Assam citizenship issue: Supreme Court acted inconsistent with international law

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Excerpt from Amnesty International India’s “Designed to Exclude: How India’s Courts are Allowing Foreigners Tribunals to Render People Stateless in Assam”:

In September 2019, Raveesh Kumar, the spokesperson of the Ministry of External Affairs, while laying out the future map of NRC in Assam said, “All appeals and excluded cases will be examined by this tribunal i.e. a judicial process…Thereafter, anyone still aggrieved by any decision of being excluded will have the right to approach the High Court of Assam and then the Supreme Court”.

This does not instil confidence. Because, since 2005, the courts in India, including the Supreme Court of India, have adopted and implemented a set of legislative measures with a clear goal in mind: to exclude people of Bengali-origin. They have achieved it by legitimizing the anti-immigrant, particularly the anti-Bengali immigrant rhetoric.

The judgments and decisions of the Supreme Court have severely weakened the separation of powers, consolidating judicial functions with the executive. In many cases, the courts have assumed the domain of the executive and passed orders. As a result, India stands at the brink of a statelessness crisis.

Sarbananda Sonowal v. Union of India, 2005

In 2005, the Supreme Court of India issued a judgment in the case of Sarbananda Sonowal v. Union of India that changed the face of citizenship determination in India. The current Chief Minister of Assam and then-President of AASU, Sarbananda Sonowal had filed a petition asking for the repeal of the Illegal Migrants (Determination by Tribunal) (IMDT) Act, 1983 and application of Foreigners Act, 1946 in Assam. Two years before the Assam Accord was signed, Government of India had enacted the IMDT Act to deal with the peculiar problem of irregular immigration in Assam.

In 1986, the central government amended the Citizenship Act to include Section 6A which divided the migrants coming to Assam into three categories: 1) those who came before 1 January 1966 2) those who came between 1 January 1966 and 25 March 1971 and 3) those who came after 25 March 1971. It declared the persons falling under the third category to be foreigners, ineligible to acquire Indian citizenship. The aim of the IMDT Act was to determine whether a person is an irregular immigrant vis-à-vis Section 6A of the Citizenship Act.

Contrary to the pre-constitutional and colonial Foreigners Act, 1946 that lays the burden of proof on the individual to show that he is not a foreigner, the IMDT Act required the state authorities to prove that an individual is not an Indian citizen. Only a serving or retired District Judge or Additional District Judge could become a member of the Tribunal under the IMDT Act. The procedure for referring a case to the Tribunal included vetting at multiple levels.

In an event of an unfavourable opinion or difference of opinion between two members, an appellate tribunal was created for review of the opinion. Sonowal claimed the IMDT Act was arbitrary and discriminated against the people of Assam. In a 44- page judgment, the Court repealed the IMDT Act for violating Article 14 and 355 of the Constitution of India. After the Act was struck down, the Foreigners Tribunal, created under the Foreigners Act, 1946 substituted the Tribunals under the IMDT Act for determining the allegations of doubtful citizenship in Assam.

In doing so, the Supreme Court reversed the burden of proof and demanded the residents of Assam to produce adequate documents proving their Indian citizenship before the Foreigners Tribunals. Holding the fair trial guarantees to be a barrier to ‘detect’ irregular migrants under the IMDT Act, the Supreme Court said:

“It is far easier to secure conviction of a person in a criminal trial where he may be awarded a capital punishment or imprisonment for life than to establish that a person is an illegal migrant on account of extremely difficult, cumbersome and time-consuming procedure laid down in the IMDT Act.”

The Foreigners Act does not have an appellate body, does not give any guidance on referring a person to Foreigners Tribunal and has gradually diluted the eligibility criteria of Tribunal members. The Supreme Court preferred the quickness of Foreigner Tribunals to the fairness of the Tribunals under the IMDT Act. While the quickness of the Foreigners Tribunal has not led to more deportations, it has violated the human rights of residents of Assam declaring countless Indian citizens, stateless.

How did the Supreme Court equate migration with ‘external aggression’?

Article 355 is an ‘emergency’ provision laid down in Part XVIII of the Constitution. It casts a duty upon the central government to protect the states against ‘external aggression and internal disturbance’. The Court argued that by enacting the IMDT Act, which apparently failed to check irregular immigration, the Central Government failed in its duty to protect the citizens of Assam against ‘external aggression and internal disturbance’ warranting that the said legislation be repealed for being in violation of Article 355.

In the absence of any guidance given by the Constituent Assembly debates and previous case laws, the Court interpreted the term ‘aggression’ broadly, drawing interpretation from U.S., U.K. and international law. It argued that the word ‘aggression’ would include “invasion of unarmed men in totally unmanageable proportion if it were to not only impair the economic and political well-being of the receiving victim State but to threaten its very existence.”

The Court further relied on the 1931 report of C.S. Mulan, a Census Officer and the 1998 report of the former Governor of Assam, which claimed that irregular immigration was the primary cause for problems like insurgency and ethnic strife in Assam, sloppily linking irregular migration with external aggression. For all practical purposes, it equated migration with ‘external aggression’, and ruled that it has resulted in the constitutional breakdown in the state, setting a grossly wrong precedent.

Senior lawyers and civil society organisations in Assam have found the content of the reports of the former Governor of Assam and Census Officer used by the Supreme Court to repeal the IMDT Act to be questionable and biased. The Governor’s report used xenophobic terms such as ‘panic attack’, ‘demographic invasion’, ‘grave danger to our national security’,‘illegal immigrant’ and ‘insurgency’ for discriminating against people of Bengali-origin, both Muslims and Hindus. Gautam Bhatia, an expert on the Constitution of India told Amnesty International India:

“It is a very self-serving judgement which departs from all principles the Supreme Court has followed in other cases. In addition, this has become the basis for everything that has followed. It has set the tone in terms of both rhetoric and legal doctrine to demonise immigration, to look down upon immigrants as a massive threat, to call it invasion and to justify all kinds of stringent measures. It departs from the principles of fairness.”

The Court also held that the Act fell short of the protection of equality afforded to every person before law under Article 14 of the Constitution. Comparing Foreigners Act, 1946 with the IMDT Act, the Court argued that under the IMDT Act, the irregular immigrants in Assam had far greater rights as compared to an irregular immigrant anywhere else in the country. It also observed that the IMDT Act did not have any rational nexus with the policy and object of the Act, which included expediting the process of identification and deportation of irregular immigrants. It completely disregarded the absolute lack of protection afforded to persons under the Foreigners Act, and held that it has been more effective in identifying and deporting foreigners than the IMDT Act.

Speaking to Amnesty International India, Sanjoy Hazarika, a senior journalist and International Director, Commonwealth Human Rights Initiative said, “It is a flawed judgment. Supreme Court has always been a bulwark against authoritarian governments. However in this case, the Court acted, if not like an arm of the political executive but certainly with a similar approach. A challenge is overdue”.

How the judgment violates domestic law

According to constitutional experts, retired judges and human rights organisations in India, the judgment contravenes the landmark decision by the Supreme Court in the case of S.R. Bommai v. Union of India.  In Bommai’s case, the Court had observed that Article 355 is not an independent source of power for the centre to interfere with the state’s functioning but is in the nature of justification for measures to be adopted under Articles 356 and 357 of the Constitution, with limited judicial review available.

Instead, the Court through the Sonowal judgment set a contradictory precedent where it could order the states to intervene in cases of some ‘ external aggression and internal disturbance’ and even declare emergency in the state – which is clearly a domain of the executive branch of the government, particularly the President.

Speaking to Amnesty International India, retired Justice of the Supreme Court of India and former Chief Justice of the Gauhati High Court, Madan B. Lokur said:

“The inference has to be drawn assuming the facts are correct and we have to proceed accordingly. They may be exaggerated but you may still have to proceed on that basis. As far as the inference drawn from the factual position laid down by the report of the-then Assam’s Governor is concerned, to say that there is external aggression because there was a large influx of persons coming from Bangladesh – I do not see how this can be called an ‘aggression’. The inference drawn of external aggression is not necessarily correct.”

He further added:

 “An aggression does not take place overnight. In a situation like this, it takes place over a period of time. It is protracted. What was the Government of India or State Government doing when it was facing the aggression? Was it not supposed to prevent the aggression, assuming it was indeed an external aggression? It is the obligation of the Government to prevent an external aggression. Tomorrow, hypothetically, an enemy country decides to conduct an external aggression into India – can the Government of India say that let it continue for two-three months? And we will see after two-three months. Therefore, the inferences are wrong.”

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This judgment has had far-reaching consequences for the residents of Assam. It has laid down the foundation for subsequent judgments delivered by the Supreme Court of India and Gauhati High Court on the issue of irregular migration, particularly restricting the rights of residents of Assam, inch by inch. To illustrate, in the 2014 case of Assam Sanhmilita Mahasangha v. Union of India, the Supreme Court heavily relied on the Sonowal judgment, particularly the report of former Governor of Assam to legitimize the urgency of updating the National Register of Citizens (NRC).

It used statements such as ‘massive influx of illegal migrants’ and ‘invasion of a vast horde of land-hungry immigrants mostly Muslims from East Bengal’. The judiciary-backed-bureaucratic exercise of updating the NRC culminated in a ‘final draft’ on 31 August 2019, which excluded over 1.9 million people of Assam, about 6% of the state’s population.

How the judgment violates international human rights law

While states have a right to establish principles about how nationality is acquired, renounced or lost, they must do so within the framework of international human rights law. In particular, domestic laws and practices must not violate the right to non-discrimination and the obligation to prevent statelessness. The right to a nationality is a human right enshrined in several international human rights instruments to which India is a party.

International law imposes certain limits on what states may lawfully do, particularly if their actions could result in statelessness. The right to a nationality includes the right not to be arbitrarily deprived of one’s nationality. In order to respect this right, measures leading to deprivation of nationality must meet certain conditions.

These include: being in conformity with domestic law; serving a legitimate purpose that is consistent with international law and, in particular, the objectives of international human rights law; being the least intrusive instrument to achieve the desired result; and being proportional to the interest to be protected. The notion of arbitrariness includes not only acts that are against the law but, more broadly, elements of inappropriateness, injustice and lack of predictability. The decision of the Supreme Court of India was not consistent with these principles of legality and proportionality.

It made Foreigners Tribunal the primary and only means of depriving people of their nationality, which has resulted in a large number of people being arbitrarily deprived of nationality and subsequently exposed to a situation of statelessness in Assam. Further, in cases where deprivation of nationality may lead to statelessness, international experts agree that the burden of proving that the individual will not be rendered stateless to remain with the State.

The United Nations Special Rapporteurs on freedom of religion or belief, on minority and, on contemporary forms of racism, racial discrimination, xenophobia and related intolerance have also stressed that the burden of proof should lie with the State and not with the individual, considering the ‘discriminative and arbitrary nature of the current legal system’ in Assam. Those stripped of their citizenship by the Foreigners Tribunals in Assam owing to the Sonowal judgment, continue to live in a perpetual state of statelessness without any protection of law.

To illustrate, according to the data produced before the Parliament, over 117,000 people have been declared foreigners by the Foreigners Tribunal in Assam up to 31 March 2019, of whom only four have been deported until now. About 1,005 remain jailed across six detention centres, which share the premises with the adult prisons in Assam, according to the data produced before the Assam Legislative Assembly on 29 July 2019. The rest live deprived of all rights guaranteed to a citizen of India, within India.

Assam public works v. Union of India, 2019

In its August 2019 decision in the case of Assam Public Works v. Union of India, drawing from Section 3(1)(c) of the Citizenship Act 1955, the Supreme Court extended the deprivation of citizenship to the children of doubtful voters, those declared to be foreigners and whose cases were pending before the Foreigners Tribunal. The section excludes a child born to an ‘illegal immigrant’ parent from acquiring Indian citizenship. Specifically, it held that for people born after 3 December 2004, if one of their parents belonged to one of these three categories, they might not be included in the NRC, notwithstanding the status of the other parent.

The decision of the Supreme Court is inconsistent with international law, besides being removed from the laws on ground. The Supreme Court applied its interpretation retroactively when it ruled those children of doubtful voters; those declared to be foreigners and those whose cases were pending before the Foreigners Tribunal, born after 3 December 2004, should be excluded from the National Register of Citizens.

The principle of non-retroactivity requires that the sanction must have been known (or it must be possible for it to be known) before the act or omission occurs in order for punishment for a violation of the law to be lawful. Moreover, this effectively means that the children of an irregular migrant could no longer access Indian citizenship by virtue of being born to their parents. India, under the Convention on the Rights of the Child has an obligation to take every appropriate measure to ensure that no children are left stateless. This judgment not only severely compromises the rights of the children born in India but also the country’s human rights record.

It also disregards the international law in so far as the independent nationality rights of children are concerned which protect the child’s right ‘to preserve his or her identity, including nationality’. It explicitly prohibits the loss or deprivation of the nationality to dependents if statelessness would result, as in the case of people declared foreigners by the Foreigners Tribunals in Assam or marked as Doubtful Voters by the Election Commission of India.

Most importantly, the Foreigners Tribunals, under the Foreigners (Tribunal) Order 1964, are only mandated to determine whether a person is a foreigner or not under Section 2 of the Foreigners Act and not whether a person is an ‘illegal immigrant’ as defined under Section 2 (b) of the Citizenship Act. Therefore, attributing “illegality” to a person before a proper determination before a competent and independent body is in violation of a person’s right to a fair trial, while blurring the mandates of two separate legislations to exclude people is absolutely unwarranted.

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