Of Statelessness, Detention Camps and Deportations: India and the “National Register of Citizens” in Assam

While much of the world is aghast and transfixed by the migrant detention camps in the U.S., there is another dire human rights and humanitarian crisis brewing and about to reach its zenith in the Indian state of Assam on 31 July 2019. A legal process is underway – updating the “National Register of Citizens” – that threatens to dispossess over 2 million individuals, leaving them stateless and without a remedy. 

In brief, and over simplifying perhaps, Assam – which borders Bangladesh and Bhutan, as well as other states in the Indian union – has a historically fraught relationship with the Indian state, linked to complex questions of borders, ethnic identity, cross-border migration and minority rights. With colonial roots, and extending to India post-partition, political Assamese nationalism has been a source of constant tension, spilling into violence such as the 1983 Nellie massacre. Eventually, the signing of the Assam Accord in 1985 formalized much of the discourse around ‘foreigners’ and what to do about them. (For a condensed timeline of the question of citizenship in Assam, see here).

The issue has been on the back-burner for years, morphing and eventually revived in the past decade to harness a rising tide of anti-immigrant sentiment and xenophobia. The plan in motion is to formalize a ‘register of citizens’ and those left off the register may be declared foreigners, subject to deportation. The deadline for this final list looms large and is set to be released on 31 July 2019. 

Kafkaesque legal process

The aim of the exercise is simple. Prove your citizenship – the onus is on the individual to get on the citizens list – and if you don’t, the state will remove those that are suspect, fall out of the categories that can apply, or who do not have the means to prove that they are citizens. An amendment to the Citizenship Act by virtue of the Assam Accord means that those who are on the 1951 census, and those who migrated between 1966 and 1971 may be considered citizens, but those after 24 March 1971 are to be considered foreigners, subject to deportation. 

At the heart of all this of course is a Kafkaesque maze of legality for people to navigate, many without resources and without the wherewithal to prove that they belong on the list. The basis of inclusion on the register is to prove links to the 1951 census, the electoral roll, or proof of familial links – all opaque processes, and complicated by due to lack of adequate documentation for many. 

Even more problematic is that this procedure has been blessed by the Supreme Court of India, and even prodded along. In addition to intervening directly in the case, the troubling role of the court includes stepping in for the executive at times, taking away remedies, as well as approving dubious methods of verification of citizenship, all under the cloak of confidentiality. For an excellent analysis of the troubled role of India’s apex court in this NRC process, see here. In another piece that pulls no punches, a senior lawyer at the Indian Supreme Court refers to the role of the court as a “prelude to ethnic cleansing”.  

The Supreme Court specified a timeline for completion of the list that culminates on 31 July 2019. After this date, when the final list is released, all those whose names are not on the list will be suspected ‘foreigners’ and will have to appear at ‘Foreigners Tribunals’. Failure to prove nationality before these tribunals will result in deportation (to where, no one knows!). Furthermore, there are multiple challenges regarding the establishment and functioning of these tribunals – including the lack of adequately trained judges. But even more disturbing are the skewed incentives, where declaring more individuals foreigners seems to be a key performance indicator of the adjudicators. Another of the multiple flaws in the procedure is the ability of third parties to object to the inclusion of names on the list – initiating yet another set of opaque bureaucratic procedures. Furthermore, those excluded from the NRC will have a period of sixty days to appeal.  

Also, suspected individuals are already being detained in camps – whose appalling conditions are well documented. At a recent hearing before the Supreme Court of India in the case of Harsh Mander v Union of India,important legal questions of indefinite detention and the conditions in the camps were raised. The hearings before the court however became an exhortation to the government to do more to deport individuals. For more on the hearings, see here. 

The above are but a few of the problematic legal questions that have arisen, as a result of the NRC process.

Multiple violations of international law 

There is a slew of international law obligations that are being violated here. While it is honestly difficult to even know where to start, a document that comes to mind is the joint letter to the Indian government from the Vice-chair of the UN Working Group on Arbitrary detentions, and the Special Rapporteurs on Minority Rights, on Racism and Xenophobia, on Freedom of Expression, and on Freedom of Religion. 

The Annex to the letter lists obligations under international human rights law that India needs to adhere to, by virtue of its ratification of international conventions. These include obligations under the ICCPR – Art. 12 relating to minority rights, and Art. 19 relating to the right to receive information as part of democratic processes; fairness of the hearings to be in compliance with Art. 9 & 10 of the UDHR, and Art. 9 & 14 of the ICCPR; racial discrimination per ICERD, including Arts. 1, 2, 5 (on nationality) and Art. 6. The annex further refers to the issue of statelessness brought up by the Special Rapporteur on Minority Rights.  

In particular, I would emphasize the flawed procedures, including the burden of proof being placed on the individual, the lack of adequate legal representation, the lack of appropriate judicial processes, as well as the ability of others to file objections, as falling foul of the ICCPR. 

Furthermore, the conditions of detention are reprehensible. Many of those detained have been held for over 2 years and in appalling conditions. These would violate multiple obligations including under the ICCPR, CRC, CEDAW, CPRD and the CERD conventions. 

On the question of statelessness and nationality, there are a few strands to unpack. One aspect relates to the right to citizenship, and the obligation of states not to create conditions of statelessness – such as emphasized by the 1954 and 1961 Conventions on Statelessness (which India is not a party to). However, many of the rights enshrined fall within the rubric of international human rights treaties, as detailed above, and which India is a party to. 

Another aspect of international law relates to those who are refugees, and to whom the customary international law norm of non-refoulement would apply. I would approach this with care, and not argue non-refoulement solely, given most of the claims are in fact from long term residents, who are not claiming refugee status. Sole reliance on this aspect of international legal protection may lead to the inference that all those left off the NRC are indeed foreigners, with or without claims for refugee status. 

Incalculable consequences

There are stories every day of individuals excluded from the NRC list – an army veteran, the winner of a significant national arts award, and of people committing suicide at being excluded. 

In this state sponsored process that is going to create stateless people, the danger of instability and violence cannot be ruled out. I have previously written about the International Criminal Court deportation case between Myanmar and Bangladesh – and the implications in relation to any instances of mass atrocities resulting from this exercise in Assam. It is also now abundantly clear that there are murmurings now of adapting this exercise to other states – that have no international borders or history of migration – in the guise of xenophobia. Politicians in at least three other states – so far – are espousing the Assam NRC example as a model.  

The cost of human misery of this exercise is unimaginable. As is the degree of inhumanity in propelling forward what is possibly the largest exercise in creating conditions of statelessness ever. A dubious distinction indeed.