The Gauhati High Court on Friday issued notices returnable on June 3 to respondents including the governments of Assam and India in a set of writ petitions that challenge the holding in prisons of those who have fallen afoul of measures meant to control illegal immigration. Lawyers representing different sections of Assam’s civil society have come together to file three such petitions before the court.
Apart from the constitutional objection, the harm bit mainly comes in because of the other thing that’s supposed to follow – the National Register of Citizens a.k.a. NRC. This has only been done in one state so far, Assam, and 1.9 million people have been left out of the final NRC list because they could not prove through documents that they or their direct ancestors were citizens of India before March 24th 1971, which was the cut-off date. Over 1.2 million of the 1.9 million are estimated to be Hindus. The BJP leaders in Assam had promised the Citizenship Amendment Act would be passed to ensure no Hindus were left stateless because of the NRC. The CAA provides a backdoor for the NRC excluded Hindus, but there’s a catch or two. They will have to claim that they are illegal migrants from Bangladesh, Pakistan or Afghanistan in order to apply via CAA. They would presumably have to show some proof of identity as well, showing when and where they came from, since there is a cut-off date. The CAA is not applicable for Indians who cannot prove citizenship and it is not applicable for those who came after 2014. Therefore, the Indians left out of the NRC because of lack of documentation have no option but to fight cases in the Foreigners’ Tribunals and courts. If they lose the cases eventually, they will be sent to detention camps or, if any country accepts them, they will be deported. Poor people without the means to fight cases will be worst hit.
If the CAB is to be tweaked to allow the ILP to prevail over it, it effectively means that all the non-natives without any eligible document to prove Indian citizenship in the ILP states will be settled in the neighbouring States of Assam, Manipur, Meghalaya, and Tripura.
The futility of the ILP stands exposed from the fact that the ILP States had more population growth rate than the non ILP states except Tripura.
The report stated, “As per the Decadal Variation in Population Since 1901 to 2011 of the Census of India, from 1901 to 1971, Assam’s average decadal population growth rate was 23.95% against All India’s average decadal population growth rate of 12.90%. For a period of 70 years i.e. 1901 to 1971, the average decadal growth rate of population in Assam (23.95) was almost double of All India (12.90) and it changed the demographic character of Assam. But, the All Assam Students Union (AASU) had accepted the immigrants of this period as citizens of India under the Assam Accord.”
What is most likely to follow is a painful process of going through the legal grind for the excluded who are not saved by the Citizenship Amendment Bill – assuming the Bill will save anyone at all. That too remains a matter of doubt as there are legal and procedural issues.
At the end of it all, thousands of poor people will be further pauperised by the costs of legal fees. Some may die in detention camps or commit suicide. India’s close ties with Bangladesh will be severely tested. The Assamese jatiyobadis may earn an international reputation for xenophobia.
It is also important to note that the fundamental legal bases of the two Registers, viz the NRC of 1951 and the NRC of 2018 are distinct and separate. While the NRC, 1951 was completed under the Census Act of 1948 which makes the register a contemporaneous document prepared by field staff engaged in course of census operation and was legally “not open to inspection nor admissible in evidence” (ALR 1970 (A&N) 206 para 15), admittedly the current NRC is being prepared under the Citizenship Act 1955 read with the Citizenship Rules, 2003. To the best of our knowledge, the Courts and the various orders and judgement have not as yet constructed any legal framework to reconcile the two Acts which have distinct origin and purposes. Neither has any legal framework been evolved to legitimize the use of the NRC,1951 as evidence in matters governed by the Citizenship Act by any amendment or an enabling clause.
The matter is more complicated now as we know that the district offices have not maintained the NRC-1951 data for all the districts as was mandated in the Census of 1951 and the matter is today admitted by the government of Assam as well. While the government was forced to rely on other documents produced by the people, from those districts where the NRC 1951 was absent or fragmentary, to enlist their names in the NRC, 2018, it therefore raises serious questions on the legality or legitimacy of ‘updating’ NRC,1951 in the province of Assam as a whole.