M. MOHSIN ALAM BHAT
IN the last three decades the Indian state has created a multitude of legal norms for identifying foreigners in the state of Assam. The National Register of Citizens (NRC) published on 31 August 2019 states that more than 1.9 million persons now stand at the verge of statelessness. Assam’s Foreigners Tribunals have already declared more than 100,000 persons as foreigners. Thousands more await their fate as they attempt to establish their citizenship in these tribunals or in appeals to higher courts.
The complex web of legality has made the status of numerous residents of the state precarious by subjecting them to arcane rules and procedures. The border police are legally required to conduct a thorough investigation before they refer suspected foreigners to the tribunals. But in practice they have consistently disregarded legal requirements, raising serious concerns that they are targeting citizens. The report on the functioning of tribunals is dismal. Their members have little or no judicial experience, their orders are arbitrary and opaque, and the institution is perilously susceptible to political interference.
The Indian state claims that these procedures filter the non-citizen from the citizen. But the scale of due process violation has made citizenship of many vulnerable to arbitrary official discretion. I argue there is more at stake. Beyond engendering precarious citizenship for the most vulnerable, it threatens to undo India’s citizenship altogether. Citizenship is meant to provide security of status and a guarantee of rights. In a democratic state based on popular sovereignty – the sovereignty of We the People – it provides the grounds of political legitimacy. The web of legality is pushing this conception of citizenship to the very brink.
The contemporary character of the state’s approach to suspected immigration in Assam began to emerge in the late 1990s. Under the 1985 Assam Accord, immigrants who entered Assam before 24 March 1971 were given a route to citizenship. The central government made a political commitment to identify those who came to the country after the date, delete them from the electoral rolls, and ‘expel’ them in accordance with law. While the legal infrastructure of tribunals and the border police was already in operation, the state considerably expanded and strengthened it.
In 1997, the Election Commission on its own accord and without any transparent process marked 370,000 voters as ‘doubtful’. The state asked them to prove their citizenship in the tribunals. Next year in November, governor Lt Gen S.K. Sinha sent an unprecedented report to the President arguing that the central and state government had failed to address the influx of illegal Bangladeshi migrants that threatened the identity of the Assamese people and national security.1
Sinha’s report was seeped in the vocabulary and imperative of war. According to him, immigration was a ‘silent demographic invasion’, which would rapidly proliferate Islamic fundamentalism and split the region from India. ‘There is an imperative need,’ Sinha insisted, ‘to evolve a national consensus on this all important threat facing the nation.’
While the consensus took some time to evolve, it was the country’s Supreme Court that led the way. As recommended by Sinha, the court struck down the Illegal Migrants (Determination by Tribunals) or IMDT Act 1983 in the 2005 case of Sarbananda Sonowal. It noted that by placing the burden of proof – the obligation to provide evidence – on the state rather than the person claiming to be a citizen, the act had made the detection of foreigners ‘not only difficult but virtually impossible.’ This was certainly not true. Government data showed that the tribunals under the act had declared thousands as foreigners. The court justified this on the basis of a large statistic of foreigners in Assam. These numbers have since been discredited as inflated and baseless.2
Behind the court’s hyperbole was the desire that more persons must be declared foreigners. The foundation of the judgment was the imperative of war it borrowed from Sinha’s report. The court gave the imperative a clearer constitutional status. It held that illegal migration from Bangladesh amounted to external aggression against the country. The rising number of Muslims in the state indicated a demographic invasion. It was causing an insurgency among the state’s residents. The IMDT Act was unconstitutional because it failed to protect the state against external aggression and internal disturbance, which was the core obligation of the central government under the Constitution. The burden of proof was to be shifted onto the claimant. Extraordinary circumstances deserved extraordinary legal remedies.
This language of exceptionalism – mostly subterranean in judicial decisions – often bursts out in the open. For instance, the law requires that once a court settles a dispute, the principle of res judicata would bar other courts to hear the same matter. Among the thousands who have been referred to the tribunals, many have had to prove their case repeatedly even after being declared citizens in previous proceedings. In 2018, a two-judge bench of the Guahati High Court refused to extend this principle to foreigners’ tribunals.3
Invoking Sarbananda Sonowal, the bench held that the proceedings before the tribunals were ‘sui generis’ because Assam was facing external aggression and internal disturbance. National security and integrity of the nation demanded that the state ‘preserve the demographic balance of a part of India.’ All principles of public policy stood ‘subsumed’ under this ‘overarching public policy governing a sovereign nation.’ The ‘large scale illegal migration of foreigners’ threatened the character of the sovereign people. It was an existential crisis that demanded exceptional state action.
The Sarbananda Sonowal judgement lays down questionable standards of evidence. The judgment results in a presumption of non-citizenship. This is a starkly ill-suited policy for a value like citizenship, which is the very basis of legal personality within the constitutional community. The serious consequences for an individual – that included the possibility of being rendered stateless – would mandate higher legal standards for the state, and not the other way around.
The court placed unrealistic – even cruel – evidentiary demands on people who are often poor, illiterate and without access to government documents. Since the judgment, thousands have been declared foreigners without their presence in the tribunals in ex parte proceedings. Many declared foreigners have complained that they never received notices. Others were unable to meaningfully participate in the proceedings. Daily wage workers could not risk missing a precious day’s remuneration. Many others could not afford lawyers to represent them.
The practices of Foreigners Tribunals have further deepened the crisis. The border police officials who refer a case to the tribunal must have grounds for suspecting someone to be a foreigner.4 The tribunals rarely if ever permit lawyers representing precarious citizens to cross-examine them. By doing so, they preclude the only line of legal defence.
It is also becoming evident that the tribunals are far from independent. The ministry of home affairs employs the tribunal members. The appointments are contractual, and their renewal depends upon the assessment of the government. It is a public secret that the performance is measured in the numbers of declared foreigners.5
Since Sarbananda Sonowal, the Indian institutions have turned citizenship into merely a question of evidence. Citizenship status – despite its fundamental importance for a polity – was now a banal inquiry of facts in individual cases. It was now to be solely weighed in documents.
The Supreme Court’s initiation of the NRC in 2014 was but a reflection of this trend. The process demanded that all the residents of Assam submit documents from a list of authorized public documents. The state essentially operated with the assumption that all the residents were foreigners unless they succeeded in establishing their citizenship. The central government’s intention of creating the National Register of Indian Citizens will be the culmination of this transformation of citizenship – from normative political membership, to scales of documentary evidence.
Paradoxically, state institutions have also simultaneously robbed documents of all their evidentiary value. During the tribunal proceedings, precarious citizens have to provide public documents to establish that they were either born in or immigrated to Assam, on or before 24 March 1971. If not, they have to establish ancestral linkage with those who did. Thus, precarious citizens are invariably required to procure old and inaccessible documents, many of which have been recorded and maintained by the state.
These sensitivities have not stopped the tribunals from relying on technicalities like minor errors in spellings and dates to declare persons foreigners. They often provide little or no time for procuring certified copies of public documents. They have often refused to accept public documents without the issuing government authorities testifying to their authenticity in person. While they place this demand on precarious citizens, the tribunals refuse to issue summons to government officials to mandate their presence.
This pattern of undermining evidence has had the most severe impact on women. Most women before the tribunals are illiterate and poor, and by implication without documents like school certificates or property deeds. They are also married at a young age, and hence separated from their parents and places of birth. Certificates drawn by the village councils or gram panchayats are often the only viable documents that they can produce to establish their citizenship.
In February 2017, the Guahati High Court refused to recognize these documents ‘in national interest’, threatening the status of more than 400,000 women in the state. The High Court noted that the creation of new documents contradicted the imperative of resisting ‘external aggression’ and ‘internal disturbance’.6 Within months, the Supreme Court reversed the decision, holding that the certificates may be accepted as linkage documents provided the authenticity of the document and its contents is confirmed.7 Despite this, the High Court and the tribunals by extension have undermined their evidentiary value. They continue to demand that the authors of the certificates depose before the tribunals, and prove them on the basis of contemporaneous record.8
This reveals the paradoxical nature of the citizenship process in Assam. The Indian state has made citizenship contingent on documents. But the documents appear to melt away under the intensity of the bureaucratic gaze.9 It has made evidence peremptory, just as its practices have undermined its integrity and reliability.
Until now, state institutions have directed the citizenship process only against certain sections of the population. It has marked the Bengali and the Muslim as the suspected foreigner, and hence most vulnerable to precarious citizenship. But the state may weaponize citizenship against the others. The fact that Assam’s NRC excluded many other communities – women, the poor, transgenders, the tribal, the Gorkhas, internal migrant workers – proves that no one is outside the pale of vulnerability.
Where does this leave citizenship? If these are the legal standards of citizenship, can any citizen meet them? The answer is an unsettling one: No. The web of legality has made some more vulnerable to precarity. But in the process it has rescinded citizenship altogether. This resembles what Carl Schmitt had famously described as the state of exception, as when ‘the state suspends the law in the exception on the basis of its right of self-preservation.’10 The Indian state and its institutions have asserted an existential threat against the popular sovereign and the state. And then, used the imperative of war to create a regime of exceptionalism where citizenship appears to be withering away.
The citizenship processes in Assam are a deviation from due process. We may even describe the irregular behaviour of institutions as recalcitrant. But the systematic devaluation of citizenship hidden within the complex web of legality also indicates that citizenship itself has become inoperative. As Georgio Agamben reminds us, ‘the state of exception is not the chaos that precedes order but rather the situation that results from its suspension.’11 The state is claiming to preserve citizenship. But it is turning it into twilight citizenship.
1. ‘Report on Illegal Migration into Assam’, submitted to the President of India by the Governor of Assam, 8 November 1998, https://www.satp.org/satporgtp/countries/india/states/assam/documents/papers/illegal_migration_in_assam.htm
2. Debarshi Das and Prasenjit Bose, ‘Assam NRC: Government Clueless About How Many Illegal Immigrants Actually Live in India, RTI Shows’, https://www.huffington-post.in/2018/11/16/assam-nrc-govt-clueless-on-how-many-illegal-immigrants-actually-live-in-india-rti-shows_a_23591448
3. Amina Khatun v. Union of India, Writ Petition (Civil) No. 7339 of 2015, Gauhati High Court, order dated 19.04.2018.
4. Moslem Mondal v. Union of India, 2010 (2) GLT 1.
5. Amnesty International India, ‘Designed to Exclude: How India’s Courts are Allowing Foreigners Tribunals to Render People Stateless in Assam’, pp. 26-29 (2019), https://amnesty.org.in/wp-content/uploads/2019/11/Assam-Foreigners-Tribunals-Report-1.pdf
6. Manowara Bewa v. Union of India, Writ Petition (Civil) No. 2634 of 2016, Gauhati High Court, judgment dated 28.02.2017.
7. Rupjan Begum v. Union of India reported, (2018) 1 SCC 579.
8. Abdul Samad v. Union of India, Writ Petition (Civil) 7088/2016, Gauhati High Court, judgment dated 14.05.2018.
9. For a discussion on how the Indian bureaucratic state deals with documents, see Nayanika Mathur, Paper Tiger. Cambridge University Press, 2016.
10. Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty. University of Chicago Press, Chicago, 2005, p. 12.
11. Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life. Stanford University Press, 1998, p. 18.