By Prachi Aryal
Hannah Arendt in her book ‘The Origin of Totalitarianism’ raised citizenship as the “right to have rights”. In the Indian state of Assam, over 1.9 million people are being denied citizenship, and thus rights, after the Government of India on August 31, 2019 released the National Register of Citizens (NRC) . The list ostensibly attempts to identify illegal immigrants especially those who percolated through the porous border with Bangladesh. The NRC’s update in the state was the first since 1951, following long-standing demands from the indigenous Assamese people.
Historical Significance of the NRC
The partition of the Indian subcontinent in 1947 was a crucial event that signified the end of colonialism, the birth of two nations and the emergence of varied national identities for its residents. The cartographic solutions of post-colonial countries have impacted the language of citizenship as they grapple with regulation of the movement of people across territories that are contiguous and porous.
The Northeast region of India is tucked away in a remote corner of the subcontinent wedged between China, Bhutan, Bangladesh and Myanmar. The mass exodus of people from Bangladesh (then East-Pakistan) following the Liberation War on 1971 to the state of Assam has fostered a political climate in which questions of ethnic identity, language and migration are central. During the Bangladesh Liberation War of 1971, East Pakistan seceded from Pakistan and became the independent country of Bangladesh, the Assamese fear of influx of immigrants was accentuated. The rising fear of threats to Assamese identity and indigeneity led to an anti-immigration movement in 1980s. This period witnessed heightened communal riots and bouts of violence that led to the Nellie massacre, killing almost 1800 Muslims. The movement ended with the signing of the Assam Accord in 1985.
The Assam Accord was a Memorandum of Settlement signed by the Governments of India and Assam, and the All-Assam Students’ Union (AASU) and the All Assam Gana Sangram Parishad (AAGSP) in New Delhi on August 15, 1985. It established a system that used date of entry to India as the basis of determining citizenship. The Accord legitimized the citizenship status of those who had entered Assam from then East Pakistan before 1 January 1966, while a provision for 10 years of disenfranchisement was set for those entering between 1 January 1966 and 24 March 1971. The accord further recommended that people who had entered after 24 March 1971 would be deported as illegal migrants.
The implications of the NRC
The August 31st list has left 1.9 million on the brink of statelessness, of these many are amongst the Muslim minority. The people excluded from the list do not have an alternate Bangladeshi citizenship and are mostly people who come poor backgrounds without access to proper paperwork.
The Indian Ministry of Home Affairs has amended the 1964 Foreigners (Tribunal) Order to establish tribunals across the country to monitor the complaints of people excluded from the NRC. If they are declared foreigners by the quasi-judicial courts, they can make an appeal to the State High Court or the Supreme Court.
The quasi-judicial courts have been criticized as being led by inexperienced people who often hold bias against Muslim communities. Moreover, the long battle of litigation puts immense pressure on the minorities in Assam.
With annual flooding and calamities hitting the poor in the state of Assam, the reliance on nearly 50-year-old documents as the basis of their citizenship renders them uniquely precarious. The NRC exercise is the worst-case scenario of how in a weak capacity state like Assam, where documents are poorly distributed, excessive reliance on paper to mediate citizenship works as an instrument of exclusion. The people who are unable to prove their citizenship will either be deported or placed in detention camps.
The Problematic created by NRC and CAA
At the heart of the problem of statelessness is the geneses of the NRC and the Citizenship Amendment Act, 2019 (CAA). The CAA mandates that Hindus, Sikhs, Buddhists, Jains, Zoroastrians and Christians from Afghanistan, Bangladesh and Pakistan will not be treated as illegal immigrants. Instead, they will be eligible for citizenship after six years of residence in India. This is in accordance with the fear of many constitutionalists and observers that the laws, rule and jurisprudence on citizenship in India has become increasingly inflected by religion.
As highlighted by N.G. Jayal, there has been a transformation from the jus soli or birth-based principle of citizenship to a more jus sanguinis or descent-based principle in India. The enactment of CAA signifies a conspicuous deviation from the religion-neutral conception of citizenship contained in the constitution, thereby undermining the principle of jus soli.
Rizwana Shamshad mentions how the current popular discourse of Hindu nationalists in India advocates for the citizenship for Hindu Bangladeshis whilst demanding deportation of Muslim Bangladeshis. This results in the false narrative of identifying Hindu Bangladeshis as ‘refugees’ whilst labelling the Muslim Bangladeshis as ‘infiltrators.’ These narratives are then used for advocacy and campaigning during elections to secure votes by resonating with ‘hyper-nationalist’ emotions.
Furthermore, by rendering people stateless, India stands in violation of various articles of the International Covenant on Civil and Political Rights, which guarantee freedom to choose residence and enshrine equal rights to minorities. Exclusions by the state based on race and descent also violate the International Convention on the Elimination of All Forms of Racial Discrimination.
The uncertain battle ahead
The geneses of the NRC and CAA set out a path of uncertainty for the many minorities in the region of Assam. Through the CAA those who are excluded from the NRC and identify as any religion other than Muslim can get the status of refugee and hence seek citizenship in India. However, the Muslim population will not have any legal recourse to claim refugee status and will be labelled illegal immigrants. The immigrants face risk of indefinite detention and deportation.
The plight of these 1.9 million people has been overshadowed by the current pandemic. With minimal resources and in constant fear they risk being detained indefinitely without the access to legal recourse. The concern remains that the move to continue with the NRC, the poor from a weak capacity state will be the most disadvantaged. In trying to maintain popular support along the religious lines, India might create a new cohort of stateless people.
Prachi Aryal is an MA student in the Department of War Studies at King’s College London. Her research interest is inclined towards Gender, Human Rights, and Cross border conflicts in transitioning nations and how visuals from conflict zones play a role in communicating the realities of conflict to the broader world. She completed her BA in Journalism from the University of Delhi, India.