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India : National Register of Citizens and the Supreme Court

The Citizenship (Amendment) Bill, 2016, which has met with fierce resistance in the north-eastern states, especially Assam, is likely to be shelved by the union government and not introduced in this session of Parliament (Bhattacharya 2018). The bill declares Hindus, Sikhs, Buddhists, Jains, Parsis, and Christians fleeing religious persecution from Afghanistan, Bangladesh and Pakistan as not being “illegal migrants” for the purposes of the Citizenship Act, 1955, and also reduces the time required for such persons from these countries to obtain citizenship by naturalisation from 11 years to six years. The agitation, though, had nothing to do with the exclusion of Muslims from the provisions of this bill. Rather, it had to do with the grant of any exemption or benefit in favour of anyone from Bangladesh who might benefit from its provisions (Bhattacharya 2018).

Ostensibly, this bill is in fulfilment of the Bharatiya Janata Party’s 2014 manifesto to grant citizenship to Hindus fleeing persecution in Muslim-majority countries neighbouring India (Garg 2016). That, it has been argued, is simply a cover for remaking the notion of Indian citizenship, from a secular conception to a religious one (Gauba and Singh 2017). This argument is not without merit. If the union government was genuine about sheltering vulnerable minorities (it has, after all, included Sikhs, Parsis, Jains and Buddhists within the ambit of the law), it would have included Baha’is, Shias, and Ahmadiyyas, among others, who face persecution in Sunni-Muslim-majority countries for being insufficiently or improperly Islamic. Even Tamil-speaking Hindus of Sri Lanka fleeing persecution at the hands of Sinhala Buddhists have been deemed unworthy of inclusion in the bill (Gauba and Singh 2017).

Commentators have questioned the constitutional validity of the provisions of the bill discriminating as it does almost entirely on the basis of religion (Thakur 2018). Ex facie, it discriminates purely on the basis of religion, going against Article 14 of the Constitution. Even if a community living in Afghanistan, Bangladesh or Pakistan were to face religious persecution, the fact that the community was not Hindu, Sikh, Buddhist, Jain, Parsi or Christian would disentitle it from the benefit of this law, with no apparent justification for this denial. It introduces a religious element into the notion of citizenship, striking clearly at the heart of a secular Constitution, and potentially going against the basic structure of the Constitution (Thakur 2018).

That this damaging and discriminatory bill is likely to be withdrawn, however, does not necessarily represent a victory for constitutional values and morality. Had the bill been withdrawn, or amended to include all communities that had fled to India to avoid religious persecution in neighbouring countries, one could have said so. However, the circumstances in which the government has been forced to take a step back are hardly salutary.

Right from its introduction, the bill faced severe opposition in Assam on the belief that it would enable “illegal migrants” from Bangladesh to seek citizenship and, therefore, permanent residency in Assam (Acharyya 2016). The clauses of the bill, which potentially allowed Bangladeshi Hindus who are alleged to have illegally migrated to Assam, were the source of controversy. What, perhaps, surprised the union government was the spread of the opposition in other north-eastern states as well, like Arunachal Pradesh, Mizoram, and Nagaland (Times of India 2018). The concerns were the same, that these states would also be “swamped” with migrants from Bangladesh.

The agitation over the bill has divided Assam itself (Hasnat 2018). They seem to have raised ethnic and communal tensions in a region that has seen much violence and bloodshed along these lines. What the events surrounding the bill suggest is that the region remains a tinderbox of competing communal considerations waiting to explode.

Into this tinderbox, the Supreme Court may have struck a match hoping to shed light in the dark, but can potentially trigger an explosion.

Supreme Court’s Role

For better or for worse, the Supreme Court has decided that it will judicially oversee the process of updating the National Register of Citizens (NRC), which is supposed to help identify Indian citizens residing in Assam in accordance with the Citizenship Act, 1955 and the Assam Accord. The litigation, which began in 2009 as a public interest litigation (PIL) filed by “Assam Public Works,” has, since December 2014, morphed into a court-monitored process of creating a draft NRC that is trying to verify how many of Assam’s 3.29 crore residents are legitimate citizens of the state (in accordance with the Assam Accord and the Citizenship Act, 1955) and how many are “illegal migrants” (Assam Public Works v Union of India 2018).

The process has not been without its problems. A “first draft” published in December 2017 included only 1.9 crore names (less than 60% of the state’s population), but mass panic was averted on the promise that more names were to come. The procedure being adopted to decide whose claims are legitimate and whose claims are not has been dodgy to say the least. From the non-transparent manner in which some of the procedures were approved, to allegations of bias against the presiding judge, Justice Ranjan Gogoi (hailing from Assam), there are many troubling questions that have arisen in the manner in which the process of preparing the NRC has unfolded (Donthi 2018).

The final draft of the NRC is due to be published on 30 July 2018. It was supposed to be published on 30 June itself, but on account of floods the NRC coordinator sought and obtained an extension till the end of July to publish the draft (Indian Express 2018).

The outcome of the litigation has risks for the Supreme Court itself. Should the Court give a stamp of approval to the NRC, thereby foreclosing any chance of judicial remedy to those who may have been wrongly removed from it ? If the draft NRC shows the actual number of “illegal migrants” to be far fewer than the fantastically large figures being quoted by some, will the Supreme Court become the focus of controversy as having overseen a flawed process ? If the draft NRC sparks off communal or ethnic tensions, will the Supreme Court accept responsibility ?

These institutional concerns, while specific to the NRC and Assam, are also relevant whenever the Supreme Court surges boldly into areas with little precedent, especially through the medium of a PIL. As Anuj Bhuwania (2017) has pointed out, it has led to a court that has discarded procedure, caused grievous injury to vulnerable communities and diminished its own credibility through its overreach on matters.


The best case scenario, at this moment, would be for the Court to let the draft NRC come out in public. It should create an orderly mechanism for those aggrieved by exclusion to exhaust judicial remedies in accordance with law, without prejudicing their rights by prejudging any matter. There still remains the question as to what happens to those who are declared “illegal migrants” in accordance with the law after all judicial remedies are exhausted. This is an even more complicated question that perhaps has a partly judicial and partly political answer (Dutta 2018).

There is, however, a grave risk that the Supreme Court, far from ensuring a fair and just process of preparing the NRC, ends up unleashing a tide of xenophobia and bigotry as the unintended consequences of the project. The Citizenship (Amendment) Bill fiasco should serve as a warning to the Court that it is entering dangerous waters and it may have taken on a task it is not equipped to deal with.

One can only hope that the Supreme Court, specifically Justices Gogoi and Rohinton Nariman, know exactly what they are doing.

Les opinions exprimées et les arguments avancés dans cet article demeurent l'entière responsabilité de l'auteur-e et ne reflètent pas nécessairement ceux du CETRI.