 51(c) of its Constitution (36), thereby remedying its catastrophic ‘commitment deficit’ to the established and unalienable principles of international law.

 

References

The Citizenship Act, 1955. Available at: https://indiacode.nic.in/bitstream/123456789/1522/1/a1955-57.pdf

The Foreigners Act, 1946. Available at: https://indiacode.nic.in/bitstream/123456789/2259/3/A1946-31.pdf>

U.N. World Migration Report, 2020. Available at: https://www.un.org/sites/un2.un.org/files/wmr_2020.pdf

Ministry of External Affairs, India and Bangladesh Land Boundary Agreement. Available at: https://mea.gov.in/Uploads/PublicationDocs/24529_LBA_MEA_Booklet_final.pdf

UNHCR, The State of World’s Refugees, 2000. Available at: https://www.unhcr.org/pubs/sowr2000/ch03.pdf

Is India Creating its Own Rohingya, New York Times. Available at: https://www.nytimes.com/2018/08/10/opinion/india-citizenship-assam-modi-rohingyas.html

4 Million Indian Citizens Could Be Made Stateless Tomorrow. Here’s What to Know, TIME. Available at: https://time.com/5665262/india-national-register-of-citizens-stateless-assam/

In a corner of India, 2 million risk becoming stateless after release of final citizenship list, The Washington Post. Available at: https://www.washingtonpost.com/world/two-million-risk-becoming-stateless-after-indian-state-releases-final-list-of-citizens/2019/08/31/539d8d34-cb28-11e9-9615-8f1a32962e04_story.html

Assam NRC: What next for 1.9 million ‘stateless’ Indians?, BBC News. Available at: https://www.bbc.com/news/world-asia-india-49520593

Determination of Citizenship through Lineage in the Assam NRC Is Inherently Exclusionary, Economic and Political Weekly Engage. Available at: https://www.epw.in/engage/article/determination-citizenship-through-lineage-assam-nrc-exclusionary

The Convention relating to the Status of Stateless Persons, 1954. Available at: https://www.unhcr.org/ibelong/wp-content/uploads/1954-Convention-relating-to-the-Status-of-Stateless-Persons_ENG.pdf

Convention on the Reduction of Statelessness, 1961. Available at: https://www.unhcr.org/ibelong/wp-content/uploads/1961-Convention-on-the-reduction-of-Statelessness_ENG.pdf

The Citizenship Question Should Also Interrogate the Insider-Outsider Binary, Economic and Political Weekly Engage. Available at: https://www.epw.in/engage/article/citizenship-question-should-also-interrogate

How the National Citizenship Registration in Assam is shaping a new national identity in India, The Conversation. Available at :https://theconversation.com/how-the-national-citizenship-registration-in-assam-is-shaping-a-new-national-identity-in-india-121152

Assam and NRC — the struggle to belong where you belong, The Hindu. Available at: https://www.thehindu.com/thread/politics-and-policy/assam-and-nrc-the-struggle-to-belong-where-you-belong/article29702277.ece

 Assam Citizenship Issue: Supreme Court acted inconsistent with International Law, Counterview.org. Available at: https://counterview.org/2019/12/02/assam-citizenship-issue-supreme-court-acted-inconsistent-with-international-law/

Designed to Exclude: How India’s Courts are allowing Foreigners Tribunals to Render people Stateless in Assam, Amnesty International. Available at: https://amnesty.org.in/wp-content/uploads/2019/11/Assam-Foreigners-Tribunals-Report-1.pdf

Children out, parents in: The real challenge begins now that final Assam NRC is here, The Print. Available at: https://theprint.in/opinion/children-out-parents-in-the-real-challenge-begins-now-that-final-assam-nrc-is-here/284862/

Women ‘Worst Victims’ of NRC: Gender and Discriminatory Nature of the Register Revealed, The Citizen. Available at: https://www.thecitizen.in/index.php/en/NewsDetail/index/7/17924/Women-Worst-Victims-of-NRC-Gendered-and-Discriminatory-Nature-of-the-Register-Revealed

NRC process is especially discriminatory towards women, National Herald. Available at: https://www.nationalheraldindia.com/india/nrc-process-is-especially-discriminatory-towards-women

Uncounted in Assam NRC final draft: School teacher, one of twins, MLA, B.Ed. student, social worker in Delhi, The Indian Express. Available at:https://indianexpress.com/article/north-east-india/assam/assam-citizenship-nrc-final-draft-names-missing-rajnath-singh-sarbananda-sonowal-5285568/

Ghosh, S. (2019). “Everything Must Match” : Detection, Deception and Migrant Illegality in the India-Bangladesh Borderlands. In: American Anthropologist Volume 121, Issue 4. Available at: https://anthrosource.onlinelibrary.wiley.com/doi/10.1111/aman.13313

Article 326, The Constitution of India. Available at: https://www.constitutionofindia.net/constitution_of_india/elections/articles/Article%20326

Who is a “D” voter?, The Office of the State Coordinator of National Registration (NRC) Assam. Available at: http://www.nrcassam.nic.in/faq09.html

The Convention on Nationality of Married Women. Available at:https://treaties.un.org/Pages/ViewDetailsIII.aspx?src=TREATY&mtdsg_no=XVI-2&chapter=16&Temp=mtdsg3&clang=_en

Convention on Elimination of All forms of Discrimination Against Women. Available at: https://www.ohchr.org/en/professionalinterest/pages/cedaw.aspx

Guidelines on Statelessness No.4, United Nations Commissioner for Refugees (UNHCR). Available at: https://www.refworld.org/docid/50d460c72.html

Universal Declaration of Human Rights (UDHR). Available at: https://www.un.org/en/universal-declaration-human-rights/

International Covenant on Civil and Political Rights. Available at: https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx

Convention on Rights of the Child. Available at: https://www.ohchr.org/en/professionalinterest/pages/crc.aspx

Every Child’s Birth Right : Inequities and trends in Birth Registration, UNICEF. Available at: https://data.unicef.org/wpcontent/uploads/2015/12/Birth_Registration_lores_final_24.pdf

Don’t treat children as NRC ‘collateral damage’: Assam NGO, The Hindu. Available at: https://www.thehindu.com/news/national/other-states/dont-treat-children-as-nrc-collateral-damage-assam-ngo/article29286915.ece

Inside Assam’s Detention Camps: How the Current Citizenship Crisis Disenfranchises Indians, Economic and Political Weekly Engage. Available at: https://www.epw.in/engage/article/inside-assams-detention-camps-how-current

Government of Assam, White Paper on Foreigners Issue, 2015. Available at: http://onlineedistrict.amtron.in/web/home-and-political-department/white-paper

Ardent, H. (2004). The Origins of Totalitarianism. Available at: https://www.azioniparallele.it/images/materiali/Totalitarianism.pdf

Article 51 (c), The Constitution of India. Available at: https://www.constitutionofindia.net/constitution_of_india/directive_principles_of_state_policy/articles/Article%2051

About the author

Vatsal Raj

Vatsal Raj is a student of law at National Law University, Lucknow, India. Presently, he is working as the External Relations Associate at the Office of the United Nations High Commissioner for Refugees in India at New Delhi. Vatsal has a keen research interest in international human rights law with a focus on developing inclusive refugee protection mechanisms.

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