A LEGAL ANALYSIS OF NATIONAL REGISTERS FOR CITIZENS WITH SPECIAL

REFERENCE TO ASSAM DETENTION CAMPS: AN INTERNATIONAL LAW

PERSPECTIVE

CITIZENSHIP AND EMIGRATION LAWS

SUBMITTED BY- SUBMITTED TO-

UTKARSH DR. RADHESHYAM PRASAD

SEMESTER- VII ASSOCIATE PROFESSOR

(LAW)
ROLL NUMBER: 968(B) NUSRL, RANCHI.
NATIONAL UNIVERSITY OF STUDY AND RESEARCH IN LAW, RANCHI

TABLE OF CONTENTS

INTRODUCTION ................................ ………………...................3

I. HISTORICAL BACKGROUND………………………………….3

II. FOREIGNERS ACT, 1946 AND FOREIGNERS TRIBUNALS, `1964.

III. THE ASSAM MOVEMENT AND ASSAM ACCORD……………..4
IV. NRC PROCESS AND DEVELOPMENT………………………….5
V. ROLE OF SUPREME COURT…………………………………..5
VI. CONSEQUENCES OF THE PROCESS……………………………7
VII. STATUS QUO AND STATELESSNESS………………….8
VIII. DETENTION CRIMINALISATION………………………………9
IX. ARBITRARY DETENTION……………………………………10
X. THE GLOBAL COMPACT ON MIGRATION AND REFUGEES…...11
XI. REFUGEES…………………………………………………..11
XII. SUGGESTION………………………………………………...12

XIII. CONCLUSION………………………………………………...14

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 There is a thin line between nationalism and xenophobia —besides, hatred of the foreigner
could later turn into a hatred of Indians different from oneself.

-Rabindranath Tagore
1. INTRODUCTION

The issue of citizenship is closely connected with the preservation of cultural identity,
demography coordination and regional peace. The social contract theory prescribed for the
people to repose their faith in a government, and form a contract with them, wherein the
people of a state contribute their individual labour and resources into the larger pool of the
nation and in exchange the state provides them with sufficient security, infrastructure and
basic necessities. Universal understanding exists around that world that each country and its
corresponding economy has a resource constraint i.e. a limited amount of resources to
support a population, which in turn contribute to the cycle of resource management.
Prosperous diaspora of a society provide for the not-so-privileged section through the social
security net, the state being the facilitation agent in the process, but there exists a problem
when the population appears to blow out of proportion to the production of resources, more
so in a country like India with an already existing population battle to fight. The question of
refugees and migrants in the state always invokes mixed emotions amongst the people.
Various logical explanations are used to either counter or support the cause of such entities.
The National Register of Citizens (herein after as ‘NRC’) is a tipping point in the history of
the country, its success, failures, achievements, complications can only be pointed out
looking at hindsight, maybe, twenty years down the line, but its history does reflect a lot on
the motives, actions and mistakes of the administrators of the past, from creating a problem to
finding its solution, NRC has been an interesting journey in itself

2. HISTORICAL BACKGROUND

Before coming to the National Register of Citizens (NRC), it is pertinent to understand the
historical background leading to the influx of illegal migrants and the NRC. Since
independence, there have been a series of landmark acts, resolution and accords which are
shaping today’s dynamics in Assam. The first act which is relevant was the Foreigner’s Act
1946 which defines a foreigner and such individuals/immigrants were required to prove
legality with regards to their citizenship. The act also empowered the Indian Administration

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to arrest and deport such individuals.1 The Immigration Act (Expulsion from Assam), 1950,
aimed at the expulsion of all the migrants who came to Assam and was considered a threat to
Assamese Scheduled Tribes in specific and Indian public in general2

2.1 FOREIGNERS ACT, 1946 AND FOREIGNERS TRIBUNALS, `1964

The Foreigners Act of 1946 was promulgated by the Imperial Legislative Assembly (ILA). 3

The Act placed the burden of proof to demonstrate that an individual was not a “foreigner” on
the accused individual and not on the state.197 The Indian government authorized the
Foreigners (Tribunals) Order in 1964, requiring the creation of Foreigners Tribunals across
India even as it was subsequently and solely implemented in Assam.198 The Foreigners
Tribunals were empowered to determine if a person was a non-native, a foreigner. Such
persons could be held in detention camps and eventually deported. Amendments were made
to the Foreigners (Tribunal) Order in 2013 and 2019. If the state suspected an individual to be
an “infiltrator” or an “illegal” (undocumented) immigrant, the police had requisite authority
under the Foreigners Act (1946)199 to arrest, prosecute, and extradite such a person

National Register of citizens

3. THE ASSAM MOVEMENT AND ASSAM ACCORD

The Assam movement was a popular movement against illegal migrants in Assam led by All
Assam Students Union  (AASU) and the ‘All Assam Gana Sangram Parishad’ (AAGSP). It
called to unite all ethnic Assamese for the ouster of non Assamese from the State of Assam.
Both these organisations developed a program of protest and demonstration to compel the
Indian Government to identify and expel illegal immigrants and protect and provide
constitutional, legislative and administrative safeguards to the indigenous Assamese people.
The six years of Assam Movement culminated with the signing of the Assam Accord in 1985.
As per Clause 5 of Assam Accord, the citizenship of Immigrants prior to 01 January 1966
was be regularised. Those who had migrated between 01 Jan 66 to 24 March1971 and their
cases had been registered with Foreigners Tribunals, no voting rights were to be given for 10
years and citizenship be was to be regularised thereafter

4. NRC PROCESS AND DEVELOPMENT

1
The Foreigner Act , 1946”, available Indiacode.nic.in/bitstream/123456789/6803/1/foreigners_act_1946.pdf,
accessed on September 05, 2019.
2
“The Immigrants (Expulsion from Assam) Act, 1950”, (last visited Nov 09, 2021, 09:30 PM) available at
https://indiankanoon.org/ doc/1523917/
3
Id

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Even after the Assam Accord was put in place and signed, the process of detecting and
deporting immigrants never took place officially. The only attempt at detecting foreigners by
updating the National Register in Assam was through a pilot project which was started in
June 2010, which ended abruptly within four weeks amidst a huge law and order problem
involving a mob attack on the Office of the Deputy Commissioner, that resulted in police
firing killing of four persons.4  Considering the volatile nature of the issue, for a long time,
particularly after the experience of the pilot project, NRC update was considered almost an
impossible task. Though the NRC process started in 2013, the actual work on the ground
commenced in February 2015 with the process of setting up of the NRC Seva Kendras and
more than 3.29 crore people applied for inclusion of names in the NRC along with more than
6.6 crore documents. The first draft containing names of 1.90 crore applicants was published
on 31 December 2017 followed by the process of verification of family trees or the legacy
data and the certificates issued to married women by Panchayat secretaries. Many bogus and
forged documents were detected in the process of verification and the family tree verification
was considered to be the game-changer as in a large number of cases mismatches in family
trees were detected. Second, the complete draft was published 31 July 2018 and names of
more than 40 lakh applicants were not included as they were not found to be eligible. 5 The
final list of Assam NRC has been released and over 19 lakh people have been left out of the
final NRC list.6

5. ROLE OF SUPREME COURT

The most momentous Supreme Court judgment in terms of its procedural implications was
the 2005 Sarabnanda Sonowal case7. The case involved the constitutionality of the Illegal
Migrants (Determination by Tribunal) (IMDT) Act, 1983 that provid- ed procedures for the
identification of foreigners in Assam. The legislation was based on the objective that this
identification should have adequate safe- guards against misuse and minimize the possibility
of targeting genuine Indian citizens. The most disconcerting facet of the judgment was its
reasoning. It held that the IMDT Act vio- lated the Union’s constitutional duty under Arti- cle

4
National Register of Citizens to be updated in Assam’ The Hindu, March
18,2013,ttps://www.thehindu.com/todays-paper/tp-national/national-register-ofcitizens-to-be-updated-in-
assam/article4520748.ece
5
R Dutta, “Events which made NRC a Reality” The Assam Tribune, July 31, 2018, (Nov, 09, 2021, 09:45 PM)
available at http://www.assamtribune.com/scripts/mdetails.asp?id=aug0118/at060,
6
Assam NRC list RELEASED! Over 19 lakh excluded” Financial Express, August 31, 2019, (Nov, 09, 2021,
09:45 PM) https://www.financialexpress.com/india-news/assam-nrc-2019-final-list-howto-check-names-in-
national-register-of-citizens/1689833/.
7
Sarbananda Sonowal v. Union of India. Writ Petition (Civil) 131 of 2000

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355 of the Indian Constitution to protect states from external aggression. Illegal migration, in
the Court’s view, amounted to external aggression. The Court relied on the factually and
legally spurious ground of national security to practically drum up paranoia about an ‘Islamic
invasion’ through ‘infil- trators’. The Court relied on this ground to strike down the IMTD
Act and place the burden of proof on individuals rather than the State. It directed that all
questions of citizenship determination must be referred to the FTs.

The FTs, though, have consistently deviated from basic standards of due process and fair tri-
al. While in some important cases, for instance in State of Assam v. Moslem Mondal8 . High
Court did lay down guidelines for referrals to the tribunals, there is growing evidence that
these guidelines are rarely followed in practice

Since the initiation, the Supreme Court left another crucial question unanswered. The original
Citizenship Act of 1955 adopted the jus soli or birthright citizenship principle by extending to
all persons born in India the qualification to be Indian citizens. Subsequent amendments to
the legislation diluted this jus soli principle, but partly retained it. The current position of law
is that anyone born in India before 1 July 1987 would be a citizen by birth. Anyone born
between July 1987 and before 3 December 2004 would need at least one Indian parent to be a
citizen by birth. And for anyone born after 3 December 2004, to qualify as a citizen by birth,
neither of the parents should be an ‘illegal migrant’. In 2019, Prateek Hajela, the coordinator
of the NRC, asserted before the Supreme Court that these rules were inapplicable in Assam.
According to him, even if a person was born in Assam before July 1987, she must be
excluded from the NRC if any of her parents was a suspect foreigner or declared to be a
foreigner by the FT. This position was completely contrary to the Citizenship Act and was
expected to leave out innumerable persons from the NRC. Despite this, the Supreme Court
left this question hanging, and instead ruled that it would address it—after the completion of
the NRC process—in a separate judgment. In doing this, the Court left innumerable persons
in a state of utter uncertainty and flux

The Court continued to supervise the NRC through means that also compromised the
accepted legal standards of transparency. The most profound example of this is the consistent
use of ‘sealed envelopes’ by the judges to appreciate evidence. For example, in late 2014, a
bench headed by the then Chief Justice Gogoi asked the NRC coordinator to submit the steps
and measures he was taking for the NRC update in a ‘sealed cover’. This soon be- came a
8
State of Assam v. Moslem Mondal. 2013 SCC OnLine Gau

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pattern. Keeping such crucial information hidden from the public—and sometimes even from
the government and affected parties—makes the legal process dangerously opaque. This has
had a severe impact on the transparency and accountability of the NRC administration during
the course of the update. Rather than keeping the executive body accountable through the
judicial process, the courts have essentially become the administrators, while maintaining
silence and secrecy.

6. CONSEQUENCES OF THE PROCESS

The NRC process has destabilized the citizenship of millions of Indians, threatening to
produce statelessness on a scale unknown in any democracy. In its design and
implementation, the NRC is an arbitrary and opaque system, which consequently weakens
stable citizenship. It has introduced a lingering frightening uncertainty in people, about
whether they would remain Indian citizens, be locked up for years in detention centers, forced
to live as doubtful or non-citizens without elementary rights to access a range of public goods
including owning property or accessing social protection such as subsidized food grains, or
indeed be deported. This debilitating and humiliating instability and uncertainty marks the
lives not only of those who were ultimately excluded from the NRC, but also those who had
to go through the maze of burdensome bureaucratic procedures to prove their citizenship.

This unstable citizenship—that has rendered innumerable residents of the state precarious—
amounts to adverse exclusion, especially of those belonging to vulnerable communities. The
precarious citizens of the state were subjected to overly burdensome and often discriminatory
procedures. These persons were compelled to divert all their meagre resources, time and
energy—away from pursuing their lives and livelihoods—towards establishing their
citizenship. This process heightened their vulnerability and engendered fear, harming their
dignity and freedom. To make matters worse, the State has failed to announce its policy for
those who are ultimately excluded after exhausting all the legal remedies. The gravest
violation of constitutional justice of the entire NRC process in Assam, which now threatens
to imperil minorities across India, is that to date the Union Government has not clarified what
will be the fate of people who are finally declared to be foreigners. Neither the Supreme
Court nor Parliament have compelled the government to clarify what the destiny of possibly
one to two million people in Assam will be, if they are finally declared to be ‘foreigners

6.1 STATUS QUO AND STATELESSNESS

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It is important to remember that India is not a party to the 1951 Refugee Convention or
accompanying protocols. Despite this, the United Nations Refugee Agency (UNHCR)
operates in different parts of the country and assists with the influx of refugees where it is
permitted to do so.9 One of the greatest challenges, it appears, is under Indian law where ‘the
term foreigner is used to cover aliens temporarily or permanently residing in the country.
This places refugees, along with immigrants, and tourists in this broad category.’10 Under the
1954 Convention on Statelessness (‘Statelessness Convention’), a stateless person is defined
as someone who ‘is not considered as a national by any State under the operation of its law.’ 11
In 1961 the United Nations adopted the Convention on the Reduction of Statelessness (‘1961
Convention’). The 1961 Convention, as will be discussed later, ‘sets rules for the conferral
and non-withdrawal of citizenship to prevent cases of statelessness from arising.’ 12 India has
not ratified relevant international treaties including United Nations 1951 Convention Relating
to the Status of Refugees (‘Refugee Convention’) or the Statelessness Convention. 13 India has
a duty under customary international law and its treaty obligations to prohibit arbitrary
deprivation of nationality, to avoid non-discrimination in matters pertaining to nationality,
and to avoid statelessness.14 This duty to not deprive people of nationality is particularly
emphasized in the Universal Declaration of Human Rights in Article 15. Within the Indian
national system, the Indian Constitution and the Citizenship Act guard the parameters
regarding citizenship. The Citizenship Act is complemented by the Citizenship Rules, which
are the rules of procedure. The Citizenship Act allows people to obtain citizenship through
‘registration’ unless one is an ‘illegal migrant,’ thereby disqualifying them from this
particular process.15 The Citizenship Act has two sections relating to termination and
deprivation of citizenship, but contains no procedure to prevent statelessness16

9
Rina Chandran, ‘Poverty and politics trip up urban refugees in India’ (2018) Reuters accessed 29 June 2019;
United Nations High Commissioner for Refugees, ‘India’ (2011) UNHCR Global Appeal 2011 2019.
10
Arjun Nair, ‘National Refugee Law for India: Benefits and Roadblocks’ (2007) 11 Institute of Peace and
Conflict Studies.
11
Convention Relating to the Status of Stateless Persons (adopted 28 September 1954, entered into force 6 June
1960), art 1(1).
12
Convention on the Reduction of Statelessness, (adopted 30 August 1961, entered into force 13 December
1975) 3
13
While India has not signed these treaties, it has since 1995 been a member of the UNHCR Executive
Committee and Executive Committee member of the International Office of Migration since 2008. Sanjeev
Tripathi, ‘Illegal Immigration from Bangladesh to India: Toward a Comprehensive Solution’ (2016)
14
Alice Edwards, ‘The meaning of nationality in international law in an era of human rights’ in Alice Edwards
and Laura Van Wass (eds), Nationality and Statelessness (CUP 2015) 25.
15
Sitharamam Kakarala, India and the Challenge of Statelessness: A Review of the Legal Framework Relating
to Nationality (National Law University Delhi Press 2012) 37
16
Id

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Based on the lack of protection for stateless people in the national laws, it comes as no
surprise that the Assam government would promote a policy option of statelessness.
However, it is also clear that the situation in Assam was not created overnight, and many
variables have caused this perilous situation to be ripe for creating a large stateless population
and continued human rights violations to continue. It appears the status quo NRC issue was
created by three overarching variables: (1) the lack of legitimate demographic information;
(2) ethnic violence; and (3) hate speech by political parties. These three variables all
intertwine with each other to have created a policy choice that revocation of citizenship is the
only way to respond to perceived threats from illegal immigration

7. DETENTION CRIMINALISATION

Once an individual is declared a foreigner, they may be held in a detention center. Detention
serves to confine those deemed “illegal foreigners” and to criminalize the community and
identity they represent .17 Without established limits and no protocols for meaningful and
ethical resolution of the matter, detentions can be prolonged or indefinite. 449 In November
2019, 1,043 persons18 were reportedly being held in detention at six centres across Assam. In
February 2020, there were reportedly 834 persons in detention, 559 Muslims and 275
Hindus.19 In March 2020, it was reported that 3,331 persons had been held in the six detention
centres in Assam.455 Earlier, detainees have organized hunger strikes. At the end of May
2021. The six detention centres operate within existing jails in the districts of Dibrugarh,
Goalpara, Kokrajhar, Jorhat, Silchar, and Tezpur.458 Reportedly, presently there are 31 jails
in Assam: 22 jails at the district level and six jails at the central level.459 As of April 2020, at
least 30 persons have died in Assam’s detention center. In January 2018, a civil society fact
finding team reported that the detention camps appeared to function in violation of Indian
laws. In various instances, the detainees had fewer rights than convicted prisoners who were
deemed to be citizens. The convicted prisoners had the right to parole, the right to
communicate with family and to “walk, work and rest in open courtyards

On May 21, 2020, the Supreme Court of India prescribed that “illegal foreigners” held in
detention in Assam for over two years must be released to avoid overloading such facilities. 20
17

18
IANS, “Seven Released from Assam Detention Centers on Bail,” Outlook, (Nov 12, 2021, 10: 30 PM)
https://www.outlookindia.com/newsscroll/sevenreleased-from-assam-detention-centres-onbail/1668241
19
Kaushik Deka, “The Truth About Assam's Detention Centers,” India Today, (Nov 12, 2021, 10: 30 PM)
https://www.indiatoday.in/india-todayinsight/story/the-truth-about-assam-s-detentioncentres-1644836-2020-02-
10
20
Global Detention Project, “India.

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In September 2020, approximately 350 persons were granted bail and released from
detention, in adherence with the Supreme Court’s order to decongest over-capacity prisons
during the pandemic.21 On October 9, 2020, the Guwahati High Court in Assam stated that
individuals designated as either “foreigners” or “illegal immigrants” may not be detained in
jails.22 In May 2021, it was reported that detainees continued to be held in facilities with those
imprisoned for criminal offenses.23 It remains the case that technically they may remain in
detention until deported. The state government may send individuals against whom decisions
are given by a tribunal to a detention center. It remains unclear which laws may be applicable
to these centers. Individuals are expected to remain in detention unless they receive bail,
which can prove expensive for the family and the community, or until they are deported

7.1 ARBITRARY DETENTION

The government’s cavalier attitude towards human rights is perhaps best reflected in its
detention of people declared as foreigners. Binding international norms like the International
Covenant on Civil and Political Rights prohibit arbitrary detention as a matter of right.
Detention must have a legitimate purpose and be proportional in each case. Proportionality
under international law and Indian Supreme Court’s judgements requires that detention must
have a connection with its purpose and must be necessary. It follows from this that detention
must be the measure of last resort and individual cases must be regularly reviewed. India’s
detention practices fail these standards. The government maintains detention centres within
jail compounds without any semblance of a transparent detention policy. It has neither clearly
laid down the purpose of detention, nor explored alternatives. There is no individualised
review policy in place. There is no time limit to deport detainees. In fact, the government has
told Bangladesh that it does not seek to deport anyone. Detention, for all practical purposes,
is indefinite.

8. THE GLOBAL COMPACT ON MIGRATION AND REFUGEES

In 2016 the United Nations General Assembly (UNGA) adopted a political declaration,
known as the New York Declaration to address and respond to the ‘growing global

21
“Assam: 350 Detention Camp Inmates Released On Bail During Covid-19 Pandemic, Says Center,” The New
Indian Express, September 21, 2020.
22
Rahul Karmakar, “Assam Jails Cannot be Detention Centers: HC,” The Hindu, October 9, 2020, ProQuest
Document 2449372262
23
Covid-19 Outbreak at Assam's Karimganj District Jail, 34 Prisoners Test Positive," Hindustan Times, May 8,
2021, ProQuest Document 2523100100; Punjab Prisons, “Foreigner Prisoners Lodged in Jail of Punjab as on
28-02-2021,”https://prisons.punjab.gov.in/about-us/detailsforeign-nationals/?page=1.

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phenomenon of refugees and migrants’24 particularly through ‘large movements.’ The New
York Declaration attempts to define ‘large movements’ as reflecting ‘numbers of people
arriving, economic, social, and geographic contexts, and the capacities of States to respond.’
In addition large movements have ‘political, economic, social, developmental, humanitarian,
and human rights ramifications.’25 The UNGA through the New York Declaration sought to
address the root causes of large movements of refugees and migrants through ‘increased
efforts aimed at early prevention of crisis situations based on preventive diplomacy.’ 26 The
New York Declaration provided the initial framework for the ‘Comprehensive Refugee
Response Framework’ (CRFF) which is an ‘integral part’ 27 of and informs both the Global
Compact on Refugees (GCR) and the Global Compact on Migration (GCM). India supported
and signed the New York Declaration28

9. REFUGEES

Briefly, the CRFF makes four recommendations which include easing pressuring on host
societies, encouraging and supporting refugee self-reliance, expanding third-country
solutions, and supporting conditions in countries of origin for safe and dignified return. 29 For
successful implementation of the CRFF a mind-set shift within the four areas identified. 30
These recommendations are enveloped in the GCR, which like the GCM, is not legally
binding. For the purposes of this article, it is important to focus specifically on the
statelessness aspects of the GCR. The GCR is complimented by the statelessness
conventions31 and the mandate holder of the GCR is the UNHCR. The GCR provides certain
tools that may be of use to India, as a host country. The first tool of great importance would
be collecting reliable data on those who are refugees and stateless people. 32 This arguments
advanced by the Assamese and Indian government. Another tool outlined is the ‘contribution
of resources and expertise for the establishment of mechanisms for identification, screening

24
United Nations General Assembly, ‘New York Declaration for Refugees and Migrants’ (13 September 2016)
A/71/L.1, para 2.
25
Id
26
Id
27
Id
28
Pallavi Saxena and Nayantara Raja, ‘The imperative to offer refuge’ (2018) The Hindu accessed 29 June 2019
29
Randall Hansen, ‘The Comprehensive Refugee Response Framework: A Commentary’ (2018) 31(2) Journal
of Refugee Studies 131.
30
Manisha Thomas, ‘Turning the Comprehensive Refugee Response Framework into Reality’ (2017) 69 FMR
Rev
31
Report of the High Commissioner for Refugees,para 5.
32
Id

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and referral of those with specific needs to appropriate and accessible processes and
procedures.

10. SUGGESTION/RECOMMENDATIONS

It has been more than a year since the final NRC was published. The government has not
published the gazette notification. Rather, the Assam government is trying to discredit the
NRC and is advocating a fresh NRC along with the national NRC. This would be nothing
short of calamitous for the linguistic and religious minorities of Assam. It would mean that
even those among these intensely vulnerable people who had been through a trial of fire to
prove their citizenship to a hostile bureaucracy against immense odds would have to start all
over again, and would need to go through similar painful and traumatic processes once more.
The first recommendation is that the authorities should immediately issue identity cards to all
the people who included. Those who were excluded from the NRC list are living through an
immense degree of anxiety and uncertainty. The authorities should immediately release to
them the ‘reason of rejection’ and kick-start the process of determination of their citizenship
in a fair and judicious manner.

TRANSPARENT JUDICIAL PROCESS

Since citizenship is undoubtedly one of the most significant rights under international law
and has the most valued status under India’s constitutional scheme, there is an even greater
need to secure fair trial and due process while dealing with the question of citizenship
determination and verification. From this perspective, it is an anomaly that citizenship
determination in Assam is being conducted not before India’s courts but through the FTs. In
fact, the government has consistently diluted the need for judicial experience for someone to
be appointed as an FT member.

. The question of citizenship determination should be left not to administrative bodies but to
courts, which are more adept at evaluating evidence. For example, under the Immigration
Act, 1971 of the United Kingdom, while the State does exercise the right to deport non-
citizens, the question of determining whether a person is a UK citizen or not involves
ordinary courts. Similarly, revocation of naturalization in the United States un- der the
Immigration and Nationality Act, 1952 also involves judicial determination by courts. French

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law requires courts to determine if a person is a citizen owing to the ‘inherent difficulties in
providing proof of French nationality’33

FAIR LEGAL RULES OF EVIDENCE

Some of the biggest concerns about the FT process and by extension, about the appeals after
NRC exclusion have been about the faulty appreciation of evidence. Since the FTs are not
legally bound by the Indian evidence law, extensive documentation has shown that they rely
on hyper technicalities, minor contradictions and overly burden- some evidentiary
requirements to declare persons foreigners. These problems demand a serious review of the
FT process in relation to the appreciation of evidence. The FTs must apply ordinary
principles of evidence law as a rule. They must accept both documentary and oral evidence.
Grounds of suspicion and enquiry reports must be made available to the individuals the
moment notices are issued. Individuals should also not be required to certify government
documents in their possession. The State is better placed to authenticate and present these
documents to the FT. The State must appoint government pleaders during all proceedings,
and the FT members must ask the State—as is the case in any normal legal proceeding—to
assert its own evidence and rebut the individual’s evidence

NATURALIZATION OF EXCLUDED PERSON

One of the most worrying features of the NRC process is the uncertain fate of the persons
who ultimately are unable to establish their citizenship during the appeals from their
exclusion. International organizations have already raised concerns about a crisis of
statelessness, and potentially a refugee crisis resulting from the NRC. In this light, there is a
need to consider the best policy and legal measures to address this impending crisis

CREATE ALTERNATIVES TO DETENTION

Under Indian and international law, any detention that is without legitimate purpose and
disproportional is illegal.17 It is the duty of the State to identify less intrusive means in case
there may be any justified reason to secure a person. Indefinite detention would always be
illegal.18 The Indian government has not made its long-term policy regarding the ends of
detention clear. Nor has it raised this matter diplomatically with Bangladesh, despite the
rhetoric of deportation. In these circumstances, detention of any person excluded from the

33
Commentaire Décision n° 2013-354 QPC du 22, novembre 2013 (Mme Charly K), Conseil constitutionnel,
quoted in p. 9

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NRC or through any other route of citizenship contestation would be illegal. The State must
affirm that no person will be detained and create alternatives to detention.

11. CONCLUSION

Nearly 32 years after the Assam Accord was signed, the final draft of NRC has come out in
which total of 31.1 million people were included in the NRC leaving out 1.9 million people.
NRC remains as much of a legal question as it is a moral one, weighing the right of the
refugees on one hand against the rights of the native communities. It essentially becomes the
question of safeguarding the culture, language and ethnic values of a community against an
illegal (not necessarily immoral) invasion at the hands of a historically connected by
geographically divided communities, whether the state owe a primary responsibility to its
citizens or a greater responsibility towards its commitment to protect human rights.

India has committed itself as the safe-harbour, and crusader against minority persecution, as
the protector of minorities around the world. The melting pot of global civilizations would be
an understatement for the said bill; however, the Government has to ensure at the same time,
the conservation and protection of ethnic, cultural and linguistic groups within the Union,
who have their fair share of apprehension regarding the same. As the Assam Accord had
promised for laws for protection of indigenous Assamese culture and tradition, though
remained unfulfilled, shall nonetheless be a model for creating a balance between the safe
harbour of minorities and rights of linguistic identities

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