NRC: Lack of transparency about fate of illegal immigrants

In contemporary times, the impugned National Register of Citizens in Assam resembles another Pandora’s Box due to the ruckus it has unleashed. In practice, there is no such repatriation of illegal immigrants so far; however, it has given rise to fears that vulnerable immigrants who had made India their home will be subjected to forced repatriation. Hence, the issue requires an objective analysis.

The NRC got initiated in 1951 and has been updated in 2018. Interestingly, even the moot point of getting NRC updated is not a new idea since the Assam Accord in 1985 had decided that NRC would get updated. Thus, the NRC has had a legacy of its own; whether and how far it deserves appreciation is a point apart.

Regardless of the scepticism surrounding the exercise, the NRC deserves appreciation as public documentation by the State to keep track of its own people. Also, there has been another parallel public documentation, with similar — more targeted — agenda: the voter identity card, which, interestingly enough, didn’t attract protest. This too, hadn’t initiated pushback of illegal immigrants while the world over we are seeing a concerted drive against illegal immigrants.

While poverty in India is rife, the additional burden of feeding the population from the neighbourhood appears unsustainable. There should be a clear distinction between refugees and illegal immigrants. Every push-back of outsiders cannot be held as ‘refoulement’ — necessitating forced repatriation. Refugees are entitled to rights against forced repatriation — something not applicable to illegal immigrants — under Article 33.1 of the Refugee Convention, 1951. Exceptional cases apart, demographic disaster in Assam was but a case of economic migration. Refugees deserve protection against forced repatriation on humanitarian grounds.

Even in the universal context, ‘non-refoulement’ is subjected to limits of its own. For instance, the issue of national security constitutes valid reasoning under Article 33.2 of the Refugee Convention. Countries that are parties to the Convention, cannot send refugees back by force. India is not bound by any such legal obligation under this Convention. Still, as responsible stakeholder of the law of nations, India is adhered to the same in practice since (i) ‘non-refoulement’ constitutes an international custom to cover one and all the states including India; (ii) ‘non-refoulement’ is within the coverage of right to life and personal liberty clause under Article 21 of the Constitution; (iii) besides, in its given historical setting, India has had moral obligation not to push them back since these immigrants belonged to its own citizenry until fateful Partition of 1947.

In its essence, NRC poses a dilemma of governance. Whether the economic interests of the local people constitute a criterion for forced repatriation needs objective analysis. Also, the State needs to identify whether its policy should be driven by cartography — artificial boundaries that determine territorial integrity — or the demography of regional clusters with shared ethnic characteristics. Indeed, one needs to treat this issue with care and caution since it runs the risk of falling victim of real politik. This politics of exclusion may affect another cluster of the population, for the Nepalese and Bhutanese populations. Thus, it is critical to maintain transparency about the object and purpose of NRC as a record of public documentation.

In final count, rather than NRC, it is the deafening silence of the State about NRC that creates the crisis. Neither the pro-documentation lobby nor those opposed to documentation is aware of the intention of the State. Hence all claims about NRC are speculative in essence. 

Therein lies the real crisis: it is not so much about public documentation as about the lack of transparency over its purpose. The sooner there is official communique, the better is for all stakeholders.

Author is Associate Professor, School of Law