India’s National Register of Citizens: Fine intentions, Ominous portents

By Sanjib Baruah (Bard College), GLOBALCIT collaborator and author of the forthcoming book In the Name of the Nation: India and its Northeast (Stanford University Press, 2020).

Even in the context of the contentious debates on immigration in Europe and the United States, people rarely question the capacity of their governments to identify their citizens and distinguish them from non-citizens living in the country. This is the result of what the French historian Gérard Noiriel calls the ‘identification revolution’ that took place early in the last century – if not before – in most of these countries. But not all governments today have a centralised database of all its citizens. The citizen/non-citizen distinction in these situations can be blurred, and non-citizens are able to vote not because of progressive laws permitting their participation in municipal elections, but because the rudimentary documents required for the exercise of franchise can be easily obtained through informal – and sometimes fraudulent – means. This phenomenon has been extensively analysed in Kamal Sadiq’s book Paper Citizens.

The border state of Assam in Northeastern India has had a long history of migration from the neighbouring region that is now Bangladesh. This migration began well before the partition of India in 1947, when the international border between eastern Bengal (which became East Pakistan and subsequently Bangladesh) and India came into existence. Since the 1970s, a decade that began with Bangladesh’s war of independence from Pakistan, which prompted a massive refugee influx into India, the phenomenon of ‘suffraged non-citizens’ – to use Kamal Sadiq’s felicitous phrase — has been the cause of intense political controversy in Assam. This has included civil unrest, ethnic violence, unstable elected governments, and a bloody period of insurgency and counterinsurgency.  Yet the legacy of the 1947 partition makes this issue more than just a matter of undocumented cross-border migration.

Indian citizenship laws assume that partition was more or less a conclusive one-time event, and they do not distinguish between Hindus and Muslims crossing the partition border in later years. Yet many in India believe that the post-partition Indian state has a historical obligation to those who find themselves on the ‘wrong’ side of the border, i.e., Hindus in Bangladesh and Pakistan. It was Assam’s endless controversies over nation and citizenship that eventually led Indian state authorities to undertake a massive unprecedented bureaucratic exercise called the updating of the National Register of Citizens (NRC). There was remarkable support for it among all sections of people in Assam at least at the beginning of the operation in 2015. An accurate register of citizens, it was hoped, would end this protracted controversy. That the operation was monitored by the Indian Supreme Court added to its legitimacy in the eyes of the local public. Yet it has been contentious on multiple grounds.

In order to be included in the NRC, a person had to identify an ancestor whose name appears in certain select pre-1971 government sources, and provide documentation showing a connection to that person through family lineage. However, finding ‘legacy documents’ turned out to be a daunting challenge for many, especially for poor people with limited literacy, and for women whose names rarely appear on land records or even family trees. Thus, few were surprised when the final version of the register published on August 31, 2019 excluded as many as 1.9 million people. That it would be controversial both domestically and internationally was also anticipated.

The prospect that millions of suspected Bangladeshi unauthorised immigrants may be left out from the NRC received wide media attention in Bangladesh. Even before the publication of the final NRC, Indian external affairs minister S Jaishankar visited the country to assure its leaders that the exercise is an ‘internal matter’, implying that no large-scale deportation is being contemplated. But the NRC process still fuels fears among many, both in India and abroad, that a looming Rohingya-like crisis may be in the making. The UN High Commissioner for Refugees, Filippo Grandi, has expressed concern that it could lead to a major crisis of statelessness. ‘Any process that could leave large numbers of people without a nationality’, said Grandi, ‘would be an enormous blow to global efforts to eradicate statelessness’. He appealed to Indian authorities ‘to ensure that no one is rendered stateless by this action, including by ensuring adequate access to information, legal aid, and legal recourse in accordance with the highest standards of due process.’

The official spokesperson of India’s external affairs ministry has since said that exclusion from the NRC does not make a person stateless, and that they ‘will continue to enjoy all the rights as before till they have exhausted all the remedies available under the law.’ Despite these reassurances, it appears likely that hundreds and thousands of people – many of them born in India – will effectively find themselves as non-citizens at the end of the appeal process. To be sure, it is reassuring that large-scale deportation is not on the agenda, though it should be kept in mind that Bangladesh is under no obligation to recognise those excluded from the Indian NRC as their nationals. At the same time legalisation or a general amnesty is not on the horizon. It is not unlikely that at the end of the process, the country that takes pride in being ‘the world’s largest democracy’ will effectively introduce a new form of precarious citizenship—residents with fewer rights and entitlements. Under these circumstances, the talk of detention camps and the fast normalisation of the idea can only be seen as ominous. That India has recently imposed new restrictions on foreign journalists covering Assam does not bode well either.

The NRC is part of a larger phenomenon occurring in various parts of the world: stringent boundary-enforcement measures pulling ‘more people into the documentary power of the state without providing them a secure place within it,’ to borrow political scientist Noora A. Lori’s crisp description. In this process, she observes, a growing number of people are being pushed into a state of precarious citizenship because governments ‘avoid resolving dilemmas about citizenship (especially questions about the incorporation of minorities, refugees, or labor migrants) by postponing those decisions, perhaps indefinitely.’

Moreover, over the past few years, at the pan-Indian level, Assam’s NRC has acquired excess meaning at odds with the context out of which it originated. The rise of neo-nationalist Hindu majoritarian politics is slowly redefining the affective map of Indian society. A proposed amendment to India’s citizenship laws was introduced in the Indian parliament in 2016, which ostensibly aims at giving refugee status to persecuted religious minorities from Afghanistan, Bangladesh, and Pakistan. Sikhs, Buddhists, Jains, Parsis and Christians were included in its definition of religious minorities, but Muslim groups like Ahmadis – certainly a persecuted religious minority in Pakistan—were excluded. This bill would have effectively introduced into Indian law a distinction between non-Muslim and Muslim immigrants crossing the partition’s borders – an unfinished piece of partition business in the eyes of Hindu majoritarians. The proposed amendment, however, is likely to face legal challenges for legislative overreach and violation of the Indian constitution’s legal equality and equal protection guarantee under Article 14: “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”

While there was widespread support for the Citizenship Amendment Bill in the rest of India, there was significant mobilisation against it in Assam and other Northeast Indian states. With the national elections then around the corner, the bill was effectively abandoned. After it was passed by the lower house of Parliament, the government did not introduce it in the upper house. The bill lapsed when the final session of parliament under the previous Modi government ended in February of 2019. The current Modi government is expected to reintroduce the bill in coming months, and it will be approved by this parliament quite easily. This amendment, assuming that it passes the constitutionality test, will have a direct impact on the NRC; it will effectively provide for a faith-based selective amnesty for those not included in it. It will radically change the meaning of Indian citizenship and of the NRC – pushing it an exclusionary jus sanguinis direction, and demonstrating in effect, the enduring power of partition as a political episteme.

The demand for updating the NRC may have grown out of the troubled history of a single migration-intense border state of the Indian Union, and this judiciary-led process may have indeed been ‘technology-driven, transparent and objective,’ as Prateek Hajela, the Indian civil servant who headed the process, has claimed. But one of its unintended consequences is quite pernicious: the NRC is now being deployed as a metaphor for a deterritorialised border—a border without a borderland, to use Anastasia Piliavsky’s evocative phrase—which can protect and secure the majoritarian nation against its ‘other.’ Statements by influential ruling party politicians about their intention to extend the NRC to other parts of India have sent jitters through Muslim communities in Assam and beyond, forcing many to rush to government offices to find—for the first time ever in their lives – documentary evidence that would support their rightful claim to citizenship.