On 31 August, India released the final iteration of the National Register of Citizens (NRC), a list of “genuine Indian citizens” that is being updated on order of the Supreme Court. The final version, which comes after two preliminary drafts published in 2017 and 2018, identified close to 1.9 million as “illegal immigrants”. The second draft had excluded nearly 4 million people.
As per the law, any individual who entered Assam from Bangladesh on or after 24 March 1971 – the date East Pakistan became Bangladesh – is an “illegal immigrant” and does not qualify to appear in the NRC.
The NRC, for now, is exclusive to Assam – a multi-ethnic, multi-religious state with a powerful nativist sentiment running through majority Assamese-speaking segments. The list, in many ways, is the culmination of decades of anti-immigrant persuasion by these influential ethno-nationalist quarters who routinely project “illegal immigrants” from Bangladesh as a threat to their culture and identity. One can trace the root of this sentiment to the pre-Partition period when the British colonial government engineered the transfer of Bengali migrants, both Hindu and Muslim, from undivided Bengal Province to Assam, triggering ethno-nationalist anxieties amongst Assamese-speaking groups.
However, the situation today is grim. As nearly 2 million people stand to lose their most fundamental right, that is the right to have rights, India stares at an unprecedented situation of mass statelessness. In the absence of a national refugee law and India’s non-signatory status to the United Nations (UN) 1954 Convention Relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness, at least a million individuals stand to become invisible in the eyes of the state without any concrete legal safeguards. Worse, they risk being detained for a protracted period of time.
The UN High Commissioner for Refugees (UNHCR), Filipo Grandi, has already rung the alarm bells and warned that “any process that could leave large numbers of people without a nationality would be an enormous blow to global efforts to eradicate statelessness”. The Indian government shot back by stating that those who failed to feature in the final NRC “will not be detained and will continue to enjoy all the rights as before till they have exhausted all the remedies available under the law.”
It is indeed true that those excluded from the final NRC will have some avenue to challenge their exclusion. The NRC authority in Assam has stipulated a 120-day window to file appeals at one of the 400 ‘Foreigner Tribunals’ (FT) in the state. These quasi-judicial tribunals, formed under the Foreigner Tribunals Act 1941 and operating within the ambit of the Foreigners Act 1946, are part of the state’s multi-pronged citizenship determination framework and have the final say on determining the citizenship status of a suspected illegal immigrant. The other two components, which predate the NRC, are the FT system and the Election Commission’s “Doubtful-Voter” (D-Voter) classification.
But, the situation is far more complex than how New Delhi has portrayed it. What the MEA didn’t divulge is what happens when appeals are filed by excluded applicants at the FTs and the tribunals confirm their NRC exclusion. The logical progression here is either deportation to Bangladesh or detention in Assam. Given the sensitivity of the whole issue within the India-Bangladesh bilateral and the absence of any repatriation treaty between both, detention is far more likely. This is a dangerous prospect, especially given the dismal conditions in which the existing detention facilities have been functioning.
On the other hand, many of those excluded from the final NRC may find themselves salvaged by a reversion of status by the FTs. But, it is yet unclear as to how long would these tribunals take to dispose off all the appeals in a fair and just manner. Moreover, even if we assume that the FTs reverse the exclusion of half of the excluded applicants, almost 950,000 individuals will find themselves stripped of their Indian citizenship and subsequently, in detention camps. Needless to say, this is not a small number.
Besides, the tribunals in Assam have come under fire from various quarters, including the media, for operating in an arbitrary fashion and relying on ex parte trials to meet conviction targets. Worse, they are accused, by means of a self-inquiry, of taking money to churn out “foreigners”. This has resulted in wrongful convictions of numerous individuals who are “genuine Indian citizens”, or in other words, have the necessary documents to trace their ancestry to present-day Indian territory. Perhaps the most glaring evidence of this is the fact that amongst those excluded in the final list, are former Indian Army soldiers and family members of a former President.
Instead of fixing these loose ends and making the tribunal regime more transparent, the federal government recently issued an amendment to the Foreigner (Tribunals) Order 1964, giving each FT “the power to regulate its own procedure”. This effectively widens their space to act arbitrarily. In light of this, one only wonders as to how the FTs would handle large number of appeals in a fair, just, and time-bound manner in the wake of the final NRC’s release.
The core administrative makeup of the NRC updation exercise, too, is riddled with in-built ills that hinder the production of what many call a “fair and clean” list. For one to feature in the list, she or he has to furnish a complex set of interconnected “legacy data”, including family tree details, that prove that the applicant or their ancestors have been living in Assam since before the official “cut-off date” i.e. 24 March 1971. For many to prove this, is an uphill task as it requires them to produce a fairly large set of documents. It is even more challenging for those from socioeconomically distressed communities who do not possess such documents due to lack of awareness or resources. The annual floods in Assam only make matters worse by inundating settlements and washing away personal belongings, including important identity documents.
Even if one is able to furnish all the documents, minute clerical lapses or misinterpretations may lead to exclusions. Following the final NRC’s release, several such cases of obvious administrative lapses have come to light. In one particular instance, amongst two sisters who submitted the exact same set of documents, one managed to appear in the list, while the other did not. Further, many children have been dropped from the list as they failed to establish a convincing enough link to their parents whose names are on the list. This is despite NRC rules stripulating special exceptions for children under 14 whose parents’ names are in the NRC, but who do not possess “adequate documentary evidence” to confirm their parentage.
All of these have had drastic consequences across the board, pushing vulnerable and marginalised people to the brink. Those from minority Muslim and Bengali communities have particularly faced the full brunt of the NRC exercise, which is fundamentally majoritarian in nature and intent. These minorities, most of whom trace their early lineages to East Bengal and have historically been at the short end of Assamese ethno-nationalism, fear being left out owing to the in-built tendency of the NRC to distil the “original inhabitants” of Assam from “immigrants”. This has spurred widespread social anxiety and distress amongst disempowered communities, with many even committing suicide rather than waiting to become stateless.
Beyond these bureaucratic gaps, the whole NRC exercise is mired in heavily polarised politics. In more ways than one, it has become an instrument for vested political groups to segregate and exclude. For the Hindu nationalist Bharatiya Janata Party (BJP), which is the ruling party in both Assam and at the federal level, the NRC is a tool to exclude Muslims of East Bengal origin. For Assamese nationalist groups who claim to be secular, such as the influential All Assam Students’ Union (AASU), it is a means to exclude both Hindus and Muslims of the same Bengali stock.
So, while initially, both groups were highly spirited about the exercise, the final list proved to be a dud. The final exclusion figure of 1.9 million is far below the exaggerated numbers on “illegal immigrants” thrown around by Assamese and Hindu nationalists since decades. So, it is not surprising that both quarters have claimed that the whole exercise was flawed since it did not exclude enough number of “illegals”, and particularly in BJP’s case, enough number of Muslims. The Assam government has even filed a fresh appeal to the Supreme Court for limited reverification in certain districts.
In line with the BJP’s communal line, the party had introduced a draft law in the union parliament earlier this year – known as the Citizenship Amendment Bill (CAB) – that seeks to regularise Bangladeshi immigrants from six religious communities i.e. Hindus, Buddhists, Jains, Sikhs, Parsis and Christians. Evidently, the intent here is to exclude Muslim immigrants – whom the current union home minister once referred to as “termites” – from the citizenship framework. Needless to say, the CAB was met with vehement criticism from Assamese ethno-nationalists who consider all immigrants – Hindus and Muslims – as “outsiders”.
At the heart of the NRC exercise is the bitter reality that it has inherently been an exclusionary project from the beginning. Notwithstanding the judicial sanction that it has received from the Supreme Court, the NRC is premised on dubious data on “illegal immigrants”, exaggerated fears of a demographic inversion, incomplete adjudication by the highest court, and xenophobia of the local Assamese-speaking elite. Even the 2014 apex court judgment, which sanctioned the NRC’s updation, cited reports – such as one by a former state governor – that use obscure data to make the case for expulsion of “illegal Bangladeshis” from Assam.
The next few months are critical in not just deciding the future of individuals in Assam, but also in shaping the very nature of the Indian state. The whole exercise has become a litmus test for Indian democracy and its capacity to accommodate and tolerate. This is even more critical in the context of the majoritarian tide that the BJP has actively fostered by slowly but surely diluting India’s secular credentials. By pushing a million people into the precarious zone of liminal existence, the government only stands to set a negative precedent for the whole region and create a sub-population that will remain acutely vulnerable to economic exploitation, forced displacement, prolonged incarceration and majoritarian violence for a long time to come.