~By Inderjit Badhwar
Our cover story focuses this week on what could be the biggest human rights issue the nation has faced since it gained Independence—the prospect of deportation hanging like the Sword of Damocles over the heads of some 40 lakh men, women and children. Their names have failed to appear on the first draft of Assam’s National Register of Citizens (NRC), rendering them, for the moment, stateless persons. There are endless horror stories about the way in which this census was carried out, its purpose being to weed out illegal immigrants, mostly from Bangladesh. But in the process, the babus and the politicians who conducted this exercise seem ready to throw the baby out with the bath water. Caught in the dragnet are Biharis, Gujaratis, Bengalis—a substantial number being Muslims—who, in case after documented case, find themselves or their wives, or brothers, or children, or relatives left out in the cold despite having proved their heritage and domicile through requisite papers, family records and evidence of land ownership over hundreds of years.
It is of little solace to them that the Supreme Court has taken note of this crisis, directing the central and state government not to take any coercive action on the basis of this draft as well as placing before the bench a standard operating procedure (SOP) to deal with claims, objections and appeals from the afflicted to contest their exclusion. Given the politically surcharged atmosphere in which the ruling BJP has been accused by the opposition of manipulating this census in order to deny citizenship to voters who are opposed to the party, thereby suppressing their participation in the electoral process, no quick end is in near sight. The shock, emotional trauma, insult to dignity of citizens, many of them lawyers, doctors, teachers, ex-servicemen, is immeasurable. The social tensions this continuing crisis could cause in other states across India, if it is viewed as a form of ethnic cleansing, could be incalculable.
Even in the best-case scenario—assuming there can ever be a perfect one—suppose that on a review of this original list, 30 lakh people are found to be legitimate Indian citizens. That still leaves out a whopping 10 lakhs. Will they be rounded up? Will they be deported to Bangladesh which has already expressed its unwillingness to take them back on the ground that this whole matter is India’s internal problem? Will they be put in detention camps in full view of the world’s democracies still reeling under the impact of the Syrian refugee crisis? Where would India find the place to create more such detention camps?
The BJP government is already reluctantly dealing with the Rohingya refugees, some 40,000 of whom are living in India in camps registered with the UN refugee agency. Despite the centre’s contention before the Supreme Court that the Rohingya influx is a potential threat to national and internal security, the Court directed the appointment of nodal officers whom parents, relatives, and guardians of Rohingyas could app-roach if children were being denied benefits in health and education. In October last year, the Supreme Court said the Rohingya refugee problem was of a “great magnitude” and the state would have to play a “big role” while dealing with the contentious issue. The direction was passed by a bench headed by Chief Justice Dipak Misra after the Court was informed that children of Rohingyas were being denied basic facilities.
Actually, the Court’s view is consistent with India’s constitutional and international obligations to adhere to the cardinal tenets of human rights—not just of citizens, but “persons”—within India. The government’s eagerness to deport 40,000 Rohingya refugees has been contained because the Supreme Court had agreed to hear a petition contending that the proposed deportation is in violation of the fundamental rights guaranteed under Article 14 and Article 21 of the Constitution, which ensure the right to equality and to life respectively. Even though India is not a signatory to the Refugee Convention, it is a party to the International Covenant on Civil and Political Rights, the Convention on the Elimination of all Forms of Discrimination against Women, and the Convention on the Rights of the Child. The deportation of the Rohingya refugees would not be consistent with the spirit of Article 51(c) of the Constitution, which calls on India to respect its international obligations.
So what exactly are the rights of illegal aliens, non-citizens, refugees, or even foreigners charged by the police with crimes? Do they have any protection under Indian laws? Alok Prasanna Kumar, Senior Fellow at the Vidhi Centre for Legal Policy, writes in The Hindu that during the Constituent Assembly debates, BR Ambedkar remarked that the provision relating to citizenship in the Constitution caused the Drafting Committee the most headache as multiple drafts were worked on and rejected over the years before the present Article 5 was settled upon.
“For good reason too,” writes Kumar. “As Vallabhbhai Patel had then said, India’s Constitution-making process, and especially its citizenship clause, was going to be scrutinised all over the world. As scholar Niraja Gopal Jayal has observed, this was probably because Indian nationalism during the freedom movement had not attempted to define itself on exclusive racial or ethnic bases.”
In fact, the Indian government is clearly on record stating that non-citizens in India enjoy virtually the same fundamental rights as citizens barring voting and equal right to employment. In the final report on the rights of non-citizens – (Summary of Comments Received from U.N. Member States to Special Rapporteur’s Questionnaire, U.N. Doc.E/CN.4/Sub.2/2003/23/Add. 4 (2003) India clarified:
“The following fundamental rights are available to non-citizens: right to equality; right of protection against punishment for retroactive laws, double jeopardy and self-incrimination; right of protection of life and liberty; right of protection against arrest and detention in certain cases; prohibition of employment of children in factories, mines and hazardous employment; and right to freedom of religion (Articles 14, 20, 21, 22 (1) and (2), 24 and 25, respectively). The above rights are accorded to non-citizens without exceptions.”
In a recent judgment, in response to the FIR registered by the Maharashtra government against three Ugandan citizens, including advisor to the president of Uganda, which was quashed by the Supreme Court, a vacation bench of Justices AK Patnaik and Ranjan Gogoi said: “Article 21 of the constitution [right to life and liberty] applies to all citizens, whether Indian or foreign nationals. Their right to liberty cannot be res-trained by police due to a business dispute. Our country gets a bad name because of the acts of few police officers, and it is unfortunate that the Mumbai Police, instead of protecting the rights of these foreign nationals, filed an FIR against them and the charges are baseless.”
In a previous article for India Legal during the Syrian refugee crisis and US President Donald Trump’s vicious campaign against refugees and illegal immigrants, I noted that it is ironical that in today’s world, which has been shaped by waves upon waves of human migrations over the millennia, “immigration” and “migrants” have become dirty words in the minds of millions of people across the globe. Thanks to the refugee crises stemming from conflicts in the Arab world and parts of Africa, outsiders pouring into different countries are considered a dangerous, polluting sub-human species unworthy of The Rights of Man which civilised democracies have held to be universal and valid at all times.
In characterising immigrants as a scourge, Trumpism in America and the alt-right in Europe have made the world forget that the act of migrating across borders as well as the interests of migrants—whether documented aliens or not—is actually governed by domestic statutes and international conventions under the rule of law.
This is only a natural corollary to the march of human civilisation which has been shaped culturally, linguistically, socially and ethnically by migrants who made their way to distant lands due to climate changes, pestilence, war, conquest, epidemics, persecution, forced deportations, ethnic cleansing, economic hardship, political partitions and the compulsions of technology.
Above all, the laws and conventions on refugees and immigrants are also based on humanitarian principles founded on historical experience. For example, had the Jews not kept perpetually migrating, starting with their expulsion by the Babylonians and Assyrians, and then the Romans and czars and Nazis, they would probably be extinct today. So would the Gypsies.
Actually, immigration is the true face of globalisation. Hence, world covenants such as UNESCO’s International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families which came into force in July 2003. Its primary objective is to protect migrant workers and their families, a particularly vulnerable population, from exploitation and the violation of their human rights.
“The Convention seeks to draw the attention of the international community to the dehumanization of migrant workers and members of their families, many of whom being deprived of their basic human rights. Indeed, legislation implementing other basic treaties in some States utilizes terminology covering citizens and/or residents, de jura excluding many migrants, especially those in irregular situations.”
In this context, it is worth studying India’s Law Commission’s 175th report (2000). It was in response to former Home Minister LK Advani’s concerns of millions of immigrants streaming into India across its eastern borders. It was, and still remains, a far more serious situation—a harbinger of communal violence, overcrowding, criminal activities and local job losses—than the entry of immigrants from Syria and Somalia into the US or Europe.
“The Commission is of the view that the problem of illegal migration from neighbouring countries has to be tackled seriously by providing a machinery for effective and speedy detection of illegal entrants. The function of determining whether a person is an illegal entrant or not is proposed to be entrusted to the Immigration Officers whose orders shall be appealable, to be heard and decided by an Immigration Tribunal, manned by a person who has been a District Judge or an Additional District Judge.
“The matters shall be decided by them according to the principles of natural justice. Besides, facilitation centers are also proposed to be provided for detaining the foreigners pending the determination of their status, and pending their deportation. So far as the offences under the Act are concerned, they are proposed to be tried by the Immigration Court which would be a court of District & Sessions Judge to be specified by the appropriate government in each district.”
The problem of legal and illegal immigration into India, especially West Bengal, and Assam, continues unabated. It is a politically volatile issue. But in tackling it, given the human dimensions of the predicament, the government’s action must be tempered by legal due process. As Kumar concludes: “Seventy years (after Independence) India’s approach to citizenship is once again going to be scrutinised by the world. The subcontinent has seen multiple, large-scale humanitarian crises erupt over questions of nationhood, citizenship and identity. One hopes the Supreme Court has the good sense not to spark off yet another for no apparent reason.”