On the NRC, Even the Supreme Court is Helpless

It may be time to finally acknowledge it. The ‘National Register of Citizens’ (NRC) and the Supreme Court’s initiative running it are facing an imminent crisis. The process is already threatening to render 1 million people stateless without any semblance of a subsequent plan. The future of 3 more million remains precarious, as they face months – if not years – in tribunals and courts, struggling to establish their citizenship.

It is not just the scale. Institutionally, the Supreme Court has managed to place itself in a politically divisive and legally uncomfortable position. Despite perhaps its best hopes, NRC is looking less like a respectable legal closure to decades of immigration conflict and more like an unending tunnel threatening to spill over to the other states in a climate of increasing religious and ethnic polarisation.

Procedural hurdles

The final draft of the updated NRC that was published on July 30, 2018 had left out around 40 lakh people. Since then, the Supreme Court has had to continuously reckon with the magnitude of the exercise, leading it to extend the claims and objections process multiple times.

Also Read: Narendra Modi: No Genuine Citizen Will Be Left Out of NRC in Assam

By the end of the second extension on December 15, 2018, less than 15 lakh people had managed to file fresh claims, leaving 25 lakh on the verge of statelessness. Even the third extension to December 31, 2018 has not proved the claims process to be substantially inclusive. Reports suggest that as many as 10 lakh people were unable to file claims.

The reason is becoming evident. In December 2018, the Assam government conceded in the court that many of those who had failed to participate in the claims process were illiterate and poor and hence unable to fill out the forms they may have found to be too complicated. Add to this the fact that poorer communities are less likely to have documentary identification to start with, finding it harder to procure them.

To make matters worse, the legal process ended up only enhancing the obscurity of the bureaucratic machinery. The court regularly revised the list of documents that individuals could file to establish their citizenship. These determinations were deeply controversial, often leading to confusion and agony among the vulnerable.

We may be inclined to excuse the NRC each of the above as inevitable in any ambitious bureaucratic exercise. Some amount of legal uncertainty and inefficiency are bound to be present. We may be told that the supervision of the court has ensured – and will continue to ensure – a judicious determination of logistical and evidentiary questions. But this rather self assured reliance on the legal process is a mistake and overlooks the deeper paradoxes of the court-led process.

The paradoxical basis of judicial supervision

The Supreme Court initiated the NRC update in earnest on December 17, 2014, through an order in the case of Assam Sanmilita Mahasangha v Union of India. The Mahasangha had challenged section 6A of the Citizenship Act that had been enacted to give effect to the Assam Accord by providing separate rules of citizenship in the state.

Under the provision, in contrast with the other states, the migrants of Indian origin who settled in Assam before March 25, 1971 could qualify either as Indian citizens or for a route to citizenship. In its petition, the Mahasangha argued that the provision violated the right to life of the citizens in the state by encouraging the “massive influx of illegal migrants” from Bangladesh. It also argued that the distinct regime compromised their right to culture as guaranteed by the Constitution.

A sympathetic bench – consisting of Justice (now Chief Justice) Ranjan Gogoi and Justice R.F. Nariman – recommended that the issue be referred to a larger constitutional bench for final determination. In doing so, the bench raised a serious question on the constitutional validity of section 6A. But in the same order, the bench also decided to commence supervising the NRC update, on a court-determined calendar, based precisely on the requirements under section 6A.

The Supreme Court initiated one of the most ambitious judiciary-led bureaucratic exercises in the history of the country on the basis of the rules whose legal validity it is yet to determine! This paradox, which appears to have been completely overlooked in the current discussions of NRC, raises uncomfortable questions for the judicial process.

Should it not have been more prudent for the court to wait for the final legal assessment of section 6A? Has the NRC process made the court’s future constitutional bench reference superfluous? Or will it finally hearing the reference make the NRC process superfluous?

The chimera of numbers

The uncomfortable contradictions do not end here.

The Supreme Court’s involvement in the Assam immigration controversy before and during the NRC update has been based on the anxiety, even paranoia about the scale of undocumented immigration from Bangladesh.

Writing for a three-judge bench, Justice G.P. Mathur struck down parts of the Illegal Migrants (Determination by Tribunal) (IMDT) Act in its 2005 Sarbananda Sonowal judgment and placed the burden of proving citizenship on individuals rather than the state, based on the “silent and invidious demographic invasion of Assam”.

Also Read: 31 Lakh People Left out of NRC Final Draft File Claims

The bench took the various affidavits filed by the government on face value. It observed that “large scale illegal migration” not only amounted to infiltration, but also was a form of “external aggression” leading to internal disturbance. The court voiced fears of “rapid growth of international Islamic fundamentalism” and territorial succession.

This was not merely rhetorical. The extent and scale of the “dangerous” undocumented migration was a legal ground in the case. Justice Mathur held that the IMDT Act had resulted in the detection of foreigners far lesser than their actual numbers demanded and the Centre was failing in its constitutional duty under Article 355 to protect its citizens against external aggression and internal disturbance.

But what was the evidence that the IMDT Act was inadequate?

While Justice Mathur accepted that it might not be possible to gather completely accurate data on undocumented Bangladeshi immigrants in Assam, it relied on a 2004 home ministry statement filed in the parliament that indicated the number to be 50 lakh.

These dramatic numbers, amounting almost to one-fifth of Assam’s population, appeared to convince the court that the substantially lower detection of 10,015 persons under the IMDT Act were completely inadequate. In the Mahasangha case, Justice Nariman relied precisely on this to infer that the political branches were doing “precious little” to deal with undocumented immigration, necessitating an active role for the courts.

But the problem is that there was no data on any of this. As a recent article based on an RTI query shows, soon after submitting the statement in 2004, the home ministry offered a clarification that the numbers were “not based on any comprehensive or sample study,” and worse still, “were based on hearsay and that too from interested parties”. The clarification stated that “no realistic figures can be given for illegal Bangladeshi migrants in Assam”.

These faulty numbers have offered a potentially inflated picture of the immigration problem. During the update of the NRC, they became the standard for its success. For many in Assam, even 40 lakh is too few. Everyone now is chasing the chimera of non-existent numbers.

Unprecedented ‘legal’ proceedings

Since December 2014, the Supreme Court bench of Justice Gogoi and Justice Nariman took up regular hearings to supervise the NRC update, entertain requests for extensions and decide which documents could be admitted as evidence of citizenship. While the court’s involvement may have accelerated the process of updating the NRC, it has disconcertingly introduced further opacity and unaccountability.

In our system of governance, courts are ordinarily meant to provide a much-needed counter to executive and legislative power. With the Supreme Court “supervising” the NRC, there has been a complete absence of inter-institutional legal accountability. On the ground, the process has operated with a newfound legal legitimacy as some kind of super-executive. The NRC administrators are not accountable to the judiciary as much as backed it.

Also Read: Seventy Assam Orgs to Move SC Against Centre’s Notifications on Citizenship Rules

The Court has regularly invited the NRC coordinator to submit reports under sealed covers. These reports have been kept hidden from the state and the affected persons. With the legal process having moved to New Delhi, the aggrieved persons, who may have anyway found it hard to approach the courts, have found judicial review to be practically impossible.

A helpless court?

Paradoxically, while the Supreme Court may appear to be an exceedingly powerful institution from one perspective, it is hopelessly powerless from another. Since its active involvement, the court has been demanding that the government diplomatically engage with Bangladesh to “streamline the procedure of deportation”.

Inside and outside the court, the government has insisted that it is planning to take up the issue of deportation of these detainees with Bangladesh. But official reports do not verify this. In fact, Bangladeshi state officials have consistently confirmed that the Indian government has not raised this issue with them at all.

In these conditions, there is barely anything the court can do to twist the arm of the state to frame an adequate international agreement. The only inevitable consequence of the NRC process will be the declaration of millions as stateless.

Under existing policy, illegal migrants are liable to be arrested and detained. At present, half a dozen detention centres are in operation across Assam, housing persons declared to be foreigners by tribunals.

As reported by the special monitor of NHRC, who visited them in January 2018, these detention centres – housing hundreds of women, children and men – exist within jail compounds in absence of any clear domestic legal standards and in violation of many international human rights standards.

The state’s response has only been to promise investing more in detention centres. But the proliferation of detention centres across the length and breadth of Assam cannot possibly be a meaningful response. In the absence of a political resolution, millions of people – women, children and families – will be rendered captive in perpetuity. Should we be surprised that even the possibility of being left out of the NRC draft had pushed people in Assam to suicide?

This has severe economic, and more importantly, moral costs. Are Indian citizens ready to bear the monetary burden of maintaining families in detention centres for perpetuity? Are they ready to carry the ethical burden of maintaining concentration camp-like conditions next to their cities and villages? It is baffling that neither the court nor the large Indian administrative machinery has come to terms with the inevitable tragedy that the conclusion of the NRC offers us.

The overbearing politics of citizenship

Through all this, the court has placed itself right in the middle of a politically divisive position that threatens to slowly erode its legitimacy. When the court stepped in to operationalise the NRC, there was a wide based support for the process. Perhaps this was the basis of the Court’s assumption that the only obstacle was the bickering among political parties. A judiciary-led bureaucratic process was meant to deliver the goods and finally resolve the long-standing controversy.

This hope has unraveled partly because of reasons internal to NRC, as increasing number of people, depending on their constituencies, have found the NRC process wanting. They have either found it biased against minorities or indulgent of them for not being aggressive enough.

Overt hope in the legal process had also ignored the fact that NRC exists in a political ecosystem that the court cannot control. While the role of political parties in operating the process has diminished, they have not been reluctant to continue politicising the issue.

Also Read: Today’s Assam Looks More and More Like the Violent 1980s

Some sections of the BJP have started insisting on extending the NRC outside Assam, raising deep concerns for social order across the country. The Centre’s enthusiasm for the Citizenship Amendment Bill, which provides citizenship to non-Muslim “illegal migrants”, has not helped matters. The proposed amendment challenges the promise offered by the court-led NRC that an objective application of citizenship rules would resolve a political controversy. Politically, it has kindled deep misgivings among Assamese speakers, threatening the peace that the NRC had momentarily bought in the state.

The appearance of legal process and formality will not extricate NRC from its context and consequences. There is an urgent need, particularly on the part of the Supreme Court, to recognise this and offer a more humane and inclusive conclusion to a process that is inching towards a tragedy.

Mohsin Alam Bhat is an assistant professor of law and the executive-director of the Centre for Public Interest Law at Jindal Global Law School.