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The Hindu Editorial Analysis | PDF Download

Date: 05 February 2019

 

A national register of exclusion

There are few parallels anywhere else of the state itself producing statelessness in the manner that it is doing in Assam

  • By requiring long-term residents of Assam to prove their citizenship by negotiating a thicket made up of bewildering and opaque rules and an uncaring bureaucracy, the Indian state has for the past two decades unleashed an unrelenting nightmare of wanton injustice on a massive swathe of its most vulnerable people. Distressing cycle
  • The official presumption that they are foreigners has reduced several million of these highly impoverished, mostly rural, powerless and poorly lettered residents to a situation of helplessness and penury.
  • It has also caused them abiding anxiety and uncertainty about their futures. They are required to persuade a variety of usually hostile officials that they are citizens, based on vintage documents which even urban, educated, middle-class citizens would find hard to muster. And even when one set of officials is finally satisfied, another set can question them. And sometimes the same official is free again to send them a notice, starting the frightening cycle afresh.
  • On February 2 and 3, I was in Guwahati listening to heart-breaking accounts from 53 people from 13 districts of Assam.
  • This was as part of a people’s tribunal on the National Register of Citizens (NRC), along with Justice Venkate Gopala Gowda, Colin Gonsalves, Monirul Hussain and Sanjoy Hazarika.
  • What emerged were numbing stories of unyielding official bias and arbitrariness, of the denial of elementary “due process” and, above all, the complete absence of public compassion. Even old men frequently broke down as they spoke of all that they had endured.
  • “It emerged that the names of many persons were dropped from the draft NRC only because of minor differences in the spelling of Bengali names in English in different documents.”
  • We encountered several instances where the variation of a single letter, for example between Omar and Onar, was enough to rule that a person is a foreigner. Likewise, the rural unlettered are typically vague about their dates of birth. A person could be excluded from citizenship if she told the tribunal that she was 40 when her documents recorded her to be 42. Tougher on women
  • Women are especially in danger of exclusion from the citizenship register. Typically, they have no birth certificates, are not sent to school, and are married before they become adults.
  • Therefore, by the time their names first appear in voters’ lists, these are in the villages where they live after marriage, which are different from those of their parents. They are told that they have no documents to prove that they are indeed the children of the people they claim are their parents. There were cases of being excluded from citizenship on this ground alone
  • Impoverished migrant workers often travel to other districts of Assam in search of work, as construction workers, road-builders and coal-miners.
  • In the districts to which they migrate, the local police frequently record their names as illegal immigrants from Bangladesh.
  • The police then mark them out as illegal immigrants. They receive notices from foreigners’ tribunals located in districts where they might have worked years earlier, far away from their home districts they have to travel to for every hearing, adding further to their costs.
  • The NRC is not the only institution through which the state challenges them to prove their citizenship. A second process began in the mid-1990s when the then Chief Election Commissioner T.N. Seshan, as a one-time measure, directed officials to identify “doubtful voters” by marking a “D” against their names on the voters’ list.
  • This would temporarily bar them from voting or standing for elections, until an inquiry was completed. • But this temporary measure became permanent. The power was vested permanently with junior officials who could doubt the citizenship of any person at any time without assigning any reason. Those with the dreaded “D” beside their names had no recourse for appeal under the rules, with years passing without any inquiry. The “D” also debarred them from being included in the draft NRC.
  • A third process empowers the Assam Police to identify anyone it suspects to be a ‘foreigner’. Again, all that the police claim in most cases is that the person was unable to show them documents establishing his or her citizenship. People consistently deny that the police even asked them from documents. Why would they not show them these, when they all know the dangers of not allaying the suspicions of the police? Opaque processes
  • All cases referred by the police are heard by Foreigners’ Tribunals (FTs). Earlier, retired judges were appointed to these tribunals.
  • The Bharatiya Janata Party government has appointed many lawyers (often members of the ruling party or the Rashtriya Swayamsevak Sangh) who have never been judges.
  • There are now FTs in which not a single person has been declared an Indian citizen over several months. Many allege that both the police and presiding officers in FTs work to fulfil informal targets to declare people foreigners.
  • Even if a person finds her name in the NRC, the police can still refer her case to an FT; an election official can even deem her to be a “D”-voter.
  • Article 20 of the Constitution includes as a fundamental right that “no person shall be prosecuted and punished for the same offence more than once”. But this principle has been waived for FTs.
  • We found that even after an FT had confirmed a person to be an Indian citizen, another FT and often the same FT can again issue notice to the same person to prove her legitimate citizenship once more.
  • A person is never be allowed to feel secure that the state has finally accepted that she is an Indian citizen.
  • In this way, the sword permanently hangs low over their heads. Who will be challenged before which institution to prove that they are Indian citizens? Will they or their loved ones be stripped of their citizenship rights, and by processes that are opaque, unreasonable and discriminatory?
  • No person in any one of the testimonies that we heard was given legal aid by the state, which is bound to deploy lawyers paid by the state to fight their cases in the FTs and higher courts.
  • People instead spoke of panic spending, of enormous amounts of money to pay lawyers, as well as for costs of travel of witnesses who they bring with them to testify in their favour.
  • For this, they have had to sell all their assets or borrow from private moneylenders. The large majority of them are poorly educated and very impoverished, doing low-paid work such as drawing rickshaws, or working as domestic work or farm labour.
  • With the entire burden of proving citizenship on their shoulders and the arbitrary and opaque multiple forums to which they are summoned, people deprived of both education and resources are caught in a Kafkaesque bureaucratic maze from which they find it hard to emerge.
  • Trapped at the crossroads of history, their destinies depend on institutions that treat them with undisguised hostility and bias.

There are indeed few parallels anywhere in the world of the state itself producing statelessness on the scale and in the manner that it is doing in Assam.

VISA CRACKDOWN

  • Students should be made aware of the risks of falling afoul of U.S. immigration laws
  • The arrest of 129 Indians on the charge of wilfully violating immigration laws to stay and work in the United States sends a stark message to youth looking for better prospects abroad: their efforts should begin with due diligence and strictly follow the letter of the law.
  • In the sting operation carried out by the U.S. Department of Homeland Security, which threatens to encompass many more Indians in the ‘University of Farmington’ case, the contentious issue is whether they fell victim to unscrupulous recruiters who offered to secure an I-20 student document that allowed them to undertake paid work using the provision for Curricular Practical Training, or knowingly engaged in fraud. • Going by the indictment of eight recruiters of Indian origin, they knew they were violating U.S. immigration law when they enrolled students using fraudulent and unlawful means, and their profits included negotiated referral fees paid into their accounts by undercover agents.
  • The prosecution has alleged that each student who enrolled in the ‘university’ was aware that there would be no classes, credit scores or academic requirements, and the intention was merely to “pay to stay” and gain access to employment. These statements are, of course, subject to scrutiny during the trial of the alleged recruiters.
  • The Ministry of External Affairs has made the correct distinction between students who may have been duped and the recruiters. Students who are eligible to pursue studies at an authorised university in the U.S. should, therefore, get a further opportunity and not be subjected to summary deportation or humiliation. It must also not prejudice the prospects of such students who may apply in future for legal entry. • The University of Farmington case in Michigan is not the first instance of Indian students falling foul of U.S. immigration laws, although it stands apart as a racket exposed by a sting operation.
  • Others such as Tri-Valley University and Herguan University were degree mills run by individuals that used false claims and documents to enable youth to unlawfully stay in the U.S. and, in many cases, pursue employment. These trends reinforce the need for good communication that would help students identify credentialed institutions that meet the requirements of the Student and Exchange Visitor Program, and highlight the serious nature of visa fraud. If the averments in the Michigan case are correct, the prospect of working in America attracted many of the 600 students who were recruited. .
  • This should serve as a reminder to India’s policymakers that access to higher education, job-creation and raising of living standards to meet the aspirations of youth must receive priority. Talk of an impending demographic dividend is meaningless without creating opportunities at home.

America has lost the Afghan war

  • Once U.S. troops leave, the Taliban is sure to challenge Kabul one way or the other
  • The Remnants of an Army, a famous oil on canvas by Elizabeth Butler, is a lasting image of the First Anglo-Afghan War (1839-1842). It depicts William Brydon, a medical officer in the British Indian Army, arriving in Jalalabad from Kabul on horseback in 1842. Both Brydon, who was wounded, and his horse look exhausted. Brydon was the only survivor of the 16,000 soldiers and camp followers who were retreating from Kabul after the British invasion went awry.
  • One hundred and thirty-seven years later, the Soviet Union sent troops to Afghanistan to bolster its client communist regime. A decade passed before the Soviet troops too withdrew in ignominy. And again in 2001, the U.S., the sole superpower of the post-Soviet world, sent troops to Afghanistan launching its ‘War on Terror’. Now, after 17 years of the war, with the U.S. and the Taliban agreeing ‘inprinciple’ to a framework for peace that would provide the Americans a face-saving exit from Afghanistan, it’s hard to miss the echoes from history.
  • Repeating mistakes of the past
  • Afghanistan has historically been a difficult place for external invaders, thanks to its complex tribal equations and its rugged mountainous terrain. It’s a classic example of a country whose geopolitical destiny is defined by geography.
  • The British Empire sent troops to Afghanistan in 1839 as part of the ‘Great Game’. They feared that the Russians would take over Afghanistan and be at the border of India, “the jewel in the British Crown”. To pre-empt that, they conquered Kabul, toppled the Emir of Afghanistan, Dost Mohammad Khan, and installed their protege Shah Shujah Durrani in power. When the invasion became unsustainable in the wake of the violent resistance by tribal fighters, mainly the faction led by Dost Mohammad’s son, Akbar Khan, the British decided to withdraw. But while withdrawing, all their troops but Brydon were massacred, and Dost Mohammad went on to recapture Kabul.
  • The Soviets made the same mistake. They sent troops to Afghanistan after an intra-party coup in the country.
  • The Soviets were wary of Hafizullah Amin, who captured power and assassinated Nur Mohammad Taraki, the leader of the 1978 communist coup. In December 1979, Leonid Brezhnev deployed troops to Afghanistan. The Soviets staged another coup, murdered Amin, and installed Babrak Karmal, a Moscow loyalist, as President.
  • Given their defeat in the Vietnam War and their loss of Iran following the 1979 Revolution, the Americans saw the Soviet intervention in Afghanistan as an opportunity. They began supporting the mujahideen, the tribal warriors who were fighting both the communist regime and its Soviet backers, with help from Pakistan and Saudi Arabia, which were worried about the expansion of communism to the Muslim world.
  • A decade later, the Soviets realised that the occupation had become unsustainable and pulled back.
  • When the U.S. decided to attack the Taliban regime in Afghanistan in 2001, President George W. Bush said the ‘War on Terror’ would not end “until every terrorist group of global reach has been found, stopped and defeated”. This was a tall order.
  • The U.S. toppled the Taliban quickly and Afghanistan eventually got an elected government under President Hamid Karzai. But after 17 years of fighting, the war has reached nowhere. Since 2009, when the United Nations started documenting the casualties of the war, nearly 20,000 Afghan civilians have been killed in conflict and another 50,000 wounded.
  • The U.S., which has spent some $877 billion on the war, has lost at least 2,000 military personnel in Afghanistan since the war began.
  • An unsustainable war
  • And what did it get in return? The Taliban, which retreated in 2001, is on the comeback trail. Some estimates suggest that nearly half of Afghanistan, mostly the mountainous hinterlands, is now controlled by the Taliban. In the east, a small cell of the Islamic State is well-entrenched and has carried out a series of sectarian attacks in recent months, killing hundreds of Hazara Shias. The government is grappling with chronic corruption, and regional satraps call the shots outside Kabul
  • U.S. President Donald Trump has made it clear many times that he wants to bring American troops back home. Yet he decided to send more troops to Afghanistan in 2017 to step up the fight against the Talib
  • Since then, the U.S. has carried out large-scale air operations in Afghanistan, but it has failed to arrest the Taliban’s momentum. The group continues to hold sway in rural Afghanistan and retains the capability to strike anywhere in the country.
  • Just since 2014, Afghanistan has lost some 45,000 soldiers in battle. Amid mounting losses and an inability to break the stalemate in the conflict, the Americans, like the British Empire in the 19th century and the Soviets in the 20th century, seem to have realised that the first major war of the 21st century is no longer sustainable.
  • The role of the Taliban
  • The question is, what next? The U.S. says it has got assurance from the Taliban that the group won’t provide a safe haven to terror groups in Afghanistan.
  • It will also push for a ceasefire and intra-Afghan talks. But the fact remains that the U.S. has already conceded a lot to the Taliban.
  • The Taliban said it would not talk to the Afghan administration; it does not acknowledge the government’s legitimac
  • The Americans accepted this and held direct talks with the insurgents, who negotiated from a position of strength. The U.S. has also agreed, in principle, to pull out troops, the biggest Taliban demand, without any clear agreement on the future role of the Taliban. This shows how desperate the U.S. is to get out of Afghanistan, a war it has lost badly. It will be exiting on terms largely dictated by the Taliba
  • It would be naive to say that the Taliban fought the war for 17 years only to reach an agreement with the Americans. It fought for power, which it lost with the arrival of American troops in 2001
  • And it’s certain that once the Americans leave, the Taliban will challenge Kabul one way or the other.

Wrong on the Rohingya

  • Deportation of refugees is legally and morally problematic
  • In January, the UN High Commissioner for Refugees (UNHCR) called for a report from India on the deportation of a group of Rohingya refugees to Myanmar in October 2018. India’s repatriation of the refugees contravenes international principles on refugee law as well as domestic constitutional rights.

Global framework

  • Refugee law is a part of international human rights law. In order to address the problem of mass inter-state influx of refugees, a Conference of Plenipotentiaries of the UN adopted the Convention Relating to the Status of Refugees in 1951.
  • This was followed by the Protocol Relating to the Status of Refugees in 1967. One of the most significant features of the Convention is the principle of non-refoulement. The norm requires that “no contracting State shall expel or return a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.” This idea of prohibition of expulsion lies at the heart of refugee protection in international law.
  • It is often argued that the principle does not bind India since it is a party to neither the 1951 Convention nor the Protocol.
  • However, the prohibition of non-refoulement of refugees constitutes a norm of customary international law, which binds even non-parties to the Convention.
  • According to the Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations, UNHCR, 2007, the principle “is binding on all States, including those which have not yet become party to the 1951 Convention and/or its 1967 Protocol.”
  • Article 14 of the Universal Declaration of Human Rights provides that everyone has the right to seek and enjoy in other countries asylum from persecution.
  • Moreover, Article 51 of the Constitution imposes an obligation on the state to endeavour to promote international peace and security. Article 51(c) talks about promotion of respect for international law and treaty obligations. Therefore, the Constitution conceives of incorporation of international law into the domestic realm. Thus the argument that the nation has not violated international obligations during the deportation is a mistaken one.
  • Domestic obligations
  • The chapter on fundamental rights in the Constitution differentiates citizens from persons. While all rights are available to citizens, persons including foreign citizens are entitled to the right to equality and the right to life, among others. The Rohingya refugees, while under the jurisdiction of the national government, cannot be deprived of the right to life and personal liberty.
  • The Rohingya are “among the world’s least wanted and most persecuted people,” according to a BBC report. In Myanmar, they are denied citizenship, the right to own land and travel, or to even marry without permission, says the report. According to the UN, the Rohingya issue is one of systematic and widespread ethnic cleansing by Myanmar.
  • Therefore, the discrimination that the Rohingya face is unparalleled in contemporary world politics. In National Human Rights Commission v. State of Arunachal Pradesh (1996), the Supreme Court held: “Our Constitution confers... rights on every human being and certain other rights on citizens. Every person is entitled to equality before the law and equal protection of the laws. So also, no person can be deprived of his life or personal liberty except according to procedure established by law. Thus the State is bound to protect the life and liberty of every human-being, be he a citizen or otherwise...”
  • India lacks a specific legislation to address the problem of refugees, in spite of their increasing inflow. • The Foreigners Act, 1946, fails to address the peculiar problems faced by refugees as a class. It also gives unbridled power to the Central government to deport any foreign citizen.
  • Further, the Citizenship (Amendment) Bill of 2019 strikingly excludes Muslims from its purview and seeks to provide citizenship only to Hindu, Christian, Jain, Parsi, Sikh and Buddhist immigrants persecuted in Bangladesh, Pakistan and Afghanistan.
  • The majority of the Rohingya are Muslims. This limitation on the basis of religion fails to stand the test of equality under Article 14 of the Constitution and offends secularism, a basic feature of the Constitution.
  • The American philosopher Ronald Dworkin argues that if we claim international law to be law, we must understand it as part of the greater morality. In such a conception, the deportation of refugees by India is not only unlawful but breaches a significant moral obligation