Saturday, February 4, 2023


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Above: West Bengal CM Mamata Banerjee has been vocal against the NRC in India/Photo: UNI

By Inderjit Badhwar

Home Minister Amit Shah’s desire to expand the National Register of Citizens (NRC) to embrace the entire nation within its exclusionary embrace has met with cheers as well as boos. Among the most vociferous cheerleaders are Hindutva hardliners who believe that the initiative will finally deprive Muslims of their vote bank power, put them outside the ambit of mainstream democracy and clear a major minefield in the path of their beloved “Hindu Rashtra”.

Also backing the move are people who believe that untrammelled illegal immigration is a threat to established social systems, demographic balances and economic activity and can be ignored only at a perilous cost to the sovereignty of a nation state. This is nothing new. Both the views are rooted in rivalries, primordial prejudices and “righting historical wrongs” by trying to erase history through demographic manipulation. The Modi-Shah NRC initiative looks new only because the political ruckus it has created is a headline grabber. The problem of immigration is a worldwide phenomenon. It is ancient. It is contemporary. It is recognised by international bodies as an issue to be tackled through binding covenants, humanitarianism and the rule of law grounded in human rights.

Well before the NRC question resurfaced as a major electoral trump card for the Modi-Shah BJP, the controversy was highlighted by the Vajpayee-Advani BJP as a Sangh Parivar political agenda. The Law Commission in 2002 also made a high-level recommendation on finding a balance between the real problems created by illegal immigration and a law-based approach to handle them keeping in mind international commitments as well as the national interest.

It is ironical that in today’s world, which has been shaped by waves upon waves of human migration 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 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 does not propose new human rights for migrant workers. Part III of the Convention “is a reiteration of the basic rights which are enshrined in the Universal Declaration of Human Rights and elaborated in the international human rights treaties adopted by most nations”.

So why are those rights subject to another international legal instrument?

“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 Law Commission’s lengthy recommendations were calibrated and grounded solidly in international commitments as well as India’s own constitutional principles. It is a lengthy report, a far cry from Trump’s ban-’em-’n-lock-’em-up-n’-throw-’em-out approach.

The Commission chose the option of recommending incorporation of new provisions in the existing Foreigners Act was to make it effective enough to meet the main problem of illegal immigration without interfering with the existing legal framework.

“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 centres 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 problem, the government must choose the wiser course of toughness, tempered by legal due process.

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