NRC unconstitutional and violates international law: Amnesty must for the excluded
It is ironical that India which has a 20 million strong diaspora across 110 countries and which generates one of the highest outward migration has legitimised xenophobic anti-immigration policies
The 69-year old ‘hunt’ for foreigners in Assam through the National Register of Citizens (NRC) mechanism began with the Immigrants (Expulsion From Assam) Act, 1950, enacted before our first democratically elected Parliament took office in 1952.
NRC was first established in Assam during the 1951 Census to implement this Act. The Act has been supplemented over the years by several laws and regulations that advance its core ‘ethnic cleansing’ goal.
The Expulsion Act is an extraordinarily xenophobic and draconian law that evokes memories of fascist expulsion laws in Europe and in other parts of the world. It violates key principles of Constitutional and international law. Its seven-decade history has shown that its goal of ‘cleansing’ Assam of foreigners is not only in direct opposition to the Constitutional values of a united India based on equality, freedom and fraternity, but is also unimplementable.
The Act should be immediately repealed or struck down by courts, along with its sister laws. The NRC exercise must be shut down once and for all as violative of Constitutional law and international law (for reasons explained). In any event, NRC has now been overtaken by Aadhar.
It is not informed by the important principles of Constitutional law enunciated in the Aadhar and Privacy judgments of the Supreme Court of India. Separately, India has an obligation under international law not to create statelessness through the NRC exercise.
Amnesty should be granted to all those who are in the NRC foreigners list (with due regard to internationally accepted national safety and security precautions). Effective steps should be taken as needed to prevent future illegal immigration into India. Those receiving amnesty should be free to settle in any part of India and should receive due assistance.
Violative of international law
The Expulsion Act is inconsistent with accepted principles of international law. It has been, from the very outset, out of step with the world. It was enacted barely five years after the end of the second World War in which the world witnessed murderous and genocidal ‘group expulsions’ of millions of people based on religion and race, leading to untold human suffering and the loss of millions of lives (including mass deportation and killing of jews). Responding to this crisis, a new human rights architecture has emerged in the post war world, in particular making ‘group expulsions’ such as that envisaged in the 1950 Act illegal under international law.
- Article 15 of the Universal Declaration of Human Rights,1948, declares that “Everyone has the right to a nationality” and that “No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.”
- Article 4 of Protocol No. 4 to the European Convention on Human Rights provides that “Collective expulsion of aliens is prohibited”.
- The European Court of Human Rights defines collective expulsion as “any measure compelling aliens, as a group, to leave a country, except where such a measure is taken on the basis of a reasonable and objective examination of the particular case of each individual alien of the group.” (in contrast, our Expulsion Act provides for expulsion of entre “classes” of people).
- Article 13 of the International Covenant on Civil and Political Rights protects aliens who are lawfully present in a country from arbitrary expulsion.
- Article 22 of the Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families provides that migrant workers and members of their families — regardless of the legality of their presence —“shall not be subject to measures of collective expulsion” and that “each case of expulsion shall be examined and decided individually.”
- There are international legal standards that protect the rights of children, women and families in the context of expulsion that would need to be applied to the NRC process.
The Convention on the Reduction of Statelessness, 1961, creates an obligation on States to reduce statelessness. To this end, amongst other matters, the Convention provides that States “shall not deprive a person of his nationality if such deprivation would render him stateless”; requires that States “shall grant its nationality to a person born in its territory who would otherwise be stateless” and that “If the law of a Contracting State provides for loss of its nationality by a person’s spouse or children as a consequence of that person losing or being deprived of that nationality, such loss shall be conditional upon their possession or acquisition of another nationality.”
These are the types of considerations that may have prompted the UN High Commissioner for Refugees Filippo Grandi to issue a statement on September 1, 2019 expressing alarm over the “publication of a National Register of Citizens (NRC) that may put large numbers of people in India’s north-eastern state of Assam at risk of becoming stateless.”
The High Commissioner appealed to India to ensure that no one is rendered stateless by this action, including by ensuring adequate access to information, legal aid, and legal recourse in accordance with the highest standards of due process and called on India to refrain from detaining or deporting anyone whose nationality has not been verified through this process. It is not clear that the Supreme Court judgments and orders on NRC have adequately dealt with the international law dimensions of the NRC process.
From a Constitutional point of view, the Expulsion Act and the NRC process under it violate the right to equality under Article 14 and the right to Life and personal liberty under Article 21 (both of which are guaranteed to all persons, not just to citizens) because they vest vast arbitrary and unguided power and discretion in the executive to expel, deport and banish from Assam or from India anyone who has ever been at any point of time “ordinarily” resident in any place outside India and has at any time ever “come to Assam”.
Arguably, this could include Indian citizens who are natives of Assam but may have been ordinarily resident outside India at any time. Whereas the purpose of the Act is to expel “immigrants”, there is no clear definition of the term in the Act.
Betraying an implicit anti-Muslim bias, the Act provides a blanket exemption from expulsion exclusively for refugees fleeing from communal disturbances in Pakistan (who will naturally be non- Muslim) but mandates expulsion of other persons or groups (who could include Muslims).
Even those who are protected by the basic principle of international law (‘non-refoulement’) that refugees or asylum seekers should not be sent to countries where they face persecution based on "race, religion, nationality, membership of a particular social group or political opinion” are required to be expelled by the Act if they are “immigrants (i.e., they have ever been at any point of time “ordinarily” resident in any place outside India and have at any time ever “come to Assam”).
A dissenting voice from 1893
In a dissenting judgment written over a century ago in a case in which the U.S. Supreme Court allowed three long-time resident Chinese laundry workers to be deported by the US Government from the US under the Chinese Exclusion Act of 1882 on the grounds that they did not carry residency certificates with them (Fong Yue Ting vs. United States, 1893), then US Chief Justice Melville Fuller wrote about expulsion of foreigners:
“… No euphemism can disguise the character of the act ...It …inflicts punishment without a judicial trial. It is, in effect, a legislative sentence of banishment, and, as such, absolutely void. Moreover, it contains within it the germs of the assertion of an unlimited and arbitrary power, in general, incompatible with the immutable principles of justice, inconsistent with the nature of our government, and in conflict with the written constitution by which that government was created, and those principles secured.”
Wise words on the true nature of deportation as punishment inflicted on those whose only crime is seeking to join communities in order for them and their families to survive.
India must live up to our claim to be a compassionate civilization that believes that all of humanity is one family:
(The author is an eminent jurist and former director of National Law School of India University, Bangalore and Rajiv Gandhi Institute of Contemporary Studies, New Delhi)