Contesting citizenship vis-à-vis NRC

Session 5.2 of CRCLP began with the introduction given by Gunsimran of fourth year. She introduced the controversial topic of NRC which is associated with the state of Assam. She also highlighted the issue of illegal migrants in context of Mexico and Venezuela and how they adversely affect the resources of a country particularly a developing country.

The First speaker Ankit Mallik from fourth year elucidated upon the Illegal Migrants (determination by tribunal) Act, 1983. Firstly he unfolded the reasons of why this act was required, by dwelling upon the 1971 Bangladesh war of Independence and the influx of illegal migrants from Bangladesh to Assam due to violence. He elaborated on how the issue of illegal migrants arose in Assam. It was when the by poll elections took place at Mangaldoi in Assam in the year 1978 in which the illegal migrants were also incorporated. This led to a series of protests in Assam by the All Assam Students Union (AASU) and All Asom Gana Sangram Parishad (AAGSP) which later resulted in the signing of Assam Accord in 1985.

Before the Assam accord came into being the IMDT act was already passed, which diluted the application of Foreigners Act, 1946, which was applicable in India as whole. He then enumerated the objective of IMDT which is the identification and deportation of illegal migrants. However, the applicability of the act only extended to the state of Assam. Ankit then discussed the criteria to be fulfilled for being designated as an illegal migrant and for that a person should have entered India after 25th March, 1971 without any valid documentation and he/she must be a foreigner. Here a question was raised by Diksha from the 2nd year, as to why was the date prescribed as March 25th? Ankit answered that India recognised the Bangladesh war of Independence from March 25th and thus, this date was prescribed. He then dealt with the drawbacks of the act due to which the number of illegal migrants who were deported was reduced from 3 Lakhs in 1962- 1984 to 7,854 after 1984. The act proved to be less effective due to the faulty onus of proof which was upon the prosecution, the cumbersome procedure and the lack of powers given to the police under this act to search, leading to untraceability. Ankit ended his part by informing that the act was declared unconstitutional in the case of Sarbananda Sonowal v. Union of India (2005).

The Second speaker was Mayank from the third year, who dealt with mainly with the Assam Accord. He spoke that the Assam Accord which was signed due to the protests against the illegal migrants had three parties including AASU, AAGSP and the Government of India. He elucidated the major points given under the accord, which included giving a citizenship status to the person who were born in India before 1966, giving a status of disenfranchisement(excluding from the voter list) to those people who came to India within 1966- 1971 and identifying and deporting the people who came after 25th March 1971. Increasing international border security within the state, debarring illegal migrants from purchasing property in the state along with other provisions were provided in the accord. Mayank also mentioned the negotiations made by protestors with the government, under which AASU and AAGSP promised that they would stop protesting in but in return the government would remove the complaints against the public officials for protests and also assist the jute mills to revive.

The next speaker Ananya Sharma from the fifth year enlightened the students with the importance of the census of 1951 as the NRC is formulated on its basis. She mainly discussed the constitutional validity of IMDT ACT and Section 6A of the Citizenship act, 1955 with the help of two cases and two doctrines namely, the doctrine of Separation of Powers and doctrine of Refoulement.

She explained that in the case of Sarbananda Sonowal v. Union of India (2005) a writ petition was filed under Article 32 challenging the validity of IMDT act contending that differentiating people on the basis of they entered in India would be violative of Article 14 and that the IMDT act and the Foreigner’s act cannot be applied harmoniously. But the respondents contended that right under Article 21 which is even provided to the illegal migrants would be violated if the onus of proof is on them, natural justice would not prevail. Here the Court held that under Article 355 of the constitution the state is under a duty to protect its citizens from internal disturbance and external aggression and that there prevails a situation of external aggression due to influx of illegal migrants and thus IMDT was declared invalid as a result of which the onus of proof shifted. The court also declared that judiciary has no power to make laws as per the Doctrine of separation of powers. 

She explained to the students that a case was filed in the Supreme Court by the name of Assam Public Works vs. Union of India (2009) to a two judge bench (Justice Gogoi & Nariman), where two questions arose, namely-

1.      Whether the term ‘born in India’ applies only to the children born to Indian citizens or does it also apply to the child, one of whose parent is an Indian citizen and the other is an illegal migrant?

2.      Is section 6A constitutionally valid?

Although the matter was referred to the constitutional bench, the court gave a temporary order stating that the government can form modalities to update NRC as 4A the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003 gives this power to the government. The crucial issue was highlighted by Ananya that the constitutional bench (consisting of Chief Justice Ranjan Gogoi & Justice Nariman) even though formed has not yet decided the validity of Section 6A on the basis of which NRC is being updated and that the constitutional bench consists of the same judges who had given the earlier decision.

She also highlighted the importance of doctrine of non Refoulement in the international platform, which states that forbids a country receiving asylum seekers from returning them to a country in which they would be in likely danger of persecution based on “race, religion, nationality, membership of a particular social group or political opinion” and that how NRC contradicts it.

Gunsimran concluded the session by making the students aware of the archaic situation which exists in Assam as 19 lakh people are excluded from NRC and also that the citizenship amendment bill, 2016 states that any illegal migrant coming from Pakistan, Afghanistan and Bangladesh who is not a hindu, sikh, buddhist or jain will be deported. She left the students with a question to be researched upon, whether the amendment bill, 2016 would be violative of Article 14 or not? This is how the session ended, this session overall, was a very informative session and gave the students several points to ponder over.

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