Mains Paper : Polity
Prelims level: NRC
Mains level: NRC and Foreigners Tribunals
On June 8, upon the orders of the Gauhati High Court, Mohammad
Sanaullah was released on bail from a detention camp in Assam.
He had been detained on May 29, after a Foreigners Tribunal had
declared him an illegal immigrant.
The Gauhati High Court’s bail order came after a week of sustained
public pressure, occasioned by the revelation that Mr. Sanaullah had served
for three decades in the Indian Army.
NRC, Foreigners Tribunals
According to the Assam Accord, individuals who entered Assam after
March 24, 1971 are illegal immigrants.
There are two parallel processes to establish citizenship: the
Foreigners Tribunals operating under the Foreigners Act, and the National
Register of Citizens (NRC), which is under preparation.
While nominally and formally independent, in practice, these two
systems bleed into each other, with people who have been declared as
foreigners by the Foreigners Tribunals, and even their families, dropped
from the draft NRC.
For something as elemental and important as citizenship, one would
expect these systems to be implemented as carefully as possible, and with
This is especially true when we think of the consequences of being
declared a non-citizen: disenfranchisement, exclusion from public services,
incarceration in detention camps, statelessness, and deportation.
Before treating an individual a human being to such drastic
consequences, the very least a humane and civilised society can do is to
ensure that the rule of law has been followed to its last degree.
In the reality
In a vast number of cases, the legally mandated initial inquiry
before an individual is dragged before a tribunal as a suspected “foreigner”
simply does not happen indeed, it did not happen for Mr. Sanaullah.
The Tribunals themselves are only constrained by a very limited
number of procedural safeguards.
This has led to situations where Tribunals have issued notices to
entire families, instead of just the suspected “foreigner”.
Additionally, reports show that Foreigners Tribunals habitually
declare individuals to be “foreigners” on the basis of clerical errors in
documents, such as a spelling mistake, an inconsistency in age, and so on.
The hardest hit by this form of “justice” are the vulnerable and
the marginalised, who have limited documentation at the best of time, and
who are rarely in a position to correct errors across documents.
On occasion, orders determining citizenship have been passed by
tribunals without even assigning reasons, a basic sine qua non of the rule
In addition, a substantial number of individuals are sent to
detention camps without being heard on the basis of ex parte orders and the
detention centres themselves are little better than concentration camps,
where families are separated, and people not allowed to move beyond narrow
confined spaces for years on end.
To improve the process of NRC
The process under the NRC is little better. Driven by the Supreme
Court, it has been defined by sealed covers and opaque proceedings.
In a behind-closed-doors consultation with the NRC Coordinator,
the Supreme Court developed a new method of ascertaining citizenship known
as the “family tree method”.
This method was not debated or scrutinised publicly, and ground
reports found that people from the hinterland were not only unaware of the
method, but those who were aware had particular difficulties in putting
together “family trees” of the kind that were required (the burden fell
disproportionately upon women).
And recently, it was found that a process by which individuals
could file “objections” against people whose names had appeared in the draft
NRC and on the basis of which these people would be forced to once again
prove their citizenship had resulted in thousands of indiscriminate
objections being filed, on a seemingly random basis, causing significant
hardship and trauma to countless individuals.
However, when the people coordinating these “objections” were
contacted, they brushed it off by saying that it was mere “collateral
damage” in the quest to weed out illegal immigrants.
The role of the judiciary
In a process riddled with such flaws, and where the consequences
are so drastic, one would expect the judiciary, the guardian of fundamental
rights and the guarantor of the rule of law, to intervene.
Instead, the Supreme Court, led by the present Chief Justice of
India, has played the roles of cheerleader, midwife, and overseer.
Not only has it driven the NRC process, as outlined above but it
has repeatedly attempted to speed up proceedings, pulled up the State
government when it has asked to be allowed to release people detained for a
long time, and instead of questioning procedural violations and infringement
of rights, has instead asked why more people are not in detention centres,
and why more people are not being deported.
Most egregiously, the Court even used a PIL about the inhumane
conditions in detention centres in order to pursue this project.
Focus the spotlight
Mohammad Sanuallah is, for now, a free man.
But a society in which his case is the exception instead of the
rule, where it needs a person to be an ex-Army man, and his case pursued by
national media for a full week before interim bail is granted, is a society
that has utterly abandoned the rule of law.
Yet Mr. Sanaullah’s case can do some good as well: it can prompt
some urgent national introspection about a situation where, in the State of
Assam, thousands of people languish in detention camps for years, victims of
a process that, to use an old adage, would not be sufficient to “hang a dog
If anything can trigger an urgent and imperative call for change,
surely this will and must.
However, what the Supreme Court has failed to understand is that
in questions of life and death, where the cost of error is so high, it is
not “speed” that matters, but the protection of rights.
But through its conduct, the Supreme Court has transformed itself
from the protector of the rule of law into an enthusiastic abettor of its
And the Gauhati High Court has been no better, passing a bizarre
and unreasoned order stating that it would be a “logical corollary” that the
family members of a declared foreigner would also be foreigners, on the
basis of which the border police have sent the names of entire families to
This is the very antithesis of how constitutional courts should