In-Built Discrimination in NRC Procedures; Disproportionately Excludes Religious, Linguistic Minorities: 48 Former Civil Servants in Open Letter
The letter adds that the ill-advised decision of the Modi govt to push the flawed Citizenship Bill has added fuel to the fire.
Our group of former civil servants of the All India and Central Services has, over the last twenty months, issued a number of letters expressing our concern at the erosion of constitutional values in the country and the weakening of institutions entrusted with ensuring the functioning of a healthy democracy. As in our earlier letters, we reiterate our allegiance to the Constitution of India and clarify that we neither have a political agenda nor are we linked to any political party
The complete draft of the National Register of Citizens (NRC) in Assam was published on 30 July 2018, leaving over 40 lakh persons ineligible, making up some 12 per cent of the total applicants. There is a real fear among those excluded – overwhelmingly from minority groups, both Muslims and Hindus of Bengali descent, besides Nepali and Hindi-speaking persons, among them a large percentage of women, children and daily wage workers, constituting the poorest of the poor – that they might be rendered stateless.
Although the NRC process is being monitored by the Supreme Court (SC), we believe there has been little informed debate in the country on the NRC updation that affects the lives of lakhs of persons; there is also no clarity on what the legal status and fate of those excluded from the final NRC will be, at the end of this court-monitored process. The large exclusion of names from the draft NRC is the outcome of a mix of procedural and capacity weaknesses of the NRC State Coordinator and has been much reported about. The shortcomings include poor record management, technical glitches and arbitrary physical verifications, among others. Central to the exclusion from the NRC, disproportionately, of linguistic, religious and gender minorities, however, is also the in-built discrimination in rules and procedures, segregating populations into ‘original’ and ‘non-original’ inhabitants and the use of differential standards to verify claims and supporting documents for the two categories. The SC has endorsed this segregation of applicants into so-called ‘original’ and ‘non-original’ inhabitants and has also approved automatic inclusion of ‘original’ inhabitants in the draft NRC while, on the other hand, decreeing a two-step process of ‘exhaustive’ and ‘thorough’ verification for applicants deemed ‘non-original’. Without any definition or directions to determine who the ‘original’ inhabitants of Assam were, ‘non-original’ applicants, in practice, have been taken to mean mostly Bengali and Nepali-speaking persons and other minorities.
Those aggrieved by their non-inclusion in the draft NRC had the right to file claims and objections (C&O) till 31 December 2018. But this does not seem to provide redress against the already built-in discriminations, exacerbated by the rather liberal provisions for filing objections against wrongful inclusion, which include removing the bar on the number of objections, doing away with the requirement of the objector being a local resident and removing the penalty against false and frivolous objections. Not surprisingly, media reports appear to indicate that, in the final hours of receipt of C&O, the number of objections against inclusion in the final NRC jumped from a mere 6000 to 3 lakhs.
Those not satisfied with the NRC C&O results have the option to appeal to Foreigners Tribunals (FTs), based on whose decisions, the final inclusion in NRC will be decided. FTs use the Foreigners Act, 1946 to test claims to citizenship, wherein the burden of proof is on those proceeded against. These are heavily weighted against so-called ‘suspected foreigners’ without providing them any statutory rights. In practice, by shifting the burden of proof on those proceeded against, they set the bar too high, with likely severe consequences, as those affected by the NRC exclusion are mostly poor and illiterate, and government record keeping is neither efficient nor accessible.
Those excluded from the final NRC will face the risk of being declared foreigners and locked up in detention centres. With Bangladesh or any other country not recognising those excluded from the NRC as their citizens, nor there being any repatriation treaty between India and Bangladesh, these detentions will potentially be indefinite. The six detention centres in Assam currently house, between them, over a thousand persons declared as foreigners. Providing an early warning of the shape of things to come, a recent enquiry by the National Human Rights Commission (NHRC) into these detention centres provides a chilling account. It speaks of the absence of a legal regime governing rights of the detainees, indefinite incarcerations and accompanying vulnerabilities suffered by detainees, the lack of any legal redress whatsoever and the sheer hopelessness of the detainees’ condition.
Even while the exercise to finalise the NRC is going on, the ill-advised decision of the Government of India to push a flawed Citizenship (Amendment) Bill through Parliament has added fuel to an already simmering fire. This has already led to a storm of protest in the NorthEastern states and will further vitiate the NRC process. Not only will this proposed legislation exacerbate local tensions between ‘indigenous’ and ‘migrant’ populations, it also appears to be clearly violative of Article 14 of the Constitution, denying as it does “equal protection of the laws within the territory of India” to all persons, irrespective of citizenship.
Having dealt with such issues during our careers in public service, the signatories would like to offer some constructive suggestions which meet the norms of constitutional principles and human rights, while also giving a measure of comfort to the indigenous populations that perceive a threat to the continuation of their culture and traditions:
(1) We would request the SC to order a review of the NRC C&O modalities and their implementation, so as to prevent them being discriminatory against so-called ‘nonoriginal’ inhabitants, usher in transparency in the proceedings and involve persons of eminence, drawn nationally, to act as independent observers, supporting the Supreme Court to deliver a just and fair final NRC. We recommend a system akin to that fruitfully used by the Election Commission of India, of senior officers of the Government of India acting as independent observers in each district.
(2) The Assam government should review the working of the FTs to make them effective judicial fora for redress for those likely to be aggrieved by NRC C&O outcomes. This should include both a review of the relevant laws under which FTs operate – ensuring that the proceedings will allow those proceeded against a measure of statutory rights, following due process – besides ensuring that FTs themselves are shielded from extraneous pressures.
(3) The Assam government should review the working of detention centres for ‘declared foreigners’, enforce safeguards against arbitrary, discriminatory and indefinite detention, and align procedures and practices to principles of natural justice and to international norms and standards. There should be regular third-party inspections by the NHRC and independent organisations to check human rights violations and to monitor the functioning of the camps.
(4) The Government of India should, at the earliest, commence discussions with neighbouring countries, especially Bangladesh, on the future status of those finally established as “illegal migrants”. Sincere efforts should be made to arrive at an understanding that resolves the present issue, addresses future concerns and seeks to mitigate the hardship and sufferings of those who are declared “illegal migrants”. The Government of India should also examine measures to ensure that the burden of “nonnationals” is shared by different states, and not left for Assam to shoulder alone.
The Government of India should, at the earliest, clarify, so as to clear the air, its position on the legal status of those who will stand excluded from the final NRC, and what the future holds for them. To prevent their being made “stateless”, thus depriving them of the basic human right to a nationality, Government of India must, where extradition of “non-citizens” is not possible, declare a pathway to citizenship for those excluded. This must take into account, in this passage of 47 years since the cut-off date (of 25th March, 1971), children born and families established in their places of residence.
(6) The Government of India should desist from any planned changes to national laws and procedures concerning citizenship that, in so far as they make citizenship contingent on religious affiliation, are discriminatory and violative of the equality provisions of the Constitution, apart from threatening to derail the intent of NRC updation.
Long-pending problems call for innovative solutions. These require the cooperation of all stakeholders in the democracy that is India, in a spirit of compassion, trust and respect for the dignity of the individual. We are suggesting some steps for coming to grips with the issues confronting us today. We appeal to all citizens concerned with the development of a healthy democracy to debate the issues raised by us in the hope that we are able to evolve workable solutions in the near future.
1. Salahuddin Ahmad, IAS (Retd.), Former Chief Secretary, Rajasthan 2
. V.S. Ailawadi, IAS (Retd.), Former Vice Chairman, Delhi Development Authority
3. S.P. Ambrose, IAS (Retd.), Former Additional Secretary, Ministry of Shipping & Transport, GoI
4. Mohinderpal Aulakh, IPS (Retd.), Former Director General of Police (Jails), Govt. of Punjab
5. Vappala Balachandran, IPS (Retd.), Former Special Secretary, Cabinet Secretariat, GoI
6. Gopalan Balagopal, IAS (Retd.), Former Special Secretary, Govt. of West Bengal
7. Chandrashekhar Balakrishnan, IAS (Retd.), Former Secretary, Coal, GoI
8. Madhu Bhaduri, IFS (Retd.), Former Ambassador to Portugal
9. Ravi Budhiraja, IAS (Retd.), Former Chairman, Jawaharlal Nehru Port Trust, GoI
10. Sundar Burra, IAS (Retd.), Former Secretary, Govt. of Maharashtra
11. Kalyani Chaudhuri, IAS (Retd.), Former Additional Chief Secretary, Govt. of West Bengal
12. Anna Dani, IAS (Retd.), Former Additional Chief Secretary, Govt. of Maharashtra
13. Surjit K. Das, IAS (Retd.), Former Chief Secretary, Govt. of Uttarakhand
14. Vibha Puri Das, IAS (Retd.), Former Secretary, Ministry of Tribal Affairs, GoI
15. Pradeep K. Deb, IAS (Retd.), Former Secretary, Deptt. Of Sports, GoI
16. Keshav Desiraju, IAS (Retd.), Former Health Secretary, GoI
17. M.G. Devasahayam, IAS (Retd.), Former Secretary, Govt. of Haryana
18. Gourisankar Ghosh, IAS (Retd.), Former Mission Director, National Drinking Water Mission, GoI
19. S.K. Guha, IAS (Retd.), Former Joint Secretary, Department of Women & Child Development, GoI
20. Meena Gupta, IAS (Retd.), Former Secretary, Ministry of Environment & Forests, GoI
21. Wajahat Habibullah, IAS (Retd.), Former Secretary, GoI and Chief Information Commissioner
22. Sajjad Hassan, IAS (Retd.), Former Commissioner (Planning), Govt. of Manipur
23. Siraj Hussain, IAS (Retd.), Former Secretary, Department of Agriculture, GoI
24. Dr. M.A. Ibrahimi, IAS (Retd.), Former Chief Secretary (rank), Govt. of Bihar
25. Najeeb Jung IAS (Retd.), Former Lieutenant Governor, Delhi
26. Rahul Khullar IAS (Retd.), Former Chairman, Telecom Regulatory Authority of India
27. Brijesh Kumar, IAS (Retd.), Former Secretary, Department of Information Technology, GoI
28. P.K. Lahiri, IAS (Retd.), Former Executive Director, Asian Development Bank
29. Harsh Mander, IAS (Retd.), Govt. of Madhya Pradesh
30. Aditi Mehta, IAS, (Retd.), Former Additional Chief Secretary, Govt. of Rajasthan
31. Noor Mohammad, IAS (Retd.), Former Secretary, National Disaster Management Authority, Govt. of India
32. Deb Mukharji, IFS (Retd.), Former High Commissioner to Bangladesh and former Ambassador to Nepal
33. Shiv Shankar Mukherjee, IFS (Retd.), Former High Commissioner to the United Kingdom
34. Niranjan Pant, IA&AS (Retd.), Former Deputy Comptroller & Auditor General of India
35. K. Rajivan, IAS (Resigned), Former Director, Prime Minister’s Office, GoI
36. M.Y. Rao, IAS (Retd.)
37. Deepak Sanan, IAS (Retd.), Former Principal Adviser (AR) to Chief Minister, Govt. of Himachal Pradesh
38. S. Satyabhama, IAS (Retd.), Former Chairperson, National Seeds Corporation, GoI
39. N.C. Saxena IAS, (Retd.), Former Secretary, Planning Commission, GoI
40. Abhijit Sengupta, IAS (Retd.), Former Secretary, Ministry of Culture, GoI
41. Aftab Seth, IFS (Retd.), Former Ambassador to Japan
42. Ashok Kumar Sharma, IFS (Retd.), Former Ambassador to Finland and Estonia
43. Raju Sharma, IAS (Retd.), Former Member, Board of Revenue, Govt. of Uttar Pradesh
44. K. Ashok Vardhan Shetty, IAS (Retd.), Former Vice Chancellor, Indian Maritime University, GoI
45. Narendra Sisodia, IAS (Retd.), Former Secretary, Ministry of Finance, GoI
46. Thanksy Thekkekera, IAS (Retd.), Former Additional Chief Secretary, Minorities Development, Govt. of Maharashtra
47. Hindal Tyabji, IAS (Retd.), Former Chief Secretary rank, Govt. of Jammu & Kashmir
48. Ramani Venkatesan, IAS (Retd.), Former Director General, YASHADA, Govt. of Maharashtra