AN INSIGHT INTO THE NRC EXERCISE
The rhetoric around the question of nationality emerged with the announcement of the National Register of Citizens (NRC) under the supervision of the Supreme Court. The NRC is a state-specific exercise which is intended to identify the foreign nationals under the supervision of the Apex Court, to keep the state’s ethnic demography unchanged. The NRC is a crucial exercise for the State of Assam as it provides for a clear demarcation of who should be considered as an Indian citizen from other nationals who have illegally entered India.
According to the provisions of the Citizenship Act 1955, Indian Citizenship can be granted on grounds of birth, descent, registration, naturalization incorporation of territory, or deprivation. With the signing of the Assam Accord between AASU and Central government, a sixth type of acquiring citizenship for migrants from Bangladesh to the state of Assam, emerged leading to the addition of Section 6A into the Citizenship Act in 1985.
The Supreme Court’s role in the public discourse on NRC in Assam is crucial. In the case of Sarbananda Sonowal v. Union of India the Apex Court on July 12, 2005, in a three-judge bench declared the Illegal Migrants (Determination by Tribunal) Act 1983 and its rules, which dealt with the expelling of the illegal immigrants in Assam as unconstitutional. The Illegal Migrants (Determination by Tribunal) (IMDT) Act 1983 was an Act of the Parliament enacted by the Indira Gandhi government. The Government of India passed an ordinance to come up with tribunals for the question of determination of whether a person is or is not an illegal migrant and on 12 December 1983, the Act was introduced in the Parliament. IMDT Act describes a detailed procedure to detect the illegal immigrants residing in Assam and to deport them from Assam. The IMDT Act was enacted solely for determination of the status of migrants for the state of Assam, and, in other states, the detection of foreign nationals was to be done as per the provisions in the Foreigners Act, 1946. The IMDT Act prescribes various provisions for proving the citizenship of a particular person otherwise rested on the accuser and the police and not the accused person. The responsibility of the police or the accuser is to prove the citizenship of the accused and the accuser must reside within a radius of 3 kilometers the accused person. And suspected illegal migrant was required to simply produce any proof of his Indian citizenship or a ration card proofing his Indian citizenship. The Act therefore, bestows upon the Central Government the power to not accept the application if the application is found frivolous or vexatious. The Act excludes in itself the entrants who entered India. The Apex Court on hearing a Public Interest Litigation (PIL) petition on 9th August 2012, seeking a way out for the expelling of the illegal migrants stated that “the Indian Government doesn’t support any kind of illegal migration either into its territory or illegal immigration of its citizen". Further, the Apex Court held that the Government of India is committed to the lawful expulsion of illegal immigrants. The Supreme Court benches while striking down the IMDT Act, 1983, attributed large-scale undocumented immigration from Bangladesh as external aggression. Therefore, the responsibility lies on the Union Government to protect and defend the state of Assam from the problem of illegal immigration from Bangladesh that poses a significant demographic challenge.
THE LANDMARK SARBANANDA SONOWAL CASE
The IMDT Act was challenged by Sarbananda Sonowal, a former president of the AASU and currently the Bharatiya Janata Party’s Chief Minister of Assam. Sonowal argued that the Act was being wholly arbitrary and unreasonable also adding to it, he contended that the Act discriminated against Assamese citizen and making it a daunting task to detect and deport the illegal immigrants from the Indian soil. And as the Act was later struck down by the Apex Court in 2005 by invoking Article 355 of the Constitution, in the case of Sarbananda Sonowal vs. Union of India the SC observed that the conviction rate under the Act is less than half percent of the total number of cases initiated. The Act was coming up as an advantage for the illegal migrants because in many of the proceedings initiated against them came out in their favour, which enabled them to prove that they are not illegal immigrants on the basis of documents having official sanctity. These documents are mostly acquired through fraudulent means. Numerous petitions were filed in the Apex Court questioning the constitutional validity of Section 6A of The Citizenship Act, 1955.
A two-judge bench consisting of Justice Ranjan Gogoi and Justice NF Nariman in December 2014 had suggested presenting the matter in front of a five-judge Constitutional bench. Many facts and figures were brought in front of the bench though many were in support some opposed the Section 6A including political parties and organizations. Assam Sanmilita Mahasangha and two other organizations filed a PIL and had stated opposing the Accord that any other cut-off date for detection of the illegal immigrants who enter Assam is discriminatory and unconstitutional besides the general cut-off date for the rest of India. Along with that, they contended that the Assam Accord has failed in fulfilling the promise of detection and deportation of the foreigners from Assam, and now possessing a threat to the indigenous people's economic and constitutional safeguards. Also, the petitioners requested the court to set aside the provision of the Citizenship Act, 1955 stating it is absolutely discriminatory and violates the provision of the Indian Constitution as it violates Article 14 which ensures the ‘Right to Equality’ because as per the provision of Section 6A of the Citizenship Act, especially for Assam, a person entering the Indian territory cannot be treated as Indian citizen under the Indian Constitution but the same person entering Assam on or before March 24, 1971, would be provided with the citizenship. AASU being one of the signatories of the Accord stated that an all-party consensus was obtained before signing the Accord and they backed the provisions of the Accord by stating that the Accord provides provision for the detection and deportation of the illegal immigrants other than providing constitutional, administrative and legislative safeguards for the Assamese people and it completely depends upon the State and Central Government to implement the clauses of the Accord. In the judgment of Assam Sanmilita Mahasangha and Ors v. Union of India and Ors in 2014, the need for effective implementation of the other clauses of the Assam Accord was disposed of. Therefore, arguments for making it the State’s prerogative to establish citizenship based on the cut-off date in the Assam Accord are in the defiance of the common law of the land as read in Article 355, the spirit of which was to maintain both territorial and indigenous integrity.
THE TRAVAIL OF NRC AND CITIZENSHIP AMENDMENT ACT 2019
In the run-up to the 2014 General elections, BJP’s Prime Ministerial candidate Narendra Modi had raised the issue of illegal immigrants and proclaimed that his government would work on this age-old problem if voted to power. In 2015, the government proposed the idea of a Citizenship Amendment Bill and the arguments raised by the government include the fact that the demographic dividend has been changed significantly by the migrants and that this bill would correct the image and also correct the historical wrong. Finally, categorizing this issue within the false binary of nationalism trumping humanity is an insult to not just the martyrs of the Assam Agitation but also to the millions of Assamese citizens who have seen themselves lose the status of simple linguistic majority, have seen the lands of the monasteries established by revered and venerated thinkers like Srimanta Sankardeva encroached aggressively, and rising unemployment rates and slow agrarian growth despite the two valleys having enormous potential.
The organs of the State need to ensure that the rights and sentiments of the indigenous Assamese are protected, while a strategic mechanism of handling, if not deporting the illegal immigrants needs to be actualized within the framework of the Article 355 of the Indian Constitution and keeping the realities of Assam’s massive demographic shift in mind. While some parties were upset with the process of updating the NRC list, regional parties, organizations, and forums have vehemently supported it, the fate of the latest NRC list published on 31st August 2019 remains unclear and the government giving little clarification regarding the same. It would be highly intriguing to see what steps the Government takes in such a glaring condition of the indigenous people of Assam. The hastened passage of the Citizenship (Amendment) Bill, 2016 (now an Act) by the Union Government in the face of strong protests by the residents of several parts of the country and most severely from the north-eastern states has raised many questions from across political spectrums and is hardly seen as a victory for constitutional principles or morality. It leaves "illegal immigrants" in continuing oblivion and further threaten to heighten ethnic tensions in the North-Eastern states which already reel with an 'identity crisis' and especially in the state of Assam where the issue of illegal immigration has been deemed as 'external aggression' by many political commentators alike. However, the intent of this hurried tabling of the bill in the Parliament in early December 2019 can be attributed to the release of the final list of the NRC carried out in the state of Assam that came out in late August 2019.
The underlying contradiction between Section 3 and Section 6A of the Citizenship Act 1955 has been a subject of debate with Assam taking an additional burden from the rest of the states in the country for acquiring citizenship. Certain sections of the society demand special constitutional provisions for the state similar to Article 35A of the Constitution. While Inner Line Permit (ILP) is not a permanent solution to the issue, with the change in the demography of the state after the partition and independence of East Pakistan, the implementation of the CAA, 2019 will unlikely endanger the indigenous population of Assam and threaten the culture, language, and heritage. The final list of the Assam NRC documented a large number of around 19 lakh illegal immigrants and out of which it was mostly the Hindu Bangladeshis in Assam, and after the passing of the Citizenship Amendment Bill 2016 (now an Act), it will provide citizenship status to those who are residing in India for 6 years before 31st December 2014. Hence, both the CAA and NRC are two sides of the same coin to the heightened propaganda and at the end of it, the indigenous communities are the ones who will bear the highest brunt. The onus has now shifted to the Supreme Court to oversee the current challenge of either debunking or accepting the claims of the Act on constitutional and moral grounds.
The Supreme Court took upon itself the extremely delicate task of overseeing the preparation of the National Register of Citizens in Assam which was prepared under special provisions in the Immigrants (Expulsion from Assam) Act, 1950, and the Citizenship Act of 1955 enacted by the Parliament of India. The historical context of the NRC must be dealt with by contextualizing the underlying issue of illegal immigration in Assam and the ensuing Assam Andolan that culminated with the historic Assam Accord of 1985 that provides for effective solutions to deal with the Foreigner’s issue in the state.
An unsuccessful NRC exercise that drained much of the state’s manpower and resources failed to tackle the issue that plagues the state. At this crucial juncture, constitutional morality must prevail to implement the Assam Accord for which little has been done by both state and central governments since 1985. Not to forget, the Accord encompasses the saga and the sacrifices of the people of Assam, the martyrdom of 855 Assamese population to protect the identity and ensure the economic survival of the population with continuous infiltration into the state. The historic document holds out brilliant possibilities to answer the question of the foreigner’s issue as well as for the inclusive and progressive growth of the Assamese society.
Author - Arunav Bhattacharjya, NLU Assam.