{"id":4968,"date":"2020-08-10T11:22:54","date_gmt":"2020-08-10T11:22:54","guid":{"rendered":"https:\/\/blogs.lse.ac.uk\/humanrights\/?p=2267"},"modified":"2020-08-10T11:22:54","modified_gmt":"2020-08-10T11:22:54","slug":"the-national-register-of-citizens-and-indias-commitment-deficit-to-international-law","status":"publish","type":"post","link":"https:\/\/radiofree.asia\/2020\/08\/10\/the-national-register-of-citizens-and-indias-commitment-deficit-to-international-law\/","title":{"rendered":"The National Register of Citizens and India\u2019s commitment deficit to international law"},"content":{"rendered":"

The National Register of Citizens (NRC) is an exercise by the Indian government to recognise and expel illegal immigrants pursuant to Section 14A of the Citizenship Act, 1955<\/a>\u00a0read with the Foreigners Act, 1946<\/a>. The government implemented the NRC in the north-eastern state of Assam, bordering Bangladesh. The recently-published UN World Migration Report 2020<\/a> has identified this border as one of the most vulnerable migrant corridors in Asia, given the historical fluidity of its boundaries. In Assam, international borders are young and divide ethnically similar societies owing to the long history of territory exchange agreements<\/a>\u00a0between India and Bangladesh and the legal migration of refugees<\/a> in the aftermath of the Indo-Pakistani War of 1971. Therefore, the porosity of established migrant categories must be acknowledged and preserved by the State. Instead, in 2018, the government screened 32.9 million people and 65 million documents<\/a>, costing the taxpayer $178 million and labeled 40,70,707 people<\/a> as illegal residents. In 2019, the government revised and released<\/a>\u00a0the final list of the NRC, excluding nearly 2 million people<\/a> – approximately 6% of Assam\u2019s population – effectively rendering them stateless.<\/p>\n

According to Section 2 of the Foreigners Act<\/a>: \u201cA foreigner means a person who is not a citizen of India\u201d. And according to Section 9<\/a>, the burden of proof lies with the person suspected to be a foreigner, to provide documentary evidence proving their citizenship. Those excluded must appeal to the Foreigners Tribunals, implying that the State already treats them as non-citizens. \u201cForeigners\u201d are required to prove their citizenship by providing legacy documents<\/a> proving permanent Indian residency, failing which they will be stateless.<\/p>\n

In the absence of domestic legislation on the legal status of refugees, India\u2019s internal refugee management system is fraught with serious issues \u2014 principally because essential conventions such as the Convention Relating to the Status of Stateless Persons, 1954<\/a>\u00a0and the Convention on the\u00a0 Reduction of Statelessness, 1961<\/a>\u00a0have not been used as reference points for the methodical detection, reduction and prevention of statelessness \u2014 as made evident by the inhuman fallout of the NRC. Therefore, India suffers from a pernicious commitment deficit to international law.<\/p>\n

NRC: Institutionalising Exclusion<\/strong><\/p>\n

The very idea of the NRC, with its fundamental premise rooted in the insider-outsider<\/a> binary has led to the institutionalization of exclusion<\/a>. The NRC in all its arbitrariness and unfairness has imposed a palpable anxiousness<\/a>\u00a0on the entire region. Contrary to the principles of natural justice, the categorization of citizenship status considers every resident of Assam guilty until proven innocent<\/a>. To prove their citizenship, some had to sell personal property such as livestock to cover great distances in order to file their papers with the authorities located at far off registration offices. Reports<\/a> suggest that Foreigners Tribunals in the state of Assam have been denying people their citizenship arbitrarily and suffer from a perilous shortage of qualified judicial officers, some of whom are recruited on a temporary basis and trained for only four days. The apprehension and trauma of exclusion suffered by the entirety of the Assamese population of 32.9 million, amounts to the persecution of genuine Indian citizens.<\/p>\n

The Gendered Impact<\/strong><\/p>\n

While the NRC has adversely affected the lives of marginalised populations in Assam, the demographics of exclusion suggest that women and children across the state of Assam, have suffered disproportionately<\/a> due to India\u2019s commitment deficit to international law. This becomes starkly evident in cases<\/a> where children have been excluded from the NRC, but their parents admitted. These children live under a blanket of suspicion and stigmatisation.<\/p>\n

The NRC affects women disproportionately for two interrelated reasons. First, the evidentiary value of proof of citizenship is tilted highly in favour of patrilineal documents<\/a>, therefore women who trace their identity matrilineally are invariably excluded. Secondly, in a region like Assam where underage marriage <\/a>and polygamy are common, the documents often only have the\u00a0 husbands\u2019 names on them. The identities of most women are entwined with that of their husbands, and they thus end up as appendages to male citizens rather than citizens themselves. The NRC process has also separated thousands of women<\/a> from their families. These include daughters, sisters and wives who have been arbitrarily left out of the list due to trivial reasons such as typographical errors<\/a>. Women in the region rarely enjoy financial independence and are dependent on their families for survival; the fragmentation of families has therefore resulted in widely uncertain futures for them.<\/p>\n

Article 326<\/a> of the Constitution states\u00a0 that voting rights are available only to citizens. Those excluded from the list shall be categorised as \u2018D\u2019 (doubtful) voters<\/a>, stripping them of their right to vote. Therefore, the NRC is creating a nation of disenfranchised women, lacking the most basic of human rights that emanate from the right to citizenship. Indeed, the recognition of women as legitimate citizens with lawful rights is only the first step on the long road towards gender equality.<\/p>\n

All democratic states must grant women equal rights to acquire, change or retain their nationality. The Indian state, in its handling of the NRC process, has been oblivious to certain inalienable rights guaranteed by fundamental international instruments. For example, Articles 1 and 2 of The Convention on Nationality of Married Women<\/a>\u00a0along with Article 9 of CEDAW<\/a>, encourage states to provide equality between men and women in matters of citizenship and the right to pass on nationality to children. These conventions are a cornerstone in preventing statelessness as a direct result of gender-based discrimination in the bestowal of nationality, but were disregarded in the government\u2019s implementation of the NRC.<\/p>\n

The Perpetuation of Statelessness<\/strong><\/p>\n

The UNHCR guidelines<\/a> state that children are often stateless if their parents are stateless; such perpetuation can be curbed if a country in which a child is born grants its citizenship to this child, even if their parent(s) may be stateless. Contrary to incorporating the spirit of jus soli<\/em>, Section 3(1)(c)<\/a> of the 1955 Citizenship Act denies or confers citizenship to the child based on the citizenship of the parent; children born in India thus cannot secure Indian citizenship if at least one of their parents is not an Indian citizen. Given the exclusionary pattern of the NRC, this prerequisite has the potential to create statelessness in Assam by the mere operation of law.<\/p>\n

Children are the most vulnerable to this exclusion, since the denial of nationality from birth subjects them to a cycle of extreme poverty without basic human rights or opportunities. The UDHR<\/a> sets a common standard of achievement for all people of all nations, wherein Article 15<\/a> creates a negative duty on the state not to create statelessness. Article 24 of the ICCPR<\/a> states categorically that every child has the right to acquire a nationality. This is supplemented by Article 8 of the CRC<\/a>, that obliges the state parties to accord the right to every child to acquire nationality in his or her country of birth. Moreover, the determination of citizenship through lineage is inherently exclusionary in a country where, according to UNICEF<\/a>, about 40% of urban births and 65% of rural births are unregistered, despite an obligation under Article 7 of the CRC to register all births.<\/p>\n

Beyond subjecting children to a cycle of statelessness, the NRC has also deprived them of essential parental care. Children have been forcefully separated<\/a> from their parents who are held in detention centres, in violation of Article 9 of the CRC. There is no statutory limitation on the period of detention under Section 3 of the Foreigners Act and most of these centres are in derelict conditions<\/a> and provide no opportunity for the child to establish any personal contact with their parent(s), as mandated under Article 9. Although the law provides for non-custodial alternatives, the Government of Assam in a white paper<\/a> expressed its predilection toward the use of detention as the preferred means. This has resulted in the dehumanisation of the millions excluded from the NRC.<\/p>\n

Conclusion<\/strong><\/p>\n

Hannah Arendt<\/a> has aptly described the plight \u00a0of refugees, being transformed from homeless to stateless and ultimately, right-less. This rings particularly true in the context of the NRC, through which all Assam residents have been deemed illegal citizens and burdened with the obligation to prove their nationality beyond reasonable doubt. Persecution of genuine Indian citizens, who suffer the trauma of exclusion, is a direct breach of the rule of law. If states remain unwilling to honour their international commitments, the judiciary must display exemplary constitutional courage in reviving India\u2019s civilizational heritage of inclusiveness and uphold the country\u2019s obligation to foster respect for international law under Article 51(c)<\/a> of its Constitution (36), thereby remedying its catastrophic \u2018commitment deficit\u2019 to the established and unalienable principles of international law.<\/p>\n

 <\/p>\n

References<\/strong><\/p>\n

The Citizenship Act, 1955. Available at: https:\/\/indiacode.nic.in\/bitstream\/123456789\/1522\/1\/a1955-57.pdf<\/a><\/p>\n

The Foreigners Act, 1946. Available at:\u00a0https:\/\/indiacode.nic.in\/bitstream\/123456789\/2259\/3\/A1946-31.pdf<\/a>><\/p>\n

U.N. World Migration Report, 2020. Available at: https:\/\/www.un.org\/sites\/un2.un.org\/files\/wmr_2020.pdf<\/a><\/p>\n

Ministry of External Affairs, India and Bangladesh Land Boundary Agreement<\/em>. Available at:\u00a0https:\/\/mea.gov.in\/Uploads\/PublicationDocs\/24529_LBA_MEA_Booklet_final.pdf<\/a><\/p>\n

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4 Million Indian Citizens Could Be Made Stateless Tomorrow. Here\u2019s What to Know<\/em>, TIME. Available at:\u00a0https:\/\/time.com\/5665262\/india-national-register-of-citizens-stateless-assam\/<\/a><\/p>\n

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Assam NRC: What next for 1.9 million ‘stateless’ Indians?<\/em>, BBC News. Available at:\u00a0https:\/\/www.bbc.com\/news\/world-asia-india-49520593<\/a><\/p>\n

Determination of Citizenship through Lineage in the Assam NRC Is Inherently Exclusionary<\/em>, Economic and Political Weekly Engage. Available at:\u00a0https:\/\/www.epw.in\/engage\/article\/determination-citizenship-through-lineage-assam-nrc-exclusionary<\/a><\/p>\n

The Convention relating to the Status of Stateless Persons, 1954. Available at: https:\/\/www.unhcr.org\/ibelong\/wp-content\/uploads\/1954-Convention-relating-to-the-Status-of-Stateless-Persons_ENG.pdf<\/a><\/p>\n

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Children out, parents in: The real challenge begins now that final Assam NRC is here, <\/em>The Print. Available at:\u00a0https:\/\/theprint.in\/opinion\/children-out-parents-in-the-real-challenge-begins-now-that-final-assam-nrc-is-here\/284862\/<\/a><\/p>\n

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This post was originally published on LSE Human Rights<\/a>. <\/p>","protected":false},"excerpt":{"rendered":"

The National Register of Citizens (NRC) is an exercise by the Indian government to recognise and expel illegal immigrants pursuant to Section 14A of the Citizenship Act, 1955\u00a0read with the Foreigners Act, 1946. The government implemented the NRC in the north-eastern state of Assam, bordering Bangladesh. The recently-published UN World Migration Report 2020 has identified \u2026 Continued<\/a><\/p>\n","protected":false},"author":439,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[640,242],"tags":[],"_links":{"self":[{"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/posts\/4968"}],"collection":[{"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/users\/439"}],"replies":[{"embeddable":true,"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/comments?post=4968"}],"version-history":[{"count":1,"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/posts\/4968\/revisions"}],"predecessor-version":[{"id":4969,"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/posts\/4968\/revisions\/4969"}],"wp:attachment":[{"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/media?parent=4968"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/categories?post=4968"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/tags?post=4968"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}