The Dilemma of the Undocumented in India: Thoughts from the National Register of Citizens

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In order to distinguish between genuine citizens – those who have documents, and those who lack sufficient documentary proof to demonstrate citizenship – a unique exercise of preparing a National Register of Citizens (NRC) was undertaken in the Indian state of Assam. A fundamental division between individuals whose legal status is secure and those whose isn’t was created by the final list, which was published in August 2019. This list resulted in the exclusion of two million people from NRC and divided the political community along different membership axes.

Assam, a state in the northeast of India, is home to many different ethnicities and cultures. The history and politics of Assam have been influenced by the various migration patterns involving tribals from central India who came to work on tea plantations during colonial period. Although there have been Muslims in Assam since the thirteenth century, the major migration of Bengali Muslims began after 1900. Bengali Hindus and Marwari traders also went to take advantage of the opportunities during the colonial era. In addition to altering Assam’s ethnic composition, these varied migrations fostered a political climate in which questions of ethnic identity, economics, and language protection became central. Historically, Assamese sub-nationalism, which started in the 1850s, seems to have focused on themes of autonomy and identity protection.  Though there have been many different types of immigration to this region in the past, the 1947 partition of India marked the beginning of a longer phase of population migration from East Pakistan.

Assamese concerns that Bengali Hindus and Muslims together would constitute a threat to the Assamese in Assam increased because of large-scale immigration from Bangladesh after 1971, which was when East Pakistan broke away from Pakistan and established an independent country. Assamese nationalism that began to take shape in the 1850s through political mobilisation by the Assamese on the issue of language and, later, on the issues of job and land protection, developed in its different manifestations in post-partition India. Concerns over the number of outsiders settling in Assam increased due to a perception that immigrants controlled politics and  acquired the necessary documents to become citizens.

The 1951 NRC, designed exclusively for Assam, was the first attempt at enumeration after India’s independence in 1947. Later, different policies were all clearly motivated by the need to identify outsiders. These included policies such as the Prevention of Infiltration Programme (PIP) in 1962, Assam police border units, the establishment of Foreigners’ Tribunals (FT), and the inclusion of the category of Doubtful (D) voters in the electoral lists in 1997, and classifying people as “D” voters whose citizenship credentials are in question.,. The porous borders and lack of data made it difficult to estimate the number of migrants, but contested estimates based on extrapolations from census data and election rolls continued to be significant.  In this setting, a cult of strong nationalism developed out of fear of minoritization, giving rise to the anti-immigrant movement in the 1980s.

The Assam movement of the 1980s that ended with the 1985 Assam Accord adopted a date-based system to determine citizenship claims. While the Indian constitution’s cut-off date for citizenship is July 19, 1948, Assam gained an exemption from the deadline with a revised cut-off date of March 24, 1971. The Assam Accord created a system that determined citizenship status based on the date of entrance. It recognised the citizenship of those who had arrived in Assam from what was then East Pakistan before January 1, 1966; those who arrived between January 1, 1966, and March 24, 1971, were subject to a 10-year disenfranchisement period, and those who arrived after March 24, 1971, were advised to be deported as illegal immigrants. It implied that people who had migrated before 1971 became citizens by default.  However, due to suspicion of more migration from Bangladesh as well as the several categories of migrants and their status in connection to various timelines adopted after 1985 Assam Accord, the debate over citizenship claims persisted despite the revised cut-off date. In 2009, Assam Public Works, an NGO, filed a petition requesting the court to order an update of the NRC and the removal of undocumented immigrants from the voter rolls.

In 2013, the Supreme Court ordered the updating of the NRC and started monitoring the process.  The Supreme Court bench of Justice Gogoi and Justice Nariman began holding regular hearings from December 2014 to oversee the procedure, consider requests for extensions, and determine which documents may be admitted as proof of citizenship. The process was designed in a manner where identity documents were conceptualised as evidence to transform a body, its past, and its particularity into a strong, legible proof symbolising legal triumphalism. 1 A customized software was utilised to determine citizenship claims and election rolls before 1971 and documents like the 1951 NRC were digitised for reference to determine citizenship claims. The idea was to locate genuine citizens by connecting personal data to legacy data.

List A mentioned 14 distinct types of documents that were dated before March 24, 1971, and List B included documents that might be used to establish a link with List A documents and prove descent from actual citizens. The “original inhabitants” that are referred to as native Assamese include people descended from tribes, but exclude Muslims, Bengalis, Nepalis, Hindi speakers, or Santalis, which were given certain relaxations to be included in the NRC. Indian nationals and their descendants were also eligible for registration.

Field verification of the data was done before it was validated in NRC offices. A family tree was computationally generated from the collected data and connected to digital copies of family trees submitted during data collection. The final NRC, which was issued on August 31, 2019, excluded two million people, including those whose cases were pending with foreigners’ tribunals (FT), those who were declared foreigners by foreigners’ tribunals (FT), doubtful (D) voters, and their descendants.

Documents are fragile and unstable; they can be presented, accepted, and approved at any time, but they can also be overturned, taken away, and withdrawn. Different documents are used as appendices to one another depending on the situation because there are no rules that definitively state which document can be used as proof of Indian citizenship. The process was designed to place the burden of proof on the people, but the state reserves the ability to revoke citizenship, question the validity of the documents and evidence submitted, and disregard occasionally major documentation mistakes made by state bureaucratic systems. Thus, in some cases, despite meeting the cultural, birth, descent, and temporal criteria for citizenship, people remain undocumented because of document mismatches, problems in legacy data, absence of required documents, and/or errors in documents.

The NRC registration indicated a wish for persons who were living in the shadow of being illegal immigrants to be both visible and invisible—visible because having documentation meant being formally “seen” and invisible because, after having documentation, they were one with the masses, a way of overcoming decades of humiliation. They were aware of documents’ physical qualities and presumed effects; thus, their emotional investments in documents were intertwined with their material form with all possible efforts made to manage document before the 1970s. However, if some families can exercise agency in acquiring documents, others seem to inhabit a position of hopelessness.

Apart from factors that include ignorance, poverty, and illiteracy, one of the significant hurdles to obtain paperwork in some parts of Assam was the geographical location of river islands (Chars), where official government infrastructure may not be readily accessible or may not exist at all. Many individuals lost everything during the Brahmaputra River’s massive flood. Many people, including women, children, and orphans, were excluded from the final list that was released on August 31, 2019, due to a lack of proof. Many transgender people were rejected because their names and gender identities didn’t match because the majority of transgender people had changed their names and decided on a gender identification that wasn’t officially documented.

Matthew S. Hull claims that documents serve as “vehicles of information” that mediate relationships between citizens and the government.2   Whether citizenship is transferred by parental blood (jus sanguinis) or from the soil in which a person is born (jus soli), it is made actual and effective by the documents, or “jus charta/tabulae,” and the absence of documents makes a person invisible and stateless. The evidentiary role of documents is so pervasive that, due to some mismatch, some members of the same family were identified as citizens while others were designated as “D” voters. There have also been cases where parents were listed in the NRC, but the status of their children was in doubt.

Theoretically, legal identity as a right ‘exists regardless of whether one has a document to prove citizenship’ because ‘official, government issued and recognized documents…do not confer legal identity; they merely confirm it’.4 The effects of the NRC proved that documents as evidentiary proof are powerful. Their absence disqualifies a person from citizenship, denies the protection available to legal stateless people, and leads to ‘effective statelessness’.5

Documents occupy a central role in understanding statelessness, taking two conceptually distinct forms — the lack of legal identity and the inability to prove legal identity.6   Discussing the difference between people who lack legal identity and those who lack the ability to prove legal identity, Jacqueline Bhabha argues that there are two categories to consider: people who lack legal identification may be regarded as “deportable” by the law, using De Genova’s definition, whether they are foreigners or internal migrants,7 and people who lack the ability to prove legal identity, which consists of nationals and locals immune from deportation yet unrecognized in the country where they live and, sometimes, have always lived.

Two million undocumented people that include people from different communities swing between being excluded and being included. Their lived experience is an example of ‘membership in the breach’, which is a state of being that threads ‘the gap between formal and informal forms of belonging.’8 They are on the margin of inclusion and exclusion due to their lack of documentation, but because there are no deportation procedures in place, they are not stateless and are permitted to stay in the country while straddling legality and illegality. They are undocumented but not deportable because Bangladesh views the NRC as an internal matter of India.

These two million undocumented experience ‘liminal statelessness,’ which may result as an inability to prove citizenship due to a lack of identification documents, an inability to get identification documents, or a discrepancy in documents. The liminality originates from a state of ambiguous legality. They are not citizens, yet they are not necessarily border-crossers, but their ambiguous legal position forces them into prolonged states of uncertainty.

This analysis also emphasises the role of law and the nation-state in constructing identity at different scales, because while people negotiate membership, exclusion, and discrimination, their positionality as undocumented illustrates their helplessness in the evidentiary regime established by the state. In light of this, the Citizenship Amendment Act (CAA) 2019 adds yet another layer of exceptions that give Hindu, Sikh, Buddhist, Jain, Parsi, or Christian immigrants the chance to become citizens by favouring citizenship status for persecuted minorities from Pakistan, Bangladesh, and Afghanistan. These categories of the law create fractured forms of belonging by allowing members of some other religious communities to become citizens in the absence of documents, while leaving it up to Muslims to prove their citizenship claims.

The NRC is still not final and due to potential suspicion of the registration of illegal immigrants, the Assam state seeks re-verification of 20% of the data in border districts and 10% in other districts. The exclusion of Bengali Hindus and tribes from the NRC particularly incensed the ruling BJP, and in its state election manifesto for 2021, it proposed a “correct” NRC. Assam Public Works, which filed a case in the Supreme Court that led to this exercise, also condemned the final NRC as a “flawed document”. 9

The status of the two million people excluded from the NRC is unclear approximately three years after the rollout of the NRC. They are awaiting a rejection order that details the grounds for exclusion before filing an appeal in FTs.  In a world divided between nations, when the state’s capacity to expel is restricted, their physical presence within the state, due to the lack of any deportation procedures, legitimises their presence. However, because of their ambiguous legal status and the lack of legal recognition, they are forced to live in situations of extended ambiguity. They engage in the routines of daily life like citizens and yet move between the multiple meanings of citizenship and statelessness. The two million people thrown into this unclear and paralysing area get trapped, affecting multiple generations. Even though they are neither citizens nor stateless in the conventional sense and may have been severely affected by traumatic events, they continue to participate as active social agents who defend their rights while juggling their fragile circumstances. These people’s daily lives are permeated by the uncertainty and their unwavering search for inclusion as they have waited since 2019 for the rejection orders that would explain their exclusion from the NRC.

 

 

References

  1. Reddy, Malavika, ‘Identity paper/works and the unmaking of legal status in Mae Sot, Thailand’ Asian Journal of Law and Society 2(2), 2015: 251–266. doi.org/10.1017/als.2015.16.
  2. Hull Mathew, Government of Paper the Materiality of Bureaucracy in Urban Pakistan. (London: University of California Press, 2012), p. 257.
  3. Sadiq Kamal, ‘Limits of legal citizenship: Narratives from South and Southeast Asia’ In Lawrence N Benjamin and Stevens Jacquelin (eds) Citizenship in Question Evidentiary birth right and Statelessness. (Durham and London: Duke University Press, 2017) p.175.
  4. Vandenabeele Caroline, ‘To register or not to register? Legal identity, birth registration, and inclusive development’ In Jacqueline Bhabha (Ed.) Children without a state: A global human right challenge (Cambridge: The MIT Press, 2011), p 307.
  5. Bhabha Jacqueline, ‘From citizen to migrant: The scope of child statelessness in the twenty-first century’ In Bhabha Jacqueline (Ed.), Children without a state global human rights challenge (Cambridge: The MIT Press, 2011), p 5.
  6. Bhabha Jacqueline, ‘From citizen to migrant: The scope of child statelessness in the twenty-first century’ In Bhabha Jacqueline (Ed.), Children without a state global human rights challenge (Cambridge: The MIT Press, 2011), p 13.
  7. De Genova, Nicholas P, ‘Migrant ‘Illegality’ and deportability in everyday life’ Annual Review of Anthropology 31(1), 2002, pp.419-447.
  8. Coutin, C B Susan,  ‘In the breach: Citizenship and its approximations’ Indiana Journal of Global Legal Studies, 20, 2013, p.112.
  9. Kalita Prabin, ‘19 lakh left out, final Assam NRC elicits anger & sense of betrayal’ The Times of India, 1 September 2019.

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