While the entire country and its media are busy dissecting the legality of the abrogation of Article 370 in Kashmir, another part of India is being ripped apart on the basis of ancestry and citizenship troubles. Actually, if one looks at it, Kashmir and National Register of Citizens (NRC) in Assam lie at the two extreme ends of the ‘Idea of India’, both in territorial and metaphorical terms, where that idea is being mutilated everyday.
While the Kashmiris have been asking for their right to self-determination to be respected in accordance with the historical commitments made to them, the process of NRC has exposed the decades’ old faultlines of ethnicity and religion, wherein people living in different parts of Assam for over generations, including those born in India, are being stripped off their citizenship rights, designated as ‘foreigners’, and dragged to Foreigners Tribunal for years.
In this context, the question to be asked is—what does ‘nation’ mean, and who is a ‘citizen’ of this country? When India unconstitutionally annexed Kashmir by abrogating Article 370 of the Constitution on 5th August, 2019, and sought to impose its ‘nationhood’ on millions of Kashmiris through a total communication blackout for over two weeks, does that make all Kashmiris part of India?
Or when the final National Register of Citizens is published on 31st August, 2019, with more than 40 lakh individuals residing in India find their names excluded from the NRC, and thus facing long years of incarceration in the detention centres while fighting to prove that they are citizens of this country, do they stop believing and feeling like Indians?
How can we forcibly integrate one set of people into India, while ignoring their claims of self-determination, and in the same breath, deny another set of people, who have lived in this country for generations, their citizenship rights, and label them as ‘foreigners’? This conundrum becomes all the more complex, when one understands the import of the recent order passed by the Supreme Court of India in the NRC case.
On 23rd July, 2019, the Supreme Court passed an order on a plea seeking clarification by the State NRC Coordinator, Prateek Hajela, on the issue of descendants of Doubtful Voter (‘DV’), Declared Foreigner (‘DF’), and cases pending at Foreigner’s Tribunals/Other Courts (‘PFT’), whose one parent was DV/DF/PFT, but the parent from whom the legacy is drawn for inclusion in NRC was not a DV/DF/PFT and was also found eligible for inclusion in NRC.
It really speaks volumes of a legal process, which dehumanises an individual to merely an acronym, being denuded of one’s identity, lived realities and livelihoods. The suggestions made by the State Coordinator were produced in the Court’s order, along with an opportunity to all parties, to contest the prayers, if they want.
On 13th August, 2019, the Supreme Court in a detailed order upheld the suggestions of the State Coordinator with respect to the claim of the descendants of those, one of whose parent is a DV/DF/PFT, which were divided into two categories:
Firstly, those persons, who were born before 3rd December, 2004, and if the parent through whom legacy is drawn is not DV/DF/PFT, but the other parent is, then such persons may be included in the NRC. But those, who are born on or after 3rd December, 2004, and one of the parents is a DV/DF/PFT, even though legacy is not drawn from this parent, such persons would be excluded from NRC.
Secondly, for those applicants/claimants, if parent/legacy person through whom eligibility is sought to be established is a DV/DF/PFT, then such persons would be excluded from NRC, irrespective of the status of the other parent. In short, a distinction is being made between adults seeking inclusion, if their parent through which legacy is being drawn is a DV/DF/PFT, and children born after 3rd December, 2004, whose non-legacy parent is a DV/DF/PFT, and they are excluded from NRC.
With respect to both the criteria, the Supreme Court deliberated on the contentions raised by many applicants stating that the cut off date of 3rd December, 2004 is arbitrary and goes against the expressed provisions of the Citizenship Act, 1955.
Section 3(1) (a) of the Citizenship Act provides that any person born in India, on or after 26th January, 1950 but before 1st July, 1987, or born after 1st July, 1987, but before the commencement of the Citizenship (Amendment) Act, 2003, and one of her parents is a citizen of India at the time of her birth, or born on or after the commencement of Citizenship (Amendment) Act, 2003, and one of her parents is a legal citizen, and the other is not an illegal migrant shall be a citizen of India.
In this regard, just because someone has been designated as a DV/DF/PFT, it does not mean that she is an illegal migrant, since one can challenge the same in the Foreigner Tribunal proceedings.
In effect, this literally puts the Citizenship Act on its head, and penalises the children of Assam, those who are born, lived, and educated in this country, and one of whose parents is a citizen of India, to be denied all claims of Indian citizenship, merely because the other parent is an alleged DV/DF/PFT. In a country, where bureaucratic corruption and inefficiency is rampant, there are several reports of thousands of people being wrongly designated as DV/DF/PFT, to penalise not just them, but also their children is a monstrosity of the highest order.
While on the one hand, the Government wants to give more and more rights to Non-Resident Indians (NRIs), Persons of Indian Origin (PIOs), Overseas Citizen of India (OCI), some of whom have never even stepped into the territory of India, on the other hand, NRC seeks to denude many people who have been born, raised and lived in this country their right to citizenship. The tragedy cannot even be presently fathomed, except by those who are facing it day after day, document after document, hearing after hearing.
However, the Supreme Court dismissed all these contentions and held that the concerned suggestion was in consonance with the Citizenship Act and the Standard Operating Procedure (SOP) for disposal of claims and objections, though the Court itself noted that the import of Section 3(1) (a) and (b) in the context of Section 6A is pending consideration before the Constitution Bench of the Supreme Court.
(Section 6A was introduced in the Citizenship Act, vide the Citizenship (Amendment) Act, 1985, to give statutory recognition to the Assam Accord, and provides for special provisions as to citizenship of people covered by the Assam Accord.)
It is highly unfair that the Supreme Court is deliberating on such critical issues of citizenship and identity of millions of people in Assam without deciding the substantial issue of law in Section 3(1) and Section 6A of the Act. The Court, in fact, agreed with the State Coordinator’s suggestion that this issue could be best decided by the Foreigners Tribunal, in case of any appeal. Which Constitutional Court of the world agrees to strip off the citizenship of hundreds of children, one of whose parents is meeting all the eligibility criteria for NRC inclusion, and outsources its constitutional duty to protect the fundamental rights of individuals to a quasi-judicial tribunal, which is designed to designate people as ‘foreigners’?
And let us not even get into the issue of huge litigation costs involved in fighting cases in the Tribunals. And, to justify all these in the name of Assam Accord and Section 6A of the Citizenship Act, whose validity is still pending before this very Court, is nothing but specious and a mask to hide the Court’s own biases.
The Court’s own words that “the entire NRC exercise having been performed on the aforesaid basis, the same cannot be ordered to be reopened by initiation of a fresh exercise on certain other parameters that have been suggested on behalf of the intervenors/applicants on the strength of the provisions of Section 3(1) (a) of the Act” are hollow and disingenuous, considering the heart of the matter, i.e., the challenge to Section 6A of the Act, is yet to be decided.
History will not be kind to the Supreme Court for spearheading the NRC mayhem, and for abdicating its constitutional obligation to protect the freedom and liberty of the people Kashmir, including their political leaders, who have been detained illegally.