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The National Register of Citizens paves the way for every state to have its own version. Maharashtra tried it in the 1960s and ’70s and all states could do it in the future. This opens a Pandora’s Box of many forms of division and segregation, including colour prejudice, in our country

By Maithili Shaan Katari Libby

I am troubled regarding what it means to be an Indian citizen today. There have been articles in the press about recent comments made by CJI Ranjan Gogoi that the National Register of Citizens (NRC) is not a new concept as it dates back to the 1951 exercise of listing all the Indian citizens in Assam. An agitation started in 2013 and this was when the Supreme Court passed an order for it to be updated. Since then, the Supreme Court (bench of CJI Gogoi and J Rohinton Fali Nariman) has been monitoring it.

The Citizenship Amendment Bill came out of the Assam Accord of 1971 that was meant to detect and expel those who had entered from Bangladesh after the Bangladesh Liberation War. The NRC and the Citizenship Bill are supposedly to grant legal refuge only to those who really need it. There are, however, a few things terribly wrong about this entire exercise.

For one thing, Muslims have been left out completely. It has been argued that Muslims can return to their home countries as they are all Muslim anyway so there is no question of religious persecution. However, this argument is flawed, because as we know all too well with Hinduism, humans are good at stratifying society. Islam has these too, and the Ahmadis and the Yemeni Al-Akhdam are in need of protection.

Another glaring failure that does not seem to be mentioned much is the fact that this whole exercise has taken nearly 50 years to resume. We now have first and second generation immigrants, who have never known anywhere other than India as home! They are being told—thanks to a piece of paper or lack thereof—that they are now effectively stateless!

India, between 1950 and 1987, granted Indian citizenship to any baby born in India irrespective of their parents’ nationalities. This is the same as the US, for instance. They made it more difficult subsequently, so since July 1987 there was no automatic citizenship to someone born on Indian soil unless one parent was also an Indian national. This grew even more stringent in 2004 when the rule changed to both parents having to be Indian nationals, or else just one but the other could not be an illegal immigrant. We have effectively and successfully created stateless people within our borders with the attendant insecurities and vulnerabilities that go with being in that position.

In Sarbananda Sonowal (II) v Union of India, the Supreme Court bench comprising Justices SB Sinha and PK Balasubramanyan struck down on December 5, 2006, the Foreigners (Tribunals) Amendment Order, 2006. The Court thus established a constitutional requirement that the burden would always lie on the individual to rebut the allegation that he/she was a foreigner.

The Citizenship Bill violates India’s secular character since it expressly identifies Hindus, Sikhs, Buddhists, Jains, Parsis and Christians coming from Afghanistan, Bangladesh and Pakistan as being eligible for citizenship even if they entered the country illegally. Notably, this list leaves out Muslims. Although India is not a signatory to the 1951 UN Refugee Convention, India has always been hospitable to refugees, for example, the Tibetan community in Dharamsala.

India’s commitment to core international human rights instruments, such as the Universal Declaration of Human Rights and the Convention on the Elimination of All Forms of Racial Discrimination, combined with its own constitutional ethics, means that the country cannot ignore her duty to protect asylum seekers—irrespective of their religion. This protection must be extended to all those seeking refuge. The Citizenship Amendment Bill carries the danger of making discrimination a formal part of India’s refugee policy—completely altering our national character.

If the Citizenship Bill passes, this exercise will spread all across India, and Muslims will be at the receiving end. In the words of Senior Counsel Bader Sayeed: “This Amendment Bill creates serious problems and repercussions in the country. Inference from the Bill by itself is that the government is totally anti-Muslim. Other reasons are well-documented. I wish to remind the powers that be that the Muslims in an Islamic State suffer the harassment at the hands of the State—as the Ahmadias and Shia Muslims in Pakistan. Since there is so much antagonism against those belonging to Shia and Ahmadia community in Pakistan and importantly they basically are from the Indian sub-continent they cannot be excluded from asylum and citizenship from India. I am certain that this Bill calls for a serious look by the Judiciary.”

All the legal reasons why this Bill is unconstitutional and unethical have been examined above. However, if that is not sufficient, let us look at this practically in terms of the likely consequences: By disenfranchising a major segment of the population, we run the risk of fostering resentment among marginalised communities in our country.

The Roosevelt Institute studied the effects of disenfranchisement and just how negatively it impacts the entire Black community. Historically, there have been the untouchables in Japan (the Burakumin), China (the Tanka and the Uighurs), and anti-Semitism in most Eu­ropean countries, divisions within sects of Christians, the genocide of Native Americans in the US, and many other instances of so-called ethnic cleansing. The parallels are similar here and, frighteningly, our disenfranchised and stateless individuals currently numbering 19 lakh in Assam alone, are being put into detention centres. Are we all really going to stand by and watch this happen here in India to those who were born and raised within the Indian sub-continent?

Worse, this opens the door to every state to have its own version of the NRC and exclude non-Punjabis, Haryanvis, Biharis, Bengalis and so on. Maharashtra tried this in the 1960s and ’70s and all states could do it in the future. This opens a Pandora’s box of many forms of division and segregation, including colour prejudice, in our country.

We have separation of powers enshrined in our Constitution—it is time for the judiciary to do what it was designed to do and protect the people in this land and return the country to the secular, grand multi-cultural India that our forefathers envisioned.

There was a time—not long ago—when singing Jana Gana Mana used to give me a lump in my throat and my eyes would fill up with tears of pride—a fierce national pride. Born to a Hindu father, a Muslim mother and married to a Christian—I took pride in the fact that this country was mine. We ate and shared biryani on Eid and shared sweets and lit lamps on Diwali and sang carols and exchanged gifts at Christmas—and that was fine. Nobody had a problem with it.

Immigrants often make up the most hardworking sections of a society. A case in point are the Indian-origin Ugandans (Gujaratis mainly) who were assimilated and treated well by the British government—and have since made a massive contribution to the UK economy.

So, what does it mean to be Indian today? We used to be such an inclusive catch-all for anyone from this part of the globe, but now it seems to be at the whim and discretion of the party of the day. One hopes that the judiciary will provide a bulwark against this disturbing trend.

—The writer is Barrister-at-Law, Honourable Society of Lincoln’s Inn, UK, and a leading advocate in Chennai. With research assistance from Praveen PK

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