By P.K.Balachandran/South Asian Monitor
“Moderkonobashanai, Moderkonodeshnai…. Moderkonodishanai, moderkonodyashnai” (We have no language, we have no residence, we have no village, we have no direction, we have no country) – a Bengali folk song by Abbasuddin.
That song captures the widespread anguish among Bengali Muslims of the Eastern Indian State of Assam, where attempts have been made to push the community out, by a combination of legal and violent means, since 1979.
The National Register of Citizens (NRC) is the current process of identifying and weeding out “illegal immigrants” and it isalso the most systematic one to date.But the two “draft lists”of the NRC done under Supreme Court monitoring, namely those of December 2017 and July 2018, have sent a chill down the spine of all non-Assamese communities in the State, though the worst affected are Bengali Muslims who tend to be routinely linked to neighboring Bangladesh.
Decrease In Numbers
However, in the midst of gloom, there is a silver lining. In every draft of the NRC so far, the number of people deemed to be “illegal immigrants” has decreased.
In the “first draft list” put up at the end of 2017, 19 million out of the 32.9 million applicants were found to be eligible to be citizens.In other words, 14 million were left out of the list and were therefore potential “illegals”.But in the July 2018 “second draft list” 29 million were in, and 4 million were out, which is a big number by itself.
But further reduction of any significance cannot be expected between now and December 31, 2018, when the final list will be out. This is because there are only four months to go for the release of the final list.
NRC’s Tough Criteria
The NRC’s criteria are very tough to meet. It is extremely difficult for the poor immigrants or even NGOs to fight cases against branding people as “illegal immigrants” given the “foolproof” system worked out to draw up the NRC and the high decibel politicization of the issue in Assam and, increasingly, in India as a whole.
Political parties, including the BJP and the Congress, support the NRC either to tout or prove their nationalistic credentials and also their concern for the Assamese Hindus who are the single biggest political constituency in Assam. In fact, it was the Congress which first pledged to ‘cleanse’ Assam of illegal immigrants from Bangladesh by signing the “Assam Accord” with Assamese community leaders in 1985.
Communal discrimination affects the issue of citizenship. While the population, political parties, the State apparatus and the legal institutions have been soft and sympathetic towards Hindu and Buddhist migrants, they have been intolerant towards the Muslims.
The Supreme Court has been sympathetic to the claims for citizenship made by the Buddhist Chakmas from the Chittagong Hill Tracts in East Pakistan/Bangladesh. In 2016 the Narendra Modi government introduced a bill to amend the Citizenship Act of 1955 to make illegal migrants who are Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan, eligible for citizenship. Significantly, Muslims were left out.
However, Indian courts have been a moderating influence at times. In the case of the Muslim Rohingya refugees from Myamnar, the Supreme Court insisted the government justify its demand to throw them out and ordered that, in the meanwhile, government should provide them with all amenities.
How Hindus Got Into the Net
If many Hindus are also aggrieved by the NRC now, it is because the procedure applies to all, citizens as well as non-citizens. Irrespective of religion, linguistic affiliation, or previous citizenship, everyone living in Assam has to show documentary proof of his or her residence in the State prior to March 24, 1971. Many Bengali Hindus, Biharis, Nepalese, and others from outside Assam are thus in danger of losing their citizenship or claim to citizenship.
Veteran Assamese journalist, Sanjoy Hazarika, points out that even a slight discrepancy in spelling or the absence of a document could lead to rejection of an application. The worst affected are the poor who are hard put to it to submit all the documents demanded for the “fool proof’ NRC system
Illegal immigrants or those accused of being illegal immigrants have no legal protection in India. Whatever protection the “illegal migrants” had under the Illegal Migrants (Determination by Tribunal) Act of 1983 (IMDT Act), was taken away in 2005, when the Supreme Court struck the act down on a petition filed by Sarbananda Sonowal, who is currently Chief Minister of Assam ruled by the Hindu nationalist Bharatiya Janata Party (BJP).
Passed when the progressive minded Indira Gandhi was Prime Minister, the IMDT Act of 1983 had placed the burden of proving non-citizenship on the accuser and the police, not the accused. This was a major departure from the provisions of the Foreigners Act of 1946.
The 1983 act had stipulated that the accuser should reside within a 3 km radius of the accused. If a suspected illegal migrant was successfully accused, he or she could still prove Indian citizenship by simply producing a “ration (food) card” issued by the government. There was also a system of tribunals made up of retired judges to finally decide on deportation.
The 1983 act had excluded migrants who entered India before March 25, 1971 from illegal-migration accusations. And for post-1971 migrants too, the procedure for deportation was tough.
While axing the act, the Supreme Court said that the conviction rate under it had been less than 0.5% of the cases initiated. This was to the advantage of illegal migrants as any proceedings initiated against them almost entirely ended in their favor,it said.
Danger of Becoming Stateless
Hundreds of thousands are in danger of becoming “Stateless” given the fact that Bangladesh, from where the “illegal immigrants” had allegedly come, is not going to accept them unless their Bangladesh citizenship is proved, which, as past experience shows, is possible only in a few hundred cases.
Charlotte-Anne Malischewski and Shuvro Prosun Sarker in their papers done for the Mahanirban Calcutta Research Group (http://www.mcrg.ac.in/PP60.pdf) in 2014, say that being categorized as “illegal migrants” places “Stateless” people in India in a “precarious position.”
There are UN conventions on Statelessness, but India has not acceded, ratified, adopted or signed them. It is, therefore, necessary for India to consider alternative protection systems for Stateless persons under the human rights covenants signed by it, such as the International Convention for the Protection of Civil and Political Rights (ICCPR), the authors say.
India has Stateless persons like the Tibetan, Afghan and Sri Lankan Tamils, but they manage to survive because the surrounding populations and the State are sympathetic to their plight and allow them to break the law to stay, avail of facilities and take jobs or ply trades. If not allowed, they bribe their way through.
But Bengali Muslims will find it difficult to find acceptance given the fear of Islamic radicalism, which is said to have struck roots in Bangladesh. The hapless Rohingya Muslims were about to be expelled because of a perceived threat to national security from them.
However, unofficial acceptance of refugees is no way of going about managing Statelessness, says Sarker. In the absence of accession to the Refugee and Statelessness Conventions, the refugees should be governed by the provisions in the International Covenant on Civil and Political Rights (ICCPR) which India has ratified, he says.
The ICCPR does not allow discrimination between citizens and aliens. And refoulement or the forcible expulsion of refugees is considered to be against International Law.
Since India has been impervious to criticism from the UN and other human rights groups, it is likely that it will allow the NRC to create millions of Stateless people and let them fend for themselves in the country without any recognized rights and be exploited by unscrupulous elements.
Sri Lanka had made one million Indian settlers Stateless through its citizenship law in 1948. But when India refused to take them back, Sri Lanka allowed the Stateless to stay on and work but without civic rights. It took several rounds of talks between Sri Lanka and India and political bargaining at home to acquire Indian or Sri Lankan citizenship.