THE CITIZEN BUREAU | 4 FEBRUARY, 2019
A Six Point Way Forward by Former Civil Servants For a “Just and Fair” NRC
NEW DELHI: Former civil servants have formed an informal Concerned Citizens group that has been issuing open letters on matter of deep concern for Indian democracy. This open letter, released today, deals with the controversy over the National Register of Citizens that has left over 40 lakh persons ineligible for Indian citizenship, generating fear and insecurity in the North-East. The letter lists six points as a collective way forward with suggestions that meet “the norms of constitutional principles and human rights, while giving a measure of constitutional principles and human rights, while also giving a measure of comfort to the indigenous populations that perceive a threat to the continuation of their culture and traditions.”
The text of the letter:
Our group of former civil servants of the All India and Central Services has, over the last twenty months, issued a number of letters expressing our concern at the erosion of constitutional values in the country and the weakening of institutions entrusted with ensuring the functioning of a healthy democracy. As in our earlier letters, we reiterate our allegiance to the Constitution of India and clarify that we neither have a political agenda nor are we linked to any political party.
The complete draft of the National Register of Citizens (NRC) in Assam was published on 30 July 2018, leaving over 40 lakh persons ineligible, making up some 12 per cent of the total applicants. There is a real fear among those excluded - overwhelmingly from minority groups, both Muslims and Hindus of Bengali descent, besides Nepali and Hindi-speaking persons, among them a large percentage of women, children and daily wage workers, constituting the poorest of the poor - that they might be rendered stateless.
Although the NRC process is being monitored by the Supreme Court (SC), we believe there has been little informed debate in the country on the NRC updation that affects the lives of lakhs of persons; there is also no clarity on what the legal status and fate of those excluded from the final NRC will be, at the end of this court-monitored process. The large exclusion of names from the draft NRC is the outcome of a mix of procedural and capacity weaknesses of the NRC State Coordinator and has been much reported about.
The shortcomings include poor record management, technical glitches and arbitrary physical verifications, among others. Central to the exclusion from the NRC, disproportionately, of linguistic, religious and gender minorities, however, is also the in-built discrimination in rules and procedures, segregating populations into ‘original’ and ‘non-original’ inhabitants and the use of differential standards to verify claims and supporting documents for the two categories.
The SC has endorsed this segregation of applicants into so-called ‘original’ and ‘non-original’ inhabitants and has also approved automatic inclusion of ‘original’ inhabitants in the draft NRC while, on the other hand, decreeing a two-step process of 'exhaustive' and 'thorough' verification for applicants deemed ‘non-original’. Without any definition or directions to determine who the ‘original’ inhabitants of Assam were, ‘non-original’ applicants, in practice, have been taken to mean mostly Bengali and Nepali-speaking persons and other minorities.
Those aggrieved by their non-inclusion in the draft NRC had the right to file claims and objections (C&O) till 31 December 2018. But this does not seem to provide redress against the already built-in discriminations, exacerbated by the rather liberal provisions for filing objections against wrongful inclusion, which include removing the bar on the number of objections, doing away with the requirement of the objector being a local resident and removing the penalty against false and frivolous objections. Not surprisingly, media reports appear to indicate that, in the final hours of receipt of C&O, the number of objections against inclusion in the final NRC jumped from a mere 6000 to 3 lakhs.
Those not satisfied with the NRC C&O results have the option to appeal to Foreigners Tribunals (FTs), based on whose decisions, the final inclusion in NRC will be decided. FTs use the Foreigners Act, 1946 to test claims to citizenship, wherein the burden of proof is on those proceeded against. These are heavily weighted against so-called ‘suspected foreigners’ without providing them any statutory rights. In practice, by shifting the burden of proof on those proceeded against, they set the bar too high, with likely severe consequences, as those affected by the NRC exclusion are mostly poor and illiterate, and government record keeping is neither efficient nor accessible.
Those excluded from the final NRC will face the risk of being declared foreigners and locked up in detention centres. With Bangladesh or any other country not recognising those excluded from the NRC as their citizens, nor there being any repatriation treaty between India and Bangladesh, these detentions will potentially be indefinite. The six detention centres in Assam currently house, between them, over a thousand persons declared as foreigners. Providing an early warning of the shape of things to come, a recent enquiry by the National Human Rights Commission (NHRC) into these detention centres provides a chilling account. It speaks of the absence of a legal regime governing rights of the detainees, indefinite incarcerations and accompanying vulnerabilities suffered by detainees, the lack of any legal redress whatsoever and the sheer hopelessness of the detainees’ condition.
Even while the exercise to finalise the NRC is going on, the ill-advised decision of the Government of India to push a flawed Citizenship (Amendment) Bill through Parliament has added fuel to an already simmering fire. This has already led to a storm of protest in the North- Eastern states and will further vitiate the NRC process. Not only will this proposed legislation exacerbate local tensions between ‘indigenous’ and ‘migrant’ populations, it also appears to be clearly violative of Article 14 of the Constitution, denying as it does “equal protection of the laws within the territory of India” to all persons, irrespective of citizenship.
Having dealt with such issues during our careers in public service, the signatories would like to offer some constructive suggestions which meet the norms of constitutional principles and human rights, while also giving a measure of comfort to the indigenous populations that perceive a threat to the continuation of their culture and traditions:
(1) We would request the SC to order a review of the NRC C&O modalities and their implementation, so as to prevent them being discriminatory against so-called ‘non- original’ inhabitants, usher in transparency in the proceedings and involve persons of eminence, drawn nationally, to act as independent observers, supporting the Supreme Court to deliver a just and fair final NRC. We recommend a system akin to that fruitfully used by the Election Commission of India, of senior officers of the Government of India acting as independent observers in each district.
(2) The Assam government should review the working of the FTs to make them effective judicial fora for redress for those likely to be aggrieved by NRC C&O outcomes. This should include both a review of the relevant laws under which FTs operate – ensuring that the proceedings will allow those proceeded against a measure of statutory rights, following due process – besides ensuring that FTs themselves are shielded from extraneous pressures.
(3) The Assam government should review the working of detention centres for ‘declared foreigners’, enforce safeguards against arbitrary, discriminatory and indefinite detention, and align procedures and practices to principles of natural justice and to international norms and standards. There should be regular third-party inspections by the NHRC and independent organisations to check human rights violations and to monitor the functioning of the camps.
(4) The Government of India should, at the earliest, commence discussions with neighbouring countries, especially Bangladesh, on the future status of those finally established as “illegal migrants”. Sincere efforts should be made to arrive at an understanding that resolves the present issue, addresses future concerns and seeks to mitigate the hardship and sufferings of those who are declared “illegal migrants”. The Government of India should also examine measures to ensure that the burden of “non- nationals” is shared by different states, and not left for Assam to shoulder alone.
(5) The Government of India should, at the earliest, clarify, so as to clear the air, its position on the legal status of those who will stand excluded from the final NRC, and what the future holds for them. To prevent their being made “stateless”, thus depriving them of the basic human right to a nationality, Government of India must, where extradition of “non-citizens” is not possible, declare a pathway to citizenship for those excluded. This must take into account, in this passage of 47 years since the cut-off date (of 25th March, 1971), children born and families established in their places of residence.
(6) The Government of India should desist from any planned changes to national laws and procedures concerning citizenship that, in so far as they make citizenship contingent on religious affiliation, are discriminatory and violative of the equality provisions of the Constitution, apart from threatening to derail the intent of NRC updation.
Long-pending problems call for innovative solutions. These require the cooperation of all stakeholders in the democracy that is India, in a spirit of compassion, trust and respect for the dignity of the individual. We are suggesting some steps for coming to grips with the issues confronting us today. We appeal to all citizens concerned with the development of a healthy democracy to debate the issues raised by us in the hope that we are able to evolve workable solutions in the near future.