A TWO-DAY People’s Tribunal on Contested Citizenship in Assam: Constitutional Processes and Human Cost was held on September 7 and 8 at the Indian Society of International Law, New Delhi. The tribunal saw presentations by academics, senior advocates and activists and extensive testimonies of the affected people.
The key issues discussed were land, culture, migration, the evolution of citizenship in India, the National Register of Citizens (NRC) in Assam and constitutional processes, Foreigners Tribunals in Assam, detention centres in the State, and the consequences of extending the NRC to other parts of India.
The tribunal was organised by a cluster of non-governmental organisations (NGOs)—Campaign for Judicial Accountability and Reforms, Aman Biradari, Common Cause, Mazdoor Kisan Shakti Sangathan, National Dalit Movement of Justice, Citizens for Justice and Peace, Satark Nagrik Sangathan, Delhi Solidarity Group, National Alliance of People’s Movements, Swaraj Abhiyaan, Citizens Against Hate, and Human Rights Law Network.
The members of the jury consisted of former Supreme Court judges Justice Madan B. Lokur and Justice Kurian Joseph; former Chief Justice of the Delhi High Court, Justice A.P. Shah; Ambassador Deb Mukharji; the author Gita Hariharan; the social and women’s rights activist Syeda Hameed; and academics Prof. Munirul Hussain and Faizan Mustafa. The jury was unanimous that the NRC had spawned a humanitarian crisis. Large numbers of minorities in Assam, whether religious, linguistic or ethnic, have lived with the fear of being told that they do not belong in this country, they noted. Other concerns, they observed, were exclusion from franchise and the fear of being referred by a local border police constable to a detention centre as foreigners.
After listening to the testimonies on the burdens placed on millions of impoverished and unlettered people, the jury found that there were terrible consequences of the following aspects of the NRC process:
Earlier, the state was called upon to submit proof to show that individuals were not citizens. The burden of proof has now been shifted to the residents to prove that they are citizens. With this, every resident, unless he or she submitted proof to establish citizenship, became a suspect in the eyes of the law. Documents relating to birth, schooling and landownership, which impoverished and unlettered rural residents anywhere would find hard to muster, were insisted upon.
Even when documents were produced, they were often refused for discrepancies, for instance in the English language spelling of Bengali names or in age.
The tribunal’s concerns
The jury reflected on four questions.
In Sarbananda Sonowal vs Union of India , the Supreme Court relied on unverified—and now disproved—data to hold that migration amounted to “external aggression” on India. This, the tribunal held, dehumanised migrants and infringed on their rights to personal liberty and dignity. External aggression and internal disturbance thus became a narrative and influenced all subsequent proceedings under the Foreigners Act, the People’s Tribunal stated.
The Supreme Court’s role in “overseeing” the NRC process between 2013 and 2019 came under critical review by the tribunal. It questioned the extensive use of “sealed covers” by the court to determine the methods to establish legacies (family tree) under the NRC. It also felt that the court itself undertaking what is essentially an administrative process, that is, the preparation of the NRC list, was problematic. “When the courts ‘take charge’ of such processes, the system of remedies is virtually taken away,” the People’s Tribunal said in its interim report.
In the NRC case, the bench comprising Chief Justice of India Ranjan Gogoi and Justice Rohinton Fali Nariman has on multiple occasions asked the State coordinator of the NRC to submit the details of his work to the court in a “sealed cover”. The bench on one occasion even refused to share the contents of the sealed cover with the Attorney General of India K.K. Venugopal. This caused consternation among other stakeholders in the case.
The People’s Tribunal also expressed serious concern over the functioning of foreigners’ tribunals, which were created by an executive order of the Ministry of Home Affairs. The tribunal found that the cases referred to the foreigners’ tribunals—by the Assam Border Police Force and the Election Commission—were processed arbitrarily and without prior investigation or grounds for making such reference. “The verification forms were often empty with just names and addresses. No grounds were furnished,” the interim report said.
The People’s Tribunal also observed that the foreigners’ tribunals did not function independently and were not free from executive influence. “Tenure and salaries are decided by the government, keeping the members under the supervision and control of the appointing authority. Also, two-thirds of the cases decided by foreigners’ tribunals are by ex parte orders and, most often, the main grounds are not mentioned in the notice sent by the foreigners’ tribunals to the suspected persons,” the report said.
The report further said: “Judicial orders have set difficult conditions for release from detention camps—conditions that cannot be met by marginalised and vulnerable people. Despite the scale of the exercise, the judiciary’s insistence on setting deadlines has increased the pressure on both the process and the people involved.”
The human cost
The jury empathised with the angst of the people of Assam, but found it difficult to justify the human cost against this. “Large numbers of people were asked to appear before the verification officers in faraway places multiple times to prove their citizenship credentials. In most cases, the verifications were held outside the home district. The people living in areas like char (river island) suffered the most,” the People’s Tribunal stated.
The fear of getting excluded from the NRC, being declared as foreigner and finally sent to detention centres, has created a situation of permanent paranoia among the vulnerable communities, especially Assamese Muslims of Bengal origin and Bengali Hindus living in Assam. “This fear has created anxiety and pushed many people to suicide”, the report pointed out.
The tribunal also observed that women and children had borne a higher burden in the course of the NRC process. “Since underage marriage is common in the region, women become voters only after marriage. The documents have husbands’ names and may not help establish legacy. In most cases, women do not have any papers such as those related to land, birth or school. Women arbitrarily declared as foreigners and detained across detention centres in the State of Assam suffer disproportionately. In addition to the loss of citizenship, this also curtails their right to dignity, access to privacy and personal hygiene,” it revealed.
The tribunal expressed concern over the plight of other vulnerable sections too as a result of the NRC process. A large number of poor and impoverished migrant labourers working at construction sites or involved in ragpicking in various cities outside Assam were required to return for the process and were subjected to its arbitrary mechanisms, affecting their livelihood, it noted.
In many cases, children born to single mothers/victims of polygamy were not mentioned in the family tree. This led to their exclusion from the final NRC and made them vulnerable to detention, the report said.
The People’s Tribunal also voiced its reservations about the Centre’s move to extend the NRC to the rest of the country. On May 30, the Ministry of Home Affairs issued an order that decentralised the power of establishing foreigners’ tribunals. Prior to this order, only the Central government could institute tribunals that had the jurisdiction to determine the citizenship of individuals under the Foreigners (Tribunals) Order, 1964. After May 30, even State governments, Union Territory administrations, District Collectors or magistrates can exercise this power. Thus, the order permits various levels of government to set up tribunals in every corner of the country.
This order could foment social strife and alter India’s constitutional arrangements, and it was passed without public debate or discussion in Parliament, the People’s Tribunal cautioned. The announcement on September 15 by Chief Ministers Yogi Adityanath and Manohar Lal Khattar, of Uttar Pradesh and Haryana respectively, that these States too could opt for NRC sends ominous signals.
Under the second notification issued on July 31, the Centre instructed the Registrar General of India to update the “National Population Register (NPR) from April to September 2020”. The NPR is defined in Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003, as “the register containing details of persons usually residing in a village or rural area or town or ward or demarcated area…within a ward in a town or urban area”.
“Neither of these two notifications formally initiates an all-India NRC. But they lay down the groundwork for such an exercise,” the People’s Tribunal noted.
The NPR notification must be seen in the context of the possibility of its abuse, the tribunal alerted. Its three-stage process could allow collection and maintenance of sensitive and unprotected data which possibly could be used to target vulnerable individuals and groups. The NPR also violates the right to privacy, the tribunal said.