The Spectre of Foreignness — Harsh Mander

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At the core of the systemic injustice of the NRC process is the reversal of the burden of proof. — photo: Indian Express

Harsh Mander

A tersely worded order of the Union Home Ministry, less than two pages long, carries the potential to alter India forever, to crush the fundamental rights of millions of the country’s most vulnerable people, and to subvert the edifice of India’s constitutional framework and to change the founding principles of the republic. This order, published in the Gazette of June 4, authorises any state government, Union Territory or district magistrate to establish foreigners’ tribunals in any part of the country. Up to now, this power was restricted to the Union government and applied exclusively to Assam.

This momentous order, which carries the potential to foment social strife and alter India’s constitutional arrangements was passed without any public debate, let alone a discussion in Parliament. The only explanation we have for this order so far, derives from Union Home Minister Amit Shah’s incendiary pledge, repeated in his election speeches, to extend the National Register of Citizens to all parts of the country, so as to identify and deport “infiltrators” (read undocumented Muslims) who threaten India’s security — unlike undocumented Hindus and Sikhs, who are refugees escaping persecution.

At the core of the systemic injustice of the NRC process is the reversal of the burden of proof. For most crimes, a person is innocent until the state prosecution is able to prove him guilty. But the burden of proving a person is a citizen is shifted from the state to her shoulders, and it is enough for a foreigners’ tribunal to conclude that she is a foreigner if she is unable to provide documents that satisfy this agency. It is significant that this reversal of the burden of proof was ordered by India’s highest court.

In Assam, the NRC has caused enormous suffering to millions of mostly poorly lettered and very impoverished people, who have squandered their meagre belongings to pay lawyers’ fees to help them negotiate the hostile and opaque maze of the NRC bureaucracy and the foreigners’ tribunals.

I have seen hundreds of cases in which a small difference in the English spelling of a Bengali name, or a small variation in age is enough for the NRC authorities and foreigners’ tribunals to sound the death-knell of “foreignness”. If you have never been to school, you may have no proof of birth or citizenship. If you own no land, you have no land records to prove your residence in India before the cut-off date. And even if you do own land, land records are notorious for their errors.

Imagine what will happen now with the home minister’s grand plan for extending both the NRC and the foreigners’ tribunals to the entire country. I already hear of Muslims in far corners of the country anxiously checking their documents, enquiring what they can do because the English spelling of the name of their grandfather differs from one document to the next. If in the coming months or years, the NRC is extended to other parts of the country, the upheaval and travails that this will foster will stir memories of the trauma of Partition.

The Home Ministry’s order also empowers the foreigners’ tribunals, which will be established anywhere in the country, to regulate their own procedures in hearing the cases placed before them. It further empowers them to hear an appeal only if they “find merit” in it. This means that a person whose name does not figure in the NRC cannot hope for a hearing from the foreigners’ tribunal if the agency feels there is no “merit” in her appeal. The experience of these tribunals in Assam has been that they frequently function with open bias or without due process. The latest order of the Home Ministry further empowers these tribunals to function in prejudiced or arbitrary ways.

The gravest violation of constitutional justice by the NRC process in Assam, which now threatens to imperil minorities across India, is that the Union government has not clarified what will be the fate of the people who are finally declared foreigners”. Neither the Supreme Court nor Parliament has compelled the Union government to clarify the destiny of possibly one to two million people, who practice Islam, in Assam if they are finally declared as “foreigners”?

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