(This post is authored by Angshuman Choudhury. Angshuman is the coordinator of the South East Asia Research Programme at the Institute of Peace and Conflict Studies, New Delhi. He Tweets at @angshuman_ch. )
In the next few months, the government of Assam will release the final draft of the updated National Register of Citizens (NRC)—a Supreme Court sanctioned and monitored project that intends to identify immigrants of East Bengali origin residing in Assam without citizenship documents over varied time periods.
This citizenship certification project is an outcome of longstanding demands by local Assamese groups to identify and deport immigrants of East Bengali origin. However, in the absence of a concrete state and legislative policy on long-term migrants of foreign origin, the drive could trigger a precarious situation of statelessness, protracted detentions, and possibly even mass deportation in the months to come.
This could be further compounded due to the dearth of a concrete legal doctrine in India for protection of stateless people in the face of blatant persecution or arbitrary incarceration. Yet, India’s constitution can come to the rescue for millions of vulnerable people in Assam who currently face the possibility of complete disenfranchisement of constitutionally-guaranteed rights by the day’s government.
Continuous immigration, threat perceptions, and their consequences
The current NRC drive was mandated by a December 2014 Supreme Court of India order. The government of Assam’s Office of the State Coordinator for National Registration published the first list on 31 December 2017, which featured 19 million names and left out thousands of long-term residents of the state, including 15 local parliamentarians.
The demand for such a citizenship certification drive first came to the fore during the Assam Movement (1979-80), which gave a collective voice to the popular demand to protect ‘Assamese culture’ from an ostensible ‘demographic invasion’. Although the issue surfaced in the public discourse right after independence, only during the 1970s did Assamese nationalist groups begin to mobilise popular support on the anti-immigration agenda.
More importantly, the Movement concluded with the historic 1985 Assam Accord that paved the way for a critical amendment in India’s Citizenship Act of 1956. In 1986, Article 6(A) was inserted into the Act, which gave citizenship to anyone of Indian origin (either parent or grandparent was born in undivided India) entering Assam from the “specified territories” (erstwhile East Pakistan) before 1 January 1966, and and lived in India since. Those entering Assam on or after this date but before 25 March 1971, were ordinarily resident in Assam and deemed foreigners who could claim citizenship. However, there is no specification for those entering the state after 1971 – thus effectively rendering an entire section of people in Assam stateless in a single stroke.
Despite this, ‘stateless’ is a term that has only found bare mention in the narrative around this issue. In fact, it remains in the margins of India’s national politico-legal discourse with respect to displacement and asylum policies. The movement of people of East Bengali origin into Assam through the colonial and post-colonial periods – often referred to as the partition that never ended – and the response to it, highlights India’s need to develop concrete legislation that deals with long-term migration and asylum seekers.
Indian legal doctrine on statelessness
In India, the legislation around statelessness is scattered and insufficient. There is no constitutional or legislative provision that directly deals with this issue. The absence of a single refugee law further only deepens the state’s incapacity to effectively tackle statelessness-related situations. Thanks to this legal void, state policy on migrants (both distress and economic) without citizenship of a second country remains grossly arbitrary.
For example, India treats Tibetans who fled their homeland after the 1959 Chinese invasion and members of the Rohingya community who fled theirs after the 2012 Rakhine communal riots differently. While the former is entitled to a host of state-sponsored largesse like proper settlement areas, educational and health benefits, Registration Cards (RCs), economic opportunities, and even citizenship rights for those born between 1950 and 1987, the latter continue to languish in trying conditions under partial support of the UNHCR.
Moreover, India has not ratified the 1954 UN Convention Relating to the Status of Stateless Persons or the 1961 Convention on the Reduction of Statelessness – both of which are crucial directive instruments. At the same time however, the 1961 Convention contains certain sections – like Articles 8(2)(a), 8(2)(b), 8(3) – that permit states to deprive foreigners of citizenship in specific cases of deliberate misrepresentation, fraud, and non-notification to authorities. Hence, even if India had signed the Convention, these sections could apply to Bangladeshi migrants in Assam. This would, however, be done through fair legal procedures rather than arbitrary state policies.
Nevertheless, it is crucial to note that conditions of long-term statelessness are often triggered by certain inherent conditions of displacement. Migrants who enter another country without formal documentation, on several occasions, do so under extreme conditions of socioeconomic deprivation or political persecution. Expecting such disenfranchised people to produce identity/legacy documents after a long period of stay is harsh and impractical. In many ways, this is the case for Bangladeshis who came to Assam in search of better economic prospects and social security.
The Assam government’s immigration policy
According to the Supreme Court order that sanctioned the NRC drive, the follow-up action to identification of the immigrants is deportation to the ‘specified territories’ – in this case, present-day Bangladesh. However, India does not have a bilateral deportation treaty with Dhaka. Furthermore, Bangladesh has never openly acknowledged the outward flow of its people to Assam, thus rendering the whole issue a non-starter in diplomatic negotiations. Under these circumstances, deportation of the identified migrants appears highly unlikely, thus opening up the possibility of a dangerous situation involving prolonged detention in camps.
Meanwhile, on 2 January 2018, Assam’s Chief Minister Sarbananda Sonowal told The Times of India that all those who fail to make it to the NRC list “will be barred from all constitutional rights, including fundamental and electoral.” He added that these people would only enjoy “human rights as guaranteed by the UN that include food, shelter and clothing.”
Two months later, in a public event organised by ThePrint.in in New Delhi, Assam’s finance minister and BJP’s point person for India’s Northeast, Himanta Biswa Sarma, announced that all those identified as foreigners would be declared ‘stateless citizens’. If this is implemented, the state government would be officially attesting to the already-prevailing statelessness of millions of migrants, thus contravening key constitutional safeguards that already exist.
The lack of a coded state policy on asylum seekers, migrants and stateless people is precisely what has created a quasi-legitimate space for the government to strip migrants off all social, economic, and statutory rights. However, while Sonowal’s and Sarma’s assertions serve well to placate the local Assamese electorate, they may be in direct violation of pivotal constitutional provisions that guarantee bare minimum rights to everyone in Indian territory.
Constitutional safeguards against rights deprivation
India’s constitution comprises of several sections that guarantee certain universal rights to citizens of the country and foreign nationals alike. They include Article 21, which guarantees the right to life and personal liberty; Article 21A that offers the right to elementary education; Article 22 that offers protection against arrest and detention in certain cases; and Article 14 that guarantees equality before the law and equal protection of laws.
These guarantees that the Indian Constitution offers to all persons on Indian territory do not, however, apply to ‘enemy aliens’—citizens of countries that are at war with India—as laid down by Article 22(3). However, Bangladeshi migrants in Assam do not fall under this category as their country of origin is not hostile towards India.
Yet, in the case of Bangladeshi immigrants in Assam, there remains a grey area wherein the migrants, by virtue of not carrying any citizenship documents of Bangladesh, are not ‘foreign nationals.’ This allows for conditions of long-term statelessness to prevail, while also highlighting the gap in necessary legislation.
However, India is party to several international instruments that prohibit active disenfranchisement of any set of peoples. For example, by virtue of its ratification of the International Covenant on Civil and Political Rights (ICCPR), in conjunction with Article 51(c) of its own Constitution, India is legally bound by its provisions that ensure certain global standards in civil-political rights to citizens. Article 2(1) of the covenant says:
“Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory [emphasis added] and subject to its jurisdiction the rights recognised in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”
Subsequent sections lay down a broad range of rights, several of which are concomitant to provisions of the Indian constitution. Moreover, India is also party to the Convention on Elimination of all Forms of Discrimination against Women, and the Convention on the Rights of the Child, both of which mandate the Indian state to offer concrete civil, political, and social rights to women and children – citizens or otherwise.
Indian lawmakers, therefore, need to pay closer heed to the domestic and international legal framework on rights that India is bound by before drafting reckless and inhumane policies.
Cross-border migration of various forms remains a stark reality today, especially in regions plagued by conflict, discrimination, and socioeconomic deprivation. The ongoing NRC drive and the foreseeable government plan to decertify millions of migrants and unregistered residents of Assam is a potent opportunity for legal thinkers and commentators to develop the Indian legal doctrine on migration, asylum, and statelessness.