Debate: The NRC Will Not Resolve Assam's Humanitarian Crisis

An overly legal approach will only produce more tension, insecurity, anxiety and possibly worse.

In ‘NRC is What Will Allow Assam to Escape from the Cauldron of Hate’, the respected Guwahati-based professor Hiren Gohain has said the National Register of Citizens “is the only sane and tangible instrument which will restore peace and goodwill in the communities “.

I regret I cannot agree.

The NRC was created under pressure of the agitation in Assam led by the All Assam Students Union culminating in the 1985 Assam Accord. The accord – and the associated NRC – envisage accepting the foreign nationals who migrated into Assam on or before March 24, 1971 as Indian citizens, but not those who came thereafter. Will implementing this provision restore peace and goodwill?

To examine this, let us take a hypothetical case. Suppose someone from Bangladesh had entered India in 1972 when he was 20-years-old. Today, he would be 67, and therefore probably a grandfather. Will he be deported? Where will he go if Bangladesh does not accept him? And when it comes to the offspring of such migrants the picture becomes even more complicated.

The problem of offspring

Section 3 of the Citizenship Act as originally enacted in 1950 defined citizenship by birth by saying that all persons born in India automatically become Indian citizens (whatever be the nationality of his/her parents). Hence, even if both parents were foreigners, the person became an Indian citizen if born in India. This was similar to the position in the US constitution, where a person becomes a citizen of the US by merely being born in the country even if his parents are foreigners or undocumented (i.e. “illegal”) immigrants.

In 1986, evidently under pressure of the Assam agitation, an amendment to the Citizenship Act was introduced by the Rajiv Gandhi government and passed by Parliament which said that while anyone born in India between January 26, 1950 and before July 1, 1987 automatically becomes a citizen of India by birth even if both his parents are not citizens, persons born on or after July 1, 1987 become citizens only if at least one of the parents was an Indian citizen. Obviously, the purpose of this amendment was to deny citizenship to persons born in India if both parents were immigrants, whether legal or “illegal”.

The Atal Bihari Vajpayee government introduced another amendment to the Citizenship Act in 2003, which specified that persons born in India after December 3, 2003 become Indian citizens by birth either if both parents are citizens, or if one parent was a citizen and the other was not an illegal immigrant. This makes the provision for citizenship by birth even more stringent.

Given these successive amendments, what will be the legal status of children of “illegal” immigrants who were born in Assam? Children born in India before 1987 would automatically be considered Indian citizens even if their parents are considered “illegal”. The children of an “illegal” migrant who married an Indian would also be considered Indian if they were born between 1987 and December 2003.

But any children born of an “illegal” migrant parent after December 3, 2003 would be denied Indian citizenship. Where will they go? Bangladesh will not accept them and even if it did, they may have no home there. If, on the other hand, they are allowed to stay in Assam without being granted citizenship they will be in limbo, with the Damocles’ sword of deportation always hanging over their head.

Legal problem, or humanitarian one?

I spoke to some Assamese youth about the issue and they were adamant, in fact almost hysterical, that these ‘infiltrators’, as someone called them, must be thrown out of Assam ASAP. I asked them where are they to go? They said that is not their concern. “They are illegals and must get out. If anyone has sympathy for them let them take them into their own house or state. But there is no vacant space for them in Assam.”

This legal approach to the matter reminds me of a case which came before my bench when I was a judge of the Supreme Court. It related to illegal squatters in jhuggi jhopdis in Mumbai. My colleague on the bench shouted “You have no legal right to live there. Just get out”. I said “But where are they to go? Should they be dumped into the sea? It is a humanitarian, not just a legal, problem “.

No doubt squatters in Mumbai are mostly Indians who came from other parts of India and not from a foreign country like Bangladesh. But all over the world, people migrate to foreign countries without proper papers to escape from abject poverty or a war zone or some other reason. It is estimated that there are 11 million undocumented Mexican migrants living in the US. When even the American authorities, having the latest technology, cannot evict them, how do our authorities propose to do so? The border is long and porous, how can a wall be built, as chief minister Sarbananda Sonowal had promised in his election campaign?

The Citizenship Amendment Bill, 2016, which is not yet law, introduces another complication, because it will grant citizenship to non-Muslim immigrants who came into Assam even after March 24, 1971, but deny the same to Muslims. The justification given for this discrimination is that Hindus and Buddhists are minorities in Bangladesh, and fled to India to avoid religious persecution, but Muslims are a majority in Bangladesh and so the same cannot be said about them.

However, it is evident that the real reason is that Muslims vote against BJP, and so, granting citizenship to them goes against the interest of the BJP.

Many Assamese, like Praful Mahanta, head of the Assam Gana Parishad, are against granting citizenship to any immigrant who came into Assam after March 24, 1971, whether Hindu or Muslim, and agitations have taken place against the Bill, both in Assam and other North Eastern States.

I see no solution to the imbroglio, only more tension, insecurity, anxiety and possibly worse. What Hiren Gohain believes to be a ‘solution’ actually resolves nothing.

Markandey Katju is a former judge of the Supreme Court.