Citizens VS Residents Aliens: NRC Criticism

Introduction

India has been facing the issue of cross-border migration from the past few years. Citizens of Bangladesh, started migrating into Assam. People migrated illegally due to socio-economic and political reasons like poverty, unemployment, climate change or in search of better options for employment and education. Many people were undocumented. This migration posed an existential threat to the culture and language of people of Assam. This led to public protest against the illegal immigration.

Nations –states are devising stringent citizenship laws, and policies to minimize the burden of immigrations and guard against infiltration by illegal immigrants. To end these protests, NRC was declared in Assam. This register will exclude illegal immigrants and citizens of India. NRC exercise is done to identify the illegal immigrants and to deport them to their country of origin. After the publication of the final list of NRC, the excluded people will be allowed to appeal to the appropriate authorities to prove their citizenship. The deportation would succeed the bilateral verification process.

But NRC has been a subject of several controversies such as its implementation, legal and procedural questions, which has ultimately put a question on its authority. After the declaration of NRC in Assam, various questions arose regarding the constitutional validity of NRC.

NRC is violative of Article 14

NRC is violative of Article 14 enshrined in Part III of the Constitution. The state shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void”. [1] Article 14 is based on the rule of law and equality before the law. [2] Right to equality is a basic feature of the Constitution [3] and the parliament cannot transgress the principle of equality. [4] Article 14 strikes at arbitrariness in state action and ensures fairness and equality of treatment. [5]

There must be a reasonable classification between groups of people and that should have a nexus with the object sought to achieve. [6] NRC is not based on intelligible differentia and there is no reasonable classification. NRC creates a classification which is unreasonable and fails to satisfy the doctrine of reasonable classification. It should not be arbitrary, artificial or evasive. It should be based on an intelligible differentia, some real and substantial distinction, which distinguishes persons or things grouped in the class from others left out of it. [7]

NRC violates Article 14 as there is no reasonable relation to the object of the legislation. The NRC will force every individual to prove their citizenship to a government official. The classification done must be founded on an intelligible differentia which distinguishes persons or things that are grouped from others left out of the group. All of this is done without any credible information. Thus exercise is a clear instance of State action that is manifestly arbitrary. NRC gives State arbitrary powers to exercise in relation of declaring a resident as citizen/non-citizen without prescribing a fixed procedure.

NRC is Violative of Article 21

The act of government detaining the foreign nationals violates Article 21 of the Constitution of India, which states that “No person shall be deprived of his life and personal liberty, except according to the procedure established by law.” [8]. NRC compels the immigrants to live in the detention centres is within itself a violation of the right to life with dignity given under Article 21.

Right to health is a basic human right, which should be available to every person by being a human being. Right to health is a fundamental right under article 21. The failure to provide for proper health care facilities to the detainees in the detention centres, infringes the right to health. Thus such treatment towards the detainees violates their right to life, rendered to them under Article 21 of the Constitution.

NRC is inconsistent with the international obligations on India

India is a signatory to the International Conventions related to Human Rights, and therefore, being so, the state has an obligation to protect the human rights of all the human beings residing within its territory. Human rights are own by States to all the individuals within their jurisdiction and in some situations also to groups of individuals. The principle of universal and inalienable rights of all human beings is thus solidly anchored in international human rights law. [9]

UDHR

Article 3 of UDHR states that “Everyone has the right to life, liberty and security of person”. [10] In the present case, since the liberty of the foreign nationals has been taken away base on an arbitrary and discriminatory order, therefore, there exists a breach of the present article.

Article 9 of the UDHR says that, “No one shall be subject to arbitrary arrest, detention or exile”. [11]

Article 9 (1) of ICCPR states that “Everyone has the right to liberty and security of person. No one shall be subject to arbitrary arrest or detention. No one shall be deprive of his liberty except on such grounds and in accordance with such procedure as are establish by law”. [12]  In the present case, the detention of the immigrants in prisons, in the absence of any criminal act done by them, with the objective of deporting them to their native country, is, within itself, arbitrary in nature. Therefore, detaining them on such grounds is in violation of the said provisions.

Convention Against Torture

NRC violates the Convention against Torture. Article 1 (1) of the convention explains the term torture. Torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflict on a person for such purposes as obtaining from him or a third person information or a confession. Punishing him for an act he or a third person has commit or is suspect of having commit, or intimidating or coercing him or a third person; or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. [13] The act of detaining the foreign nationals in the detention centres amounts to physical torture under Article 1 of the convention.

Article 3(1)of the convention state that, “No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.” [14] The possibility of the lives of the immigrants being in danger, if deported to Bangladesh cannot be denied. Therefore, deportation of foreign nationals is against the said provision.

References