After rolling out the National Register of Citizens in Assam, the BJP-led government at the Centre has said it will conduct a similar exercise in the rest of the country. Political Studies professor Sanjib Baruah and Supreme Court senior advocate Colin Gonsalves examine the implications of such an exercise in a conversation moderated by Abdus Salam . Edited excerpts:
What’s your verdict on the NRC exercise in Assam? Would you categorise it as one that met its objectives?
Sanjib Baruah: Of course not. It was an unprecedented bureaucratic exercise, which has a particular history. But the fact that in a democracy 1.9 million people are excluded from it can’t be a simple matter. Even if it is a transparent and technology-driven process, as [NRC State Coordinator] Prateek Hajela puts it, the people who are excluded are mostly the poor. The idea that in a country like India, you can bring in everybody into a documentary regime of the state is a far-fetched one.
Colin Gonsalves: I will speak from my experience of attending a people’s tribunal in Guwahati recently. It’s been an unmitigated disaster. We must look at the NRC from two points of view. The first is the absolute chaos of 1.9 million people being excluded. The kind of tribunals that you have, without judges; you had to add judicially trained officers as judges. And without legal aid being provided to the people. Any adjudication process without legal aid for the poor is a null and void adjudication. And any adjudication on a tribunal without a judicially trained person there is a null and void adjudication. It is a terrible legal failure of the entire system in which the judiciary itself has played a very negative role, to put it mildly.
Then the aspect of incarceration of people. That you can incarcerate stateless people is unheard of. Even in the minds of the general public, the opinion has been very strong, that what has happened in Assam should never have happened. If you also look at it from the point of view of the indigenous people, the sort of steps that ought to have been taken to protect their rights have not been taken. That’s another travesty of human rights taking place.
SB: I agree that the NRC process has become bizarre, but how did it start? If you think about how the Supreme Court got into the act, it was really a public interest litigation. Anuj Bhuwania’s critique of PIL in Courting the People: Public Interest Litigation in Post-Emergency India was wonderful, where he says to begin with it was a tragedy, and over time it has become a dangerous farce. Normally the executive does something and you go to the court to resolve the problem. Instead we ended up in a situation like this. How did the Supreme Court acquire this kind of power?
There is a certain history to how this exercise came to be conducted in Assam. Do we need a countrywide NRC?
SB: I don’t really think we can separate the NRC from the very particular circumstances of Assam. Why is it that only Assam has NRC? Indian citizenship law is such that Assam is the only place where there’s an exception. The idea that you can do an NRC on an all-India scale is bizarre.
I don’t want to separate the NRC from the Citizenship Amendment Bill (CAB). When politicians talk about the NRC being extended to all over the country, they have something specific in mind. First [they want to pass] the CAB. NRC has become a metaphor for something else which is not Assam-specific. This has to be stopped right at the beginning.
CG: I agree with Sanjib 100%. We don’t need to get into this foolhardy kind of exercise which is likely to divide the nation terribly. The thing is, the government, because they have the mandate of the kind they got, thinks they can merrily go ahead and divide the country along all kinds of lines, particularly religious lines. But this is an anti-national measure of the most grievous sort.
I agree it’s a problem when you migrate in numbers to another State. It happens for years and years under different governments, including the present one, and you don’t handle it. And when you set about handling it, you do it in such a communal, divisive manner that it exacerbates the problem. You can’t answer the question by saying NRC, because NRC has taken a very different colour now from the original idea of a cut-off date. You have the Supreme Court saying you need it because you have an enemy invasion into Assam! It is a Supreme Court-created problem. You could have dealt with the problem in a much more sane and rational manner. This exercise [in Assam] should have not been undertaken in the manner that has been done. Today you’ve come to a dead end. You know 1.9 million people are there. And you can’t push them back at gunpoint across the border with Bangladesh. What are you going to do? We have senior BJP people saying in discussions and on television, ‘We’ll see.’ What will you see?
SB: Because Assam was out of their optic, the Indian judicial fraternity never thought about the consequences. It was nothing unexpected, they can’t be surprised by it now. I don’t think we can just blame the BJP, the judicial fraternity has to take a bigger part of the blame.
Was it an executive process that was taken over by the judiciary? Could it have been done differently?
SB: I wouldn’t say that. You can’t ignore the history of how the Supreme Court gets involved in something like this. None of the activist lawyers challenged the Supreme Court verdict in Sonowal [2005, which struck down the IMDT Act], the PIL process. Suddenly when the PIL system works against what the activist lawyers want, they blame the Supreme Court. There’s been an enormous irresponsibility on the part of the judicial fraternity, in which I include activist lawyers.
CG: I understand what Sanjib is saying, that you can’t separate the lawyers from the judges. The entire system operated in an anti-people way for a long time. But I doubt if there’s any activist lawyer who agreed with the Sonowal judgment. That’s a bit of an extreme criticism. I support the PIL jurisdiction even though I agree it has been misused.
If the government could do what it did in Jammu and Kashmir, a nationwide NRC is possible. How does that square up with the existing laws on citizenship? The NRC exercise was conducted only in Assam in 1951. One doesn’t have anything similar for the nation as a whole...
SB: All these statements that I look at by [Union Home Minister] Amit Shah and other politicians... to me, when they say they want to have NRC all over the country, they don’t mean that in the way you and I might think. They mean NRC, but before that the CAB. That is extremely important to remember because the Bill has to be challenged. I don’t think any BJP politician will want NRC extended anywhere, even in Assam, without the CAB. There is the important legal challenge waiting. The judicial fraternity should be getting ready to challenge that particular law. Because then you will find that the idea of extending it all over the country will fizzle out.
In terms of the rest of the country not having a 1951 register, that may not itself be a hurdle because after all, in Assam 1971 becomes the critical year. In theory, it’s extendable.
CG: Let’s look at it in a very broad way. This is a government with a huge mandate. It’s also a government which doesn’t recognise the rule of law. It is a government which believes that even if it passes a law that is traditionally considered anti-Constitution, they can get it through. Any law they want to adjust for identification and inclusion of so-called foreigners, they can do it. I don’t put it beyond Amit Shah to devise a method when he says we’re going to have it in all the States.
Is this at its core a political project, an electoral talking point for West Bengal? That’s another State that has had large-scale migration from present-day Bangladesh.
SB: No doubt, but it’ll be misleading to think it is only that. Unless we build public opinion and understand the consequences of what they have in mind — the CAB and NRC extension together — it will be hard to build a legal-intellectual resistance against it. So at that level, I don’t want to take it lightly. It may be a political talking point, but they may be more serious than that — but only with the two together.
CG: The political thinking behind it seems to be pretty clear. I see a negative kind of clarity. Which is that if you have sizeable sections of the majority community illegal by present standards, the Central government says we will regularise you.
Does the all-India NRC talk pander to majoritarian sentiments by targeting minority populations?
SB: It is by definition majoritarianism. What we are seeing in the last few years in terms of the political shift in the country, it is indeed neo-nationalist Hindu majoritarianism. If that is the case, all of this fits into that framework. The NRC, with its own particular history, is acquiring a very different meaning in the hands of majoritarian politics.
CG: There’s another focus I want to bring into this conversation. The tribals and tribal organisations are absolutely hostile to further migration into the States. I heard Amit Shah say that we are going to make a little change in the CAB. I have a feeling he was hinting at an Inner Line Permit (ILP) kind of protection.
SB: Clearly, the opposition to the CAB was widespread in north-east India. It can also be seen as his [Amit Shah’s] attempt to get their consent to the Bill... in that any State that already has an ILP, why are you opposed to it?
Do you see a government that is working according to plan? Or is it one that is figuring out things as it moves along?
SB: What worries me in this new rhetoric of extending the NRC, when I take into account the kind of politics of majoritarianism, is they may have a plan in mind. The judiciary still has autonomy. I would really take challenging the CAB and its constitutionality extremely seriously for the reason that that is the critical thing which might make a difference in terms of the ruling party’s interest in extending NRC to the entire country. If that is not done, they would not be interested in it.
CG: I think it’s part of the Hindu Rashtra plan. That India is not just a democratic country, that’s a Western way of thinking. Some will argue that the Constitution is a Western document; we have our own Hindu Rashtra, documents and traditions. And we are superior to all these Western notions of human rights. So, we are going our own way and people will continue voting for us, so why should we bother about what the rest of the world thinks of us? That is a path to disaster. And India will experience it in its own way.
SB: Colin’s pessimism is not quite warranted. I think he takes it as a lost battle. I don’t do that as yet.
CG: I’d be happy to lose this battle as well!
