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| @ | December 14,2019

While most legal scholars have commented that the Citizenship (Amendment) Act on the violation of Article 14, the author focuses on the denial of due process of law leading  to the declaration of been a” foreigner “ and  implication for them becoming stateless He argues that apart form being a constitutional issues, the solution lies in diplomatic understanding with Bangla Desh and other neighbours, pending which, all “ foreigners” must be given full constitutional protection.

 

[dropcap]A[/dropcap]S our nation steadily treads a path of democratic success and economic strength, we can ill afford another minefield of human suffering in the battle between vested political interests. The illegal immigrant crisis in the northeast requires level-headed politico-legal attention rooted in our constitutional principles and international obligations, not the rhetorics of communal polarisation or creation of captive vote-bank. Also, since it is a cross-national human crisis, it requires skilful diplomacy to avoid human suffering and to ensure stability in the region.

The pertinent questions in the context do not relate to a presumption of either the absence or presence of illegal immigration of millions of people, howsoever much the electoral compulsions may accentuate them. National interest dictates that political actors on all sides eschew creating divides and fears for reaping political dividends. The recognition of the possibility of illegal immigration is the germinal measure on which the solution can be devised. Such a recognition occasions the most relevant questions that ought to be the focal point of any effort at a resolution of the issue – identification of illegal immigrants by India as well as their position in and treatment by the Indian polity.

Identification of illegal immigrants within a country entails the presence of a record of citizens, preferably on a real-time basis. The existing data framework in our country is inadequate to determine citizenship status with certainty. Census data is the most comprehensive demographic profile of the country but it fails to appraise indubitableness of citizenship. Neither the Registration of Births and Deaths Act, 1969 carries any implication of nationality of parents on registration of the birth of a child. National Population Register, a register of usual residents of the country, was the first attempt in 2010 at real-time maintenance of demographic data of the usual residents including the citizenship status. Since the de-duplication and updating of data are in progress, even NPR cannot reliably ascertain citizenship for now.

Thus in order to carry out the stipulations of Assam Accord, 1985 and mitigate the dissension due to illegal immigration, UPA 2 decided to carry out updating of NRC, which exists only for Assam, on a pilot basis in Kamrup and Barpeta districts in 2010. The exercise had to be abandoned due to ensuing disturbances and violence and was re-initiated only on the direction of the Hon’ble the Supreme Court of India in 2013. Though some squarely blame the Supreme Court for the ongoing crisis in Assam, the unrest caused by perceived or real undocumented immigration is a genuine concern that needs redressal. On the other hand, the avoidable unease among the bonafide Bengali speaking citizens needs to be redressed. It shall also help shift the political focus from the vote bank politics to the much needed developmental requirements of the region. The final list excluded1.9 million people from NRC, which though is appreciably below various estimates, presents a possibility of an acute humanitarian crisis.

The problem of the whole process of updating lay at two different levels. Firstly, NRC places the burden of proof of citizenship on the individuals, so there is a presumption of guilt which consequently vitiates the process on the grounds of justice and fairness. It thus imputes illegality, even criminality, on an entire population of over 3 crores. But a three-judge bench of the Supreme Court struck down down the provision of the burden of proof on state as enshrined in the Assam-specific Illegal Immigrants (Determination by Tribunals) Act,1983, as ultra-vires the Constitution and upheld the validity of the provision in Foreigners Act,1946 that placed the burden of proof on individual citizens.

It is farcical that a minor criminal offence requires a burden of proof to be met by the prosecution to a standard of beyond reasonable doubt, whereas the dispossession of citizenship, which may carry far graver consequences of statelessness and associated deprivations, reverses the burden of proof. The relevant question here does not relate to the right of a sovereign state to exclude or expel foreigners at will, but to the preceding question of determination of the very citizenship, that ought to be a circumspect and conscientious exercise requiring the highest standard of proof to be met by a state. Sarbananda Sonowal vs Union of India, 2005 case utilises the logic of the former question in the latter issue, thus carrying the seeds of grave injustices.

As problematic as the judgement maybe and may call for its review, the provisions of the Foreigners Act, 1946 does not provide for imputation of illegality on an entire population of a state, but has to act on particular information and charges in specific cases of dubious nationality. The only reference to a class of foreigners under the Act relates to the making of orders with respect to foreigners and is not meant for determining citizenship in case of dubious nationality. Thus the very nature of NRC, which is a mass-based exercise, makes it incongruous with the provisions of the Foreigners Act. Yet, if the Act is to apply, the citizenship status is to be determined on the basis of particular cases.

Secondly, the current exercise of NRC updation has been arbitrary and muddled. The list of documents as valid proof of citizenship has been arbitrarily reached at and is biassed against the poor and the deprived who may not have any land or LIC policy to their name, may not be in any government employees or are not in the habit of registering the birth of their child and so on. The invalidity of Panchayat certificates impacted over four million people till, in December, the Supreme Court allowed it conditionally, but since the case has been reverted to the Gauhati High Court, the fates of these people still hang in balance. Also, the errors in the supposedly sound family tree verification process have further shaken faith in the exercise. Since the update process shall have grave consequences for the excluded persons, all credible documents carrying prima-facie signs of legality such as certified copies of electoral rolls or refugee registration certificate before March 24, 1971, must be allowed.

As if the complex identification process was not enough, the government introduced an invidious Citizenship (Amendment) Act, 2019 that further vitiated the NRC updation process. The Act, passed by Lok Sabha, seeks to provide citizenship to the minorities – Hindu, Sikh, Buddhist, Jain, Parsi and Christian – from Bangladesh, Pakistan and Afghanistan even if they are undocumented immigrants. Further, the Act reduces the period of ordinary residence in India to six years for these immigrants from ordinarily applicable twelve years. It has evoked vehement protests from a large number of the indigenous organisation due to fears of mass immigration from Bangladesh that has a population of over a crore Hindus. They often cite the case of Tripura where the tribals have purportedly been reduced to minority from 53% at the time of Independence to around 30% currently. The native population also views it as a betrayal of the terms Assam accord.

The Act is prima-facie politically motivated and seeks to polarise as well as enhance the Hindu vote bank. Even if the object of the Act, which is to provide succour to the persecuted minorities in three neighbouring countries, is accepted on its face value, it leaves out certain minority sects among Muslims that may also be persecuted. The classification,

thus, is unreasonable and may fall foul of equal protection clause under Article 14. Also, there is no data available to support the claim of such vicious persecution as to necessitate exemption to any minority from the provisions of Foreigners Act, 1946. The prime reason for migration is economic, not religious persecution. Hence, the provision is based on extraneous considerations and is discriminatory.

Neither is Indian nationhood based on religious considerations which may have provided Constitutional immunity to the aforesaid exemptions.

The Act speciously draws its force from the advocacy for minority rights. It needs to be clarified that the minority rights espoused by modern democratic constitutions do not seek to provide any additional substantive right that is not available to the others but merely enhances the level of protection of certain rights for the minorities. For example, the cultural and educational rights available to the minorities is available to others also, but for minority, it has been placed under Part III of our Constitution to enhance the level of protection available for such rights. But the instant Act carves out certain substantive rights for specific minorities, for which there is no justification either in our Constitution or any of the strands of legal philosophy and hence needs to be shelved.

What after Identification of Illegal Immigrants?

 

Even though the Supreme Court has assured that no immediate negative fallout shall result from the aforesaid process, eventually the state has to confront the problem regarding the fate of persons excluded from NRC. But any extreme consequence in the nature of deprivation of citizenship ought only be meted after a free and fair trial of specific cases in the Tribunals set up under Foreigners (Tribunal) Order, 1964, preferably under a regime that places burden of proof on the state after a review of the aforesaid provision in Foreigners Act,1946 by either the Supreme Court or Parliamentary legislation. Also, the shared burden of proof may be adopted wherein information is gathered from the undocumented immigrants as well as other states for which cooperation from an international organisation like UNHCR may be sought. Also, such identification ought not to be discriminatory as envisaged by the Citizenship (Amendment) Act, 2019.

The expulsion of identified illegal immigrants envisaged in the Assam Accord, implausible and in the odd cases where it is to be carried out it would require ingenious diplomacy and sustained dialogue with Bangladesh which would be much more intractable than the exchange of enclaves and transfer of residents in 2015. It must be carried out in a spirit of giving and take, that may include absolute restrictions on fresh immigration as well aa s settlement in terms of Bangladesh taking back recent immigrants who have not been completely uprooted from their native country and can be rehabilitated. Even though India has not acceded to 1961Convention on the Reduction of Statelessness, coordinated efforts by both the countries should ensure that instances of statelessness do not occur.

But of higher significance is the status of identified illegal immigrants in the country. The ensuing dispossession of citizenship would result in loss of political membership of the country and thus voting rights. But since India has acceded to Universal Declaration of Human Rights 1948, International Covenant on Civil and Political Rights (ICCPR) 1966 as well as International Covenant on Economic, Social and Cultural Rights 1966, it would ensue that they enjoy civil liberties as well as economic and cultural rights like right to livelihood, freedom of conscience and religion, registration at birth, effective remedy of violation of rights etc.

But there would be a perpetual issue of balancing the priority of nationals over local resources and the basic economic rights of the undocumented immigrants. There would also be disgruntlement among the latter over their inferior political status despite their perception of themselves as the permanent residents of the polity who shares in the common aspirations of the community. This may create law and order issues. Hence, the coordinated efforts at resolving statelessness with Bangladesh needs to be supported by a mechanism of gradual integration of undocumented immigrants staying in India into Indian nationality.

 

About the author: Mohammad Wasim is an advocate practising in the Supreme Court of India and High Court of Delhi. He also works in the rural education sector.

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