The tribunal also blames SC for NRC crisis and said it has the potential of increasing ‘vulnerability’ and spawning an enormous humanitarian crisis.
Abdul Bari Masoud | Caravan Daily
NEW DELHI – The People’s Tribunal on Assam National Register of Citizen (NRC) on Sunday warned of serious implications if the NRC exercise is extended to the rest of the country. The tribunal said it (NRC) has the potential of increasing ‘vulnerability’ and spawning an enormous humanitarian crisis.
The tribunal’s eight-member jury including many retired Supreme Court judges and a High Court Chief Justice, raised serious constitutional issues emerged during the NRC process, “severely indicting the judiciary’s role”.
The jury observed that the Supreme Court’s “erroneous equation of migration with external aggression or invasion” in the judgment of present BJP Chief Minister Sarbananda Sonowal case has subsequently become a narrative to dehumanise ‘migrants’ and to infringe their fundamental rights. It also observed that it is a cause of worry that there are no signs of this humanitarian crisis abating.
The Jury made these observations in its interim report after a two-day hearing of the views and experiences of people excluded from the NRC list (published on August 31), and of legal leading lights including advocates, Aman Wadud, Gautam Bhatia, Vrinda Grover and Mihir Desai.
While underlining that the citizenship is the “right to have rights, is one of the most basic fundamental human rights in modern societies”, the jury observed and said, “The fear of getting excluded from the NRC, being declared as foreigner and finally being sent to detention centre, has created a situation of permanent paranoia among the vulnerable communities, especially Muslims and Hindus of Bengal-origin living in the state of Assam.”
Justice Shah said the jury reflected on four questions:
1. Has the NRC process been in conformity with the Constitution?
2. What has been the role of the judiciary in upholding constitutional processes and morality?
3. What was the humanitarian crisis? And
4. The implications of extending the NRC to the rest of the country.
The Jury divided the NRC process into two parts. First is the judgment of the Supreme Court in Sarbananda Sonowal Vs Union of India; and the second is the Supreme Court’s role in “overseeing” the NRC process between 2013-2019.
It said both the phases raise important constitutional concerns.
In Sonowal’s case (2005), the Supreme Court relied upon unverified – and now disproved – data to hold that migration amounted to “external aggression” upon India. It then invoked Article 355 of the Constitution to strike down legislation that would have placed the burden in a foreigner’s case upon the state. The court thus established a constitutional requirement that the burden would always lie upon the individual accused of being a foreigner.”
The second phase has also raised serious constitutional issues including “extensive use of sealed covers to determine the methods to establish legacies (family tree) under the NRC; the court itself undertaking what is essentially an administrative process i.e. the preparation of the NRC list. When the courts “take charge” of such processes, the system of remedies is virtually taken away; foreigners tribunals were created by an executive order of the Ministry of Home Affairs and cases then referred to the Foreigners Tribunals – by the Assam Border Police Force as well as the Election Commission – have been processed in an arbitrary manner without prior investigation or grounds for making such reference.
“The verification forms were often empty with just names and addresses. No grounds were furnished; Tribunals do not function independently and are not free from executive influence. Tenure and salaries are decided by the government, keeping the members under the supervision and control of the appointing authority. Also, two third of cases decided by Tribunals are by ex parte orders and, most often, the main grounds are not mentioned in the notice sent by the Foreigners Tribunals to the suspected persons.”
On the role of the judiciary in upholding constitutional processes and morality, the learned members of the jury observed:
The judgment in the case of Sarbananda Sonowal erroneously equated migration with “external aggression” or invasion which, in effect, dehumanised migrants and infringed their rights to personal liberty and dignity. External aggression and internal disturbance thus became a narrative and influenced all subsequent proceedings under The Foreigners Act.
It underlined that “Judicial orders have set difficult conditions for release from detention camps – conditions that cannot be met by marginalised and vulnerable people. Despite the scale of the exercise, the judiciary’s insistence on setting deadlines has increased the pressure on both the process and the people involved. “
On the unending humanitarian crisis, the eminent jury said it does empathise with the angst of the people of Assam but find it difficult to justify the human cost against this angst. It observed, “large numbers of people were asked to appear before the verification officers in faraway places multiple times to prove their citizenship credentials. In most cases, the verifications were held outside the home district. The people living in areas like char (River Island) suffered most.”
The jury also took note of the suicide cases as the fear of getting excluded from the NRC, being declared as foreigner and finally being sent to detention centre, has created a situation of permanent paranoia among the vulnerable communities, especially Bengal-origin Assamese Muslim and Bengali Hindus living in the state of Assam.
It also observed that “women and children have borne a higher burden in the course of the process. Since underage marriage is common in the region, women become voters only after marriage.” It underlined the loss of livelihood as a large number of poor and impoverished migrant labourers work at construction sites, as domestic help, or are involved in rag picking in various cities outside Assam who were required to return for the NRC process and were also subjected to its arbitrary mechanisms, their livelihoods have been severely affected.
The jury heard testimonies on the burdens placed on millions of impoverished and unlettered people:
• The burden of proof was shifted to the residents to prove that they were citizens,
• Documents related to birth, schooling and landownership, which impoverished and unlettered rural residents anywhere would find hard to muster, were insisted upon.
• Even when documents were produced, they were often refused for discrepancies, in the English-language spelling of Bengali names, or in age.
In its interim observations, the jury also warned the implications of extending the NRC to the rest of the country.
“The Central government has issued two notifications, both of which have the potential of increasing vulnerability. On 30th May 2019, the Ministry of Home Affairs issued an order that decentralized the power of establishing foreigners’ tribunals. Prior to this order, only the Central government could institute tribunals that had the jurisdiction to determine the citizenship of individuals under the Foreigners (Tribunals) Order, 1964.
“After 30th May, even the state government, Union territories (UT) administration, district collector or magistrate can exercise this power. Thus the order permits various levels of government to set up tribunals in every corner of the country. This order could foment social strife and alter India’s constitutional arrangements. Moreover, this order was passed without public debate or discussion in Parliament.”
In the second notification issued on July 31, 2019, the government instructed the Registrar General of India (RGI) to update the ‘National Population Register’ (NPR) from April to September 2020.
The Jury said, “The NPR notification must be seen in the context of other legal provisions, and the possibility of its abuse. Its three-stage process could allow collection and maintenance of sensitive and unprotected data and, possibly, be used to target vulnerable individuals and groups. The National Population Register also violates the right to privacy.”
Members of the jury said, “We worry because there are no signs of this crisis abating as a local border police constable can again, at any time, accuse them with being foreigners and refer their cases to a detention centre. Even after the final register, there are many demands for selective reverification.”
During the course of the proceedings, the jury heard about the circumstances creating and enabling the NRC process; and the role of the government and the Supreme Court in this exercise. The tribunal also took note of the Centre’s proposed Citizenship Amendment Bill, along with the Foreigners Tribunal Amendment Order, 2019, and the proposed extension of NRC and tribunals across the country.
The People’s Tribunal jury, besides retired Supreme Court judges, Justice Madan B Lokur, Justice Kurien Joseph and Justice A P Shah (retired Chief Justice of Delhi High Court), comprised Prof Faizan Mustafa (vice-chancellor of NALSAR University of Law) , Syeda Hamid (former member of Planning Commission), Deb Mukherjee (former ambassador to Bangladesh), Gita Hariharan (founder-member of Indian Writers’ Forum) and Prof Monirul Hussain (Chair Professor at the Centre for North East Studies and Policy Research at Jamia Millia Islamia).