Watch | 'NRC Breaches Citizenship Act and Is Unconstitutional'

India's concept of citizenship has been restricted and undermined, Mustafa argues.

Faizan Mustafa, vice-chancellor of the NALSAR University of Law, explains the major legal problems with how the National Register of Citizens was conducted in Assam to Karan Thapar.

As a result, he argues, India’s concept of citizenship has been restricted and undermined, and we have ended up treating citizens unequally. We now have different criteria for who is a citizen in Assam (under the NRC) and in the rest of the country.

Full transcript:

Karan Thapar: Hello and welcome to a special interview for The Wire.

The National Register of Citizens (NRC) has been published in Assam and it raises deeply worrying legal and constitutional questions about the way it diminished the concept of citizenship and in turn, what impact that would have on India’s valuable democracy.

The bizarre part is that questions about this have hardly been asked. In some cases they haven’t been asked at all and when they have been asked, they certainly haven’t been answered adequately. So with me today to shed light on this entire gamut of issues is one of the India’s top experts on the constitution – the vice-chancellor of the NALSAR University of Law, Professor Faizan Mustafa.

A violation of the Citizenship Act

Prof Mustafa, let us start with something actually most people aren’t even aware of. The National Register of Citizens in Assam has been drawn up in a way that actually breaches the Citizenship Act of 1955. The NRC uses as its cut off point for citizenship midnight on March 24, 1971. But the Citizenship Act is absolutely explicit, it says every person born in India before July 1, 1987, in other words up to June 30, 1987, is a citizen by birth. And the Citizenship Act is the law of the land. Does not this mean that the NRC has violated the law?

Faizan Mustafa: This is how I would like to think, that NRC is in clear violation of Section 3 which gives citizenship by birth, and since NRC is being done under the Registration of Citizens and Issue of National Identity Card Rules, 2003, the Rules cannot violate the parent Act.

KT: So you are absolutely clear that the NRC violates the Citizenship Act. Because this is a very important statement, are you clear about it?

FM: I am clear about it.

KT: Let us go into this in some detail, because this is a very important point. Prateek Hajela, the coordinator of the NRC, has said, “Citizenship purely by birth and not by descendence is not eligible for inclusion in the NRC,” and his reason is that one parent of such people could be a doubtful voter, a declared foreigner or someone whose claim for citizenship is pending before a Foreigner’s Tribunal.

But Section 3(1) (a) of the Citizenship Act clearly says – I am quoting – “Every person born in India on or after the 26th of January, 1950 but before the 1st day of July 1987 shall be a citizen of India by birth.” Nowhere in that section do they talk about the parents of such people, nowhere do they talk  about the citizenship status of such parents. So my question is simple: Do you believe that Mr Hajela’s reasons for arguing that citizenship by birth doesn’t make you eligible for inclusion in the NRC are valid reasons?

FM: Laughable. You yourself said that Section 3(1)(a) says anyone born between republic day of 1950 and 30th June 1987 shall be a citizen by birth. The word used here is ‘shall’, ‘shall’ in law means mandatory. While Hajela is saying their parents ‘could’ be D-voter or possibly a foreign national, just because Hajela thinks that there can be a possibility of their parents not being Indian citizens, he cannot be denying citizenship or inclusion in NRC to anybody.

KT: So, the word ‘shall’ takes complete precedence over any doubt that is associated to the word ‘could’ with the parentage of such persons?

FM: In any case ‘could’ is a statement from the NRC coordinator, it is not a statutory word. ‘Shall’ is the statutory word.

KT: In other words, Mr Hajela has no business overriding the constitution or the law of the land and the Citizenship Act is the law of the land.

FM: Absolutely, because Section 3(1) (a) which is giving citizenship by birth is consistent with the constitutional vision of jus soli, which gives citizenship by birth.

KT: Now, in fact the Citizenship Act itself explicitly says which category of people do not qualify for citizenship by birth.  And according to the Act, only two categories do not qualify. Firstly, children of diplomats and secondly, children of enemy aliens provided they are born in a part of the country that is at that time under occupation. None of those categories apply to Assam.

FM: It is common sense. Embassies are floating islands of the concerned country. Children born to diplomats will get the citizenship of their parent country. And of course, we cannot be giving citizenship to enemy aliens. So if some countries are at war with us, we can’t be giving citizenship to their children.

KT: But only those two categories are excluded.

FM: Yes.

KT: So when Mr Hajela creates other exclusions, he is going well beyond the stipulation of the Citizenship Act.

FM: Of course, and also he is in violation of several international conventions. For instance, the convention on rights of children to which India is a signatory says that every child on birth will have the right to nationality.

KT: And he has breached that as well.

FM: Yes.

KT: In fact he is, therefore, not just in violation of the Citizenship Act, he is in violation of many international conventions that India has signed up to.

FM: Yes.

KT: Now all of this was raised in front of the Supreme Court and initially, on the 9th of August that is just about a month ago, the Supreme Court gave a categorical assurance that anyone born in India before the 1st of July, 1987 would not be excluded from the NRC. But then four days later, on the 13th when the Supreme Court gave its order, it argued that because the NRC has been done on the basis of 24th of March, 1971 as the cut off date, the same cannot be now ordered to be reopened by initiation of a fresh exercise on the strength of the provisions of Section 3(1)(a) of the Act.

What do you make of that explanation? To me it suggests that the Supreme Court has given priority to administrative convenience over fidelity to the law and over the rights of the people affected.

FM: Under our scheme, the Supreme Court is the guardian of people’s rights. Therefore, Supreme Court has been given the power to strike down a law which has been unanimously passed by the parliament if it is in violation of any fundamental right. ‘Administrative convenience’ cannot be the justification to take away the most fundamental of all rights. Citizenship is a right to rights. If you have citizenship, you get several other rights.

KT: This is very important. Supreme Court is the guardian of rights. But here the Supreme Court has actually gone the opposite way, it has agreed with Mr Hajela who is undermining rights.

FM: Correct.

KT: So then it follows, this is very important, that in this instance the Supreme Court has not only permitted but worst it has protected Mr Hajela’s arbitrary restriction of the concept of citizenship.

Women and children who were excluded from the NRC. Photo: The Wire

FM: But that has been the story of the NRC in the last few years. Starting from Sonowal’s judgment, where the court has virtually taken over the role of the executive. What was the challenged in Sonowal’s judgment – and he is now the chief minister – was the IMDT Act i.e. Illegal Migrant Determination Act,1983.

Now when the constitutionality of a law is challenged, the job of the court is to see whether parliament had the power to pass that law, or whether that law violates any fundamental right. Court did not do this exercise. It said that illegal migration is aggression – ‘external aggression’ – and if the Centre is not stopping it, then it is in violation of its duty under Article 355 (duty of Centre to protect states) and therefore the court struck it down.

The IMDT Act had put the burden of proof on the state to prove that the accused is foreigner. Striking down of IMDT, I think, was the starting point of today’s crisis, and it was a court-enunciated crisis.

KT:  So you are saying a very important thing. We are going back in history from the moment the Supreme Court struck down the IMDT Act, it has not only been exceeding its jurisdiction but in addition, it has been tampering with the concept of citizenship itself.

FM: Yes, of course. In fact, our parliament has also been diluting the idea of citizenship and our court has been supporting it and taking several steps ahead of parliament. You see, when the government does any wrong, we go to the court and get it rectified in judicial review. In the entire NRC process, the court itself has been taking decisions – which document will be permitted, which document will not be permitted – where do people go then?

KT: Therefore, in this particular instance, and I am emphasising it, rather than to say that the NRC process is a violation of the Citizenship Act and therefore it is the violation of the law of the land, what the Supreme Court has done and remember, it did it as recently as the 13th of August this year, Supreme Court has a permitted a violation of the Citizenship Act and it protected it on the ground of administrative convenience. This is particularly a bad moment for  the court.

FM: Of course in several other matters, we are presently observing that the court is not showing the same amount of commitment to protect people’s rights and fundamental freedoms and constitutionalists are not very happy with this trend.

KT: And the way the court has behaved over the NRC, and the fact that the NRC breaches the concept of citizenship, is actually worrisome.

FM: Yes.

KT: But actually, it is the derogation of the court’s duty, it has not fulfilled its duty.

FM: No, what the court did, they referred it to the constitutional bench. Now if tomorrow, the constitutional bench strikes it down, the entire exercise is to be done again.

KT: But the funny thing is, on a matter that is so straight forward, they have referred it to the constitutional bench and therefore in a sense passed the buck to the future, but they have permitted the NRC to carry on and that process  could lead to people being declared illegal foreigners and stateless.

FM: Yes.

KT: I want to come to two very important consequences of what the court has done at this point. The first is, it seems to me that in a rush to conclude the NRC and in a rush to identify what we call illegal foreigners, we adopted a process whereby legal citizens have been transformed into illegal immigrants.

FM: Yes.

KT: You will agree.

FM: Yes, I agree, an NRC kind of exercise may be good for a small city-state like Singapore. Here you are dealing with almost some four crore people. And therefore when you are determining people’s nationality and citizenship, fairness rather than the speed should be the  primary concern.

KT: And here because of speed and because of the process, we ended up converting legal citizens into illegal immigrants and that is doing them an injustice, it is unfair and it is also illegal.

FM: It’s self-inflicted wound in which the court is also a party, because in a matter as important as this, ‘it should happen by this date’ should not be our concern. Our concern should be, ‘it should be just and fair, and it should be done in the most reasonable manner’.

KT: However long it takes doesn’t matter; what matters is it should be done justly and fairly and if you put a deadline, you are almost ensuring it will be done unjustly and unfairly.

FM: And interestingly, the government was not in that hurry. Government was requesting the court to extend the deadlines.

KT: The hurry came from the court.

FM: From the court.

KT: Which means that the court is guilty of two things, one permitting and protecting infringement of the Citizenship Act, which you pointed out, but secondly of ensuring that the whole process would be unfair because they imposed a deadline and judges should’ve known that in a matter like this, a deadline is invidious to justice.

FM: Correct.

KT: So the justices have acted in their wisdom, they acted in haste and therefore they acted wrongly.

FM: I would say that in this matter, what was expected from the court has not been delivered. Our expectation from the court was that they would ensure that people are not denied citizenship if they have genuine documents. People are becoming stateless because there is a strict timeline set by the court.

Impact on democracy

KT: Let me then come to second and perhaps bigger consequence of what the court has done.  Would you agree that the NRC process has actually ended up undermining, diminishing the whole concept of citizenship in India and if it has done that, does that also has serious implications for India’s democracy?

FM: Karan, citizenship is an idea of exclusion, citizenship is not about people, it is about state. It indicates the state’s relationship with people. Ideally, we should have civic nationalism rather than ethnic nationalism. The whole process of NRC, in my opinion, as you rightly said, undermines the idea of citizenship by birth, which is a liberal, universal idea. We are going for the idea of citizenship by relationship, which is a regressive idea in my opinion.

KT: You said a very important thing – you began by saying that citizenship regulates the relationship between an individual and the state. And if you tinker around with the term citizenship, then you are also ipso facto changing the relationship between the individual and the state, and in this instance by excluding citizens by birth from eligibility to be part of the NRC, the NRC has changed the relationship between the individual and the state.

FM: The NRC has damaged our international reputation as a civilised nation. There are concerns expressed in international newspapers. People are worried – what is going to happen, now two million people, last year it was four million people. And, therefore, I feel that the whole idea of the NRC in itself is a flawed idea.

KT: No doubt, it has damaged India’s image internationally, but I would say to you the more important thing is that the NRC has changed the very meaning of citizen of India – it has now thrown into doubt that you can be a citizen of India by birth, the NRC has put a huge question mark over it and many people who are citizens by birth have been deliberately excluded, not accidentally, deliberately excluded from the NRC.

FM: Yes.

KT: You agree.

FM: Last year you had four million people, for last one year 2 million people who have now included, they were living in panic, in fear and they were expecting all kinds of harassment from fellow citizens.

KT: And when you therefore arbitrarily change the meaning of the concept of Indian citizen, are we doing a damage to Indian democracy.

FM: No what really happened that the way the argument was developed initially by AASU and subsequently adopted by the BJP was this that this cancerous growth of – as Governor S.K. Sinha will put it – of illegal immigrants is undermining our democracy and they are affecting the outcome of elections. That’s why the whole concept of D-voter came in (doubtful voter was introduced in 1997).

But now we know, these people are less than 6% of the population and after verifications and tribunals, this and that, at the end of the day, you may not have more than three lakh people – so there is no threat to Assamese culture, Assam’s ethnicity and these people in no way can damage the democratic rights of people of Assam.

KT: And yet the situation we have reached today because of the NRC is that India today is a democracy where the definition and meaning of an Indian citizen is suddenly in doubt.

FM: Yes, we are suspecting our own citizens.

KT: And that is a terrible thing that for a democracy to do. Because it means that some citizens we are not treating equally.

FM: It is the worst thing to happen in any democracy that you suspect your own citizens and then you create hierarchies amongst citizens.

KT: The worst thing that can happen in any democracy.

FM: Yes.

The process

KT: So far, Prof Mustafa, we have discussed how the NRC breaches the Citizenship Act – and the Citizenship Act, by the way, is the law of the land. We have discussed how this has been not just permitted but protected by the Supreme Court and then we have discussed what this does to the concept of citizenship in Indian democracy.

Let’s at this point widen our discussion because I want to put to you certain critical aspects of the NRC process itself and ask you whether they are legitimate, legal and fair. To start with, the NRC process required every resident, every person living in Assam to himself or herself prove they were citizens of India, the onus of proof devolved on them, but millions of these people are poor, they are illiterate, they are rural and they do not have the documents required. Yet if you don’t have the documents you are deemed to be a foreigner. So ab initio was this legal and fair?

FM: I would say it was grossly unfair. You see number one, Assam has a unique geography, you know every year Brahmaputra changes its course and thousands of villages, get eroded. We get floods and documents get destroyed. So just because somebody is not able to produce a document, you say he is not a citizen. He is a citizen but the document is not there with him.

Now in this whole process what we are doing – we are overemphasising documents. Now here I have to tell you, the courts again have been giving inconsistent decisions. Just to give you one example, having a passport of another country in one case, the court said that means you are not Indian citizen. In another it said that if somebody has a Pakistani passport that does not mean, he is necessarily Pakistani. In another case they said that if he has a Pakistani passport, then he is a Pakistani citizen not Indian. In a third case again they went back and they said having a passport does not mean anything. In another case they said just because your name is there in the voter list that does not mean you are a citizen. So sometime you emphasise documents, sometimes you negate people’s documents.

KT: So on the position of the documents, the court has taken contradictory stands at different times.

FM: Yes.

KT: But here the real unfairness and injustice is when you are talking about poor people and illiterate people, and as you correctly pointed out, people who are regularly flooded and their houses destroyed by the Brahmaputra, you are expecting them to have documents.

Loads of people like me and perhaps you may not be able to easily find their birth certificate. It may not have been kept. As you get older, you don’t know where it lies. But you are expecting poor and illiterate people whose homes are regularly flooded to provide certificates and they have to be precise certificates – you want details that prove birth or parentage. That, you are saying, is grossly unfair.

FM: Let me give you little bit of details. You are not asking the document which is readily available with me, you are saying I have to produce a pre-1971 document. The 1951 NRC which the Guwahati high court said was not rightly done, it is not a public document. You are asking people to produce pre-1971 bank accounts.  How many people had bank accounts at that time? We should thank Prime Minister Narendra Modi for so many people having their bank accounts today.

KT: You are asking people to produce documents that are sometimes 40 years old, sometimes over 60-70 years old and these are poor people whose homes are often washed away, the illiterate people who probably don’t keep documents, you are asking them to produce them. If they don’t produce them, they are deemed to be foreigners.

FM: And first you produce those pre-1971 documents, what are called legacy documents or List A, and then you produce List B documents to prove your linkage with the legacy person, then only your name will be included.

KT: As a result of this, and we found this out when the outcome of the NRC was known, we find that people have been refused inclusion in the NRC because their name is spelt differently in different documents. Brothers have been included and sisters excluded. Sometimes parents have been included and siblings excluded. And we even got cases where close relatives of a former president and serving MLAs have been excluded. Does that suggest that this whole process of the NRC was simply misconceived?

FM: Misconceived and very badly implemented, very badly implemented. If you have your own Army officers, police officers, government officers, even Election Officers and people who are involved in the NRC process excluded- their names have been excluded.

KT: So beyond the unfairness and beyond the illegality it has also been inefficiently handled. It has been badly implemented.

FM: Yes. If Vinod Rai had been there he would have calculated the human costs and the presumptive losses which have come to India because of NRC and I am sure it would have gone to more than one lakh crore. The whole state is in a standstill for four years.

The Foreigners’ Tribunals

KT: Let’s now come to the consequences of the NRC – just 1.9 million people have not been included, their cases  now go to Foreigner’s Tribunals. At the moment there are hundreds of Tribunals and the government said that 200 more will be created. So 1.9 million cases will be handled by 300 Tribunals in a fixed time frame that cannot exceed 6 months. That means each Tribunal will handle 6,333 cases and that in turn means each Tribunal has to handle 235 cases a day including working on Sundays and that in turn means each Tribunal has to handle one and half cases per hour right through the 24 hours a day including working at night and I want to ask a simple question is that doable or is that laughable.

FM: Justice hurried is justice buried. It is humanly impossible to do it in such a short span of time.

KT: And yet that is what is required.

FM: I am sure they are going to amend the law and extend the time.

KT: But as yet they haven’t. Therefore, let me raise with you second problem with the Tribunals. It’s to do with the quality of the Tribunals. I discovered that these Tribunals do not necessarily have to be headed by judges. They could be headed by ordinary lawyers, in some cases they can be headed by bureaucrats. Often those could be bureaucrats without legal experience, without even very much training. Is that right therefore that these at best quasi-judicial bodies  handling something as critical as a human beings’ citizenship.

FM: These are kangaroo courts and it is wrong to call them quasi-judicial because as you know originally these Tribunals were constituted under the Foreigners Act, 1946  and it is a colonial piece of legislation. We are talking of citizenship of post independent India and originally the law said when these Tribunals were constituted in 1964 that they will have retired additional district judges, district judges, people who have judicial experience. Now they have provided that lawyers with 10 years’ experience and 55 years of age too have been appointed, I saw another advertisement and they have recruited on the basis of that advertisement more than 210 people with seven years’ bar experience. Then they say civil servants, retired civil servants can also be members.

Then these members are not independent – their services can be dispensed with by the government. So services of 19 members of Foreign Tribunals  were dispensed with because their record in terms of declaring people foreigners was poor. So initially they were given two years’ contract now they are given one year contract. There is no security of tenure for them. The government is pressurising them and they are appreciated if they declare more people as foreigners- who is the highest wicket taker is the conversation in Assam.

KT: You are saying three very important things that I may point out for the audience. First of all you are saying a colonial era law has been used to create Foreigner’s Tribunals and it is inappropriate for independent India to fall back on this.

Secondly you are saying the qualifications required for the person who had been steadily whittle down and you come to the point where even retired civil servants who may have no legal understanding and experience can head Tribunals and most importantly you are saying that in fact these people’s services can be dispensed with, so the government can put pressure on them, in other words instead of acting independently they will be bending their knee to the government.

FM: They are not independent at all.

KT: In which case let us be then come to the next critical question about this Tribunals. It’s to do with the quality of their decisions. Now Rohini Mohan has analysed 500 Tribunal judgments and she’s come to the following conclusion. She says over 80% of the people on trial were declared foreigners. As you pointed out therefore there is a huge inclination to declare people foreigners, 80% of the people on trial were declared foreigners. They were all Bengali and they are overwhelmingly Muslims.

Secondly, she points out that the burden of proof is on the accused and in 78% of cases the orders were delivered ex-parte without the accused being heard and it seems different Tribunals followed different procedures. There is not even a uniform procedure. As an expert in law does that suggest fairness.

FM: Karan, as someone who has taught criminal law and constitutional law for so many years, I feel really very bad to see how these Tribunals are working, how notices are issued, even the law under which they are working says that they shall communicate the ‘main grounds’ to the accused but their notices say for  X + so many people do not mention grounds- they have to just come and appear before the Tribunal because somebody  has doubted their nationality or citizenship. No grounds are communicated to them.

How do you defend yourself when you do not know the allegations? When police gives evidence, they are bound by that evidence but when witnesses give evidence, they may stop that evidence. These tribunals are not open to public. You see the constitution does talk of Tribunals. So in the constitution they refer to all kinds of tribunals like Industrial Tribunal. You have a Green Tribunal, you can have Tribunals on land. Citizenship is not mentioned in it.

Why do you have tribunals under an executive order? Why Tribunal proceedings are secret if these are quasi-judicial proceedings? Let them bring more transparency in their orders.

KT: And there is no transparency at all.

FM: Yes.

KT: And all the problems you mentioned are aggravated by the fact that some times the Tribunals are headed by retired civil servants who have no legal training and therefore do not have the capacity to work out whether evidence is admissible or not.  They simply go by the instinct or by their bureaucratic training which may not be legally justified.

FM: Yes, no due process is being followed.

KT: Now, at the end of the day, people rejected by these Tribunals and we could be talking of lakhs and lakhs of people, we simply do not know how many will be rejected – still do have recourse to high court appeal and a Supreme Court appeal.  Doesn’t that mean that their future will be hanging in an uncertain way like a sword of Damocles over them for years if not decades?

FM: I am sorry but how many in India can afford to go to a high court and Supreme Court? Look at the fees which lawyers charge today. Now even for matters like this, if you have to pay Rs 70,000-80,000, these poor people, destitute people, unemployed people, they don’t have money to engage lawyers.

KT: So in that case the fact that theoretically they can go to the high court or the Supreme Court is only a theoretical possibility. They simply don’t have the money to avail these steps.

FM: Just like we say that even aliens in India have a right to life, right to dignity but we know the harsh reality – even our own citizens – how much right to life and liberty do they have?

KT: So you are saying something very important – when these Foreigner’s Tribunals decide that people are foreigners, and we have already discussed how imperfect the Tribunals are and how poor will be the quality of the person presiding over them in many cases.  That outcome will be definite for most people because even though they may theoretically have recourse to High Court and Supreme Courts because they don’t have the money and therefore they cannot pursue it?

FM: It is the civil death of our own citizens.

Detention centres and the future of those excluded

KT: The civil death of our own citizen.  Finally assuming that some people do go to the High Court and the Supreme Court, there will come a stage when the process will end. What will happen to the people who at the final stage are deemed foreigner, deemed illegal in India.  Clearly Bangladesh has already told us they are not going to accept them. So, what sort of life these people have in India? Would they have access to welfare? Would they be able own property?

FM: See, as per law they are to be put in detention centres. So, about 1335 people are there in 6 detention centres that we are having.  But out of this about 335, the Supreme Court said they should be released on bail because they have been in detention centres for more than 3 years if they furnish two sureties of one lakh each. These people can’t be put in such big numbers in detention centres.  We are hearing detention centres are coming up  in Maharashtra, in Karnataka.

KT: The government according to some reports plans to create 10 more?

FM: Yes. Even if they create 10 more, you know in 6 you are having about 1,300 people.  So, you create 10 more, it won’t  still accommodate lakhs and lakhs of people. These people will eventually be released but when they will go for work, they will not be given minimum wages. They will be denied other welfare schemes and of course they cannot buy the property. So you will have people within India who will live in sub-human conditions.

KT: Now, as you said, the law does permit the creation of detention centres. But is it in keeping the spirit of the Indian constitution or does it breach the spirit of our constitution?

FM: Definitely it is in violation of the spirit of the Indian constitution, because the Indian constitution adopted civic nationalism. It is also in violation of UN Conventions which do not permit prolonged detentions. Our constitution doesn’t believe in ethnic nationalism. The Indian constitution gave citizenship liberally to everyone who was born in India.  Most of the people we who have been excluded are people who were born in India. Who were their parents is a different question. But we are denying them citizenship though they were born in India.

KT: And now we are going to put them into detention centres which some people perhaps exaggeratedly called concentration camps. I don’t mean to bring in any Hitlerian association. But the simple condition of detention centre is perhaps comparable to that. 

FM: As per the Government of Assam’s own calculations, more than 25 people have committed suicides/died in the detention centres. The conditions there are horrible.

Citizenship Amendment Bill

KT: Let us come towards the Citizenship Amendment Bill, the Government it seems is determined to pass it in Parliament during Winter session. This Citizenship Amendment Bill provides fast track citizenship for Hindus, Christians, Sikhs and Buddhists from Pakistan, Bangladesh and Afghanistan who seek sanctuary in India.

But explicitly it excludes Muslims.  In a country that calls itself as constitutionally a secular country where discrimination according to religion is constitutionally impermissible.  Do you think that the Supreme Court will strike this down if Parliament passes it?

FM: Difficult to say because Supreme Court if it refers it again to the constitution bench and that matter will then come up before the court after 3-4 years, but it will be clear violation of Article 15 which prohibits state from making and law which discriminates ‘only’ on the basis of ‘religion’.

KT: But your feeling as a constitutional expert is that this is a clear violation of Article 15.

FM: I am absolutely clear about it.

KT: And therefore it is unconstitutional?

FM: Absolutely.

KT: So, if the Supreme Court refers to the Constitutional Bench, that may be technically the right thing for the Supreme Court to do but it is also passing the buck and delaying taking any decision?

FM: Yes, of course.

KT: Ipso facto, if I can use the phrase, by the backdoor this will go through?

FM: It will go through or it is already there Karan. We are not appreciating that in 2015 and 2016  such rules have already been made and these rules allow that people who have come from Afghanistan, Bangladesh and Pakistan if they are Hindus or Christians or Parsis or Buddhists or Jains, they will not be treated illegal migrants. Legal proceedings against them shall abate. Illegal migrants are not eligible for citizenship under Citizenship Act and that bar has already been removed. Their stay is thus already legal and under new amendment they will get citizenship as well.

KT: So, already through the rules effect is been given to implementing the citizenship amendment law?

FM: Yes. Those who came by the 31st of December 2014. We are already protecting them and that’s why I say this whole NRC exercise with the cut-off date of 25th March, 1971 is farce.

KT: It is no secret that the logic behind the citizenship amendment bill is to ensure that Hindus who get excluded from the NRC in Assam find the way of becoming citizens. But then doesn’t that convert the NRC which was intended to be a secular exercise to identify illegal foreigners regardless of their religion has been converted into a communal exercise which now only seems to target Muslims?

FM: Yes. The Assam sub-nationalism was not communal.  There were concerns that Bengalis are coming in big number, their culture and ethnicity is in danger you know if you have just 48% Assamese in Assam- some of these concerns of local people  may really be genuine. We are giving a communal colour to it. They were saying anyone who is non-Assamese is an outsider and that’s why they are opposed to citizenship amendment bill.

KT: We change that to anyone who is non-Hindu.  In fact non-Hindu, non-Sikh, non-Buddhist,  non-Christian in other words, anyone who is Muslim.

FM: Anyone who is Muslim is to be excluded and this law is like Law of Return of Israel (under which any Jew could get Israeli citizenship and return to Israel). We are now saying that India is the home of Hindus and this proves the two-nation theory which Savarkar had been talking about.

KT: Except that government doesn’t realise that it is doing it, but that is precisely what the implication of what the government is doing happens to be.

FM: Yes.

KT: Now, in the mid 90s, the Supreme Court made a concession so that the Buddhist Chakmas in Arunachal Pradesh could be given Indian citizenship because of the length of their residence in the country.  Cannot a similar concession be given to Muslims who have resided in Assam?  Not just for years but for decades to be deemed Indian citizen?

FM: I think so. Chakmas too were Bangladeshis who came from the Chittagong Hill track. Some 5,000 people came, then subsequently the number went up to 65000 or so.  So, initially they came to Assam, one group of families then moved to Arunachal Pradesh and when we changed our law, then they claimed citizenship(Khudiram Bose case) because our law as it stands Section 6 A of Citizenship Act says that anyone who came before 1st January 1966 and is an ordinary resident of Assam shall be deemed to be an Indian citizen.

KT: Problem was by then these people have moved to Arunachal Pradesh.

FM: So they were not ordinary residents of Assam. Guwahati High Court denied them citizenship. Supreme Court in 1994 upheld this denial of citizenship under Section 6A.  Then in 1996, National Human Rights Commission went to Supreme Court and said that these Chakmas are being discriminated  and there are ‘quit notices’ against them. There was an AASU like Organization ie All Arunachal Pradesh Student Union.  Supreme Court then came to the rescue of these people and asked Arunachal Government and Central Government to give them citizenship by registration. I think the same benefit may be extended now excluded people as they are indeed ordinary residents of Assam.

KT: Because of the length of  residence in India?

FM: Yes. So I think same kind of benefit is to be extended to  the leftover people from the NRC.

KT: Very important  point. Because the situation the Chakmas found themselves in Arunachal Pradesh is very similar to the situation that Muslims in Assam who are going to be deemed foreigners find themselves in and Justices Supreme Court were prepared to make a concession to say because of the length of their residence, they should be deemed citizens by registration.  A similar concession is to be given to Muslims who have lived in Assam for decades and again the Court could say because of the length of your residence, you can be deemed citizens by registration.  That’s the point you are making.

FM: Yes.

KT: My last question. Many members of the BJP, Manoj Tiwari in Delhi, Kailash in Bengal, even Himanta Biswa Sarma in Assam are all demanding that NRC exercise should now be carried out nationwide. Do you believe the experience of the exercise in Assam and all the constitutional questions it raised about the way it breaches of  the Citizenship Act, the way it diminishes the concept of citizenship and the way it damages our democracy, does that justify carrying out an NRC exercise nationwide?

FM: There is one positive thing of NRC exercise. It proved that fiction and facts are different. The kind of narrative which we had made that we have five million, we have 10 million illegal migrants has now been busted. Now people who  were for NRC are themselves criticising it. BJP leaders Sarma, Sonowal and others, they are saying this exercise was wrong, we don’t trust it and strangely they want to repeat it in the rest of the country. I can’t say much about it. But in the meanwhile…

KT: Can I interrupt.  You are saying an interesting or somewhat ironical thing. The NRC in Assam has busted the myth that there are 5 or 10 million illegal people, at the most  it is 1.9 million  that figure will diminish as well and therefore if an NRC was to be carried out nationwide, ipso facto to follow the myth that there are millions and millions of illegal people all over India could also be busted.

That’s a possible reason for carrying it out because the myth that there are illegals would be busted.  But on the other hand, given what it does to individuals, the way it diminishes the concept of citizenship and the way as you pointed out it damages our democracy,  is it proper that we should carry out this exercise all over the country?

FM: Not at all. What I am trying to say that the positive thing is that when you created a narrative and even Supreme Court got carried away by that narrative that’s why you have some of the problematic judgments from the Supreme Court leading to NRC.  We are not realising that in the meanwhile, the Bangla economy is doing very well. In the last few years, while our GDP reportedly increased by 117, % their GDP increased by 187%. China’s GDP increased by 177%.  So their economy is improving, our census data itself is showing a decline in migration from Bangladesh.

KT: What is the point you are making?

FM: In fact, the point I am trying to make is that between 2001 to 2011 census data which was withheld is now out tells us that outsiders who were 0.6% in 2001 are now just 0.4%.  So people are not anymore coming from Bangladesh to India in huge numbers. In fact we are having some 1.1 million illegal Indian people who are in Bangladesh and Bangladesh reportedly is the fifth largest remittance contributor to India.

KT: I take your point. First of all you, said and I repeat it that first thing you said is that under no circumstances does the experience in Assam justify extending the NRC nationwide.

FM: Correct.

KT: That’s correct. And the second thing which again is an ironic point is that these days the Bangladesh economy is growing faster rate than the Indian economy, you have illegal immigration not from Bangladesh to India but may the other way round as Indians are also going to Bangladesh because of the improving economic conditions, the job conditions are better on the other side of the border.

FM: Yes. In 2012 we got probably $3.7 billion remittance from Bangladesh. It seems Bangladesh is the fifth largest contributor to Indian remittances.

KT: What a very interesting fact to end.  If nothing else that alone should make people think very carefully of all the issues we have discussed. Thank you Mr Mustafa, pleasure talking to you.