The fate of those excluded from NRC will haunt India: Senior advocate Sanjay Hegde

Rishi Kochhar for The Caravan
30 July, 2019

The updated National Register of Citizens, a list of Indian citizens in Assam that was first prepared in 1951, is due to be published on 31 August. According to the draft NRC published in July last year, and an exclusion list published this June, a total of forty-one lakh residents of Assam have been left out from the NRC. Their fate remains uncertain. While the updation process has been ongoing since 2013, it gathered significant momentum the following December, when a Supreme Court bench comprising Ranjan Gogoi and Rohinton Nariman passed a detailed order through which the court assumed a pivotal role in overseeing the implementation of the NRC project. Since then, the Supreme Court—and Gogoi in particular—have closely monitored the NRC updation, and paved the way for its earliest possible execution. This has included setting up additional Foreigners Tribunals—quasi-judicial bodies that adjudicate on the citizenship of suspected illegal immigrants—across the state.

The tribunals have faced severe criticism for the procedures adopted to determine an individual’s citizenship and the frivolous grounds on which it is denied. Sanjay Hegde, a senior advocate of the Supreme Court, has represented several people who have been declared foreigners. Ahead of the publication of the final NRC, Arshu John, an assistant editor at The Caravan, spoke to Hegde about his experience representing claimants, the Supreme Court’s role in the updation process, and the moral tenability of the NRC project. “The NRC is a bad idea because it begins on the postulate that some people have a superior right to be in this country and the rest better get out,” he said.

Arshu John: What has been your experience representing the people declared foreigners by the Foreigners Tribunals of Assam?
Sanjay Hegde: My appearances have only been at the Supreme Court at an appellate stage. What this means is that the matter has travelled from the Foreigners Tribunals, to the high court and then comes the Supreme Court. Appreciation of facts is only at the tribunal stage. Therefore, if a tribunal—on its reading of whatever documents are produced—takes a call, then it’s often the last word on the case.

It also often happens that the matter has gone ex-parte at the tribunal stage because people have not received notices—or claim that they have not received notices. Or they have hired lawyers who have either been absent or have not done an effective job. Or even if the party has been present and a lawyer has been present, there sometimes simply is no way of bringing documents that prove ancestry to an identified Indian citizen who was there on the land before 1966 or 1971 [as required under the Citizenship Act].

Even when documents exist, documents are also not necessarily in the complete format that the tribunal expects. A person’s name may be Mohammad-something, but at some places it could be shortened to “Md.” If the second name is Ibrahim, it could be spelt “Ib” or “Eb”—various things like that. The ages of the person concerned were often approximation in the old days when people did not have birth certificates. [They] relied on memory or whatever school records existed. It is very often very easy to discard such material produced saying that, “No no, this document contradicts another document, so we disbelieve both. Because we disbelieve the documents, you have not been able to prove beyond reasonable doubt that you are an Indian citizen descended from Indian citizens.”

AJ: When these cases go to the higher judiciary, do the judges account for these minor differences on spellings and age, or is that a question of fact that only the tribunal can adjudicate on?
SH: I do not know how many matters get away at the high court stage and when the high court intervenes in favour of the individual. But in all matters where it has ruled against the individual, often the theme has been the same—that we are not bound to appreciate evidence, but nevertheless we have looked at the evidence and we still feel that the tribunal is right in its appreciation. So, even when the high court looks at the evidence, there is an in-built confirmation bias.

As far as the Supreme Court is concerned, not everyone who loses in the high court can come to the Supreme Court. Most of them have exhausted all their finances and the finances of their family through the tribunal stage and the high-court stage. They come after delays to the Supreme Court and often they cannot improve their case because they still do not have any other documents. On the question of admission [of documents] in the Supreme Court, I have seen some [benches] take a very strict view, like the high court, and some [benches] tend to see individuals in trouble and they have been kinder in looking further. I can only speak from my experience—it may be typical and it may not be typical. But before I go to court, I know which benches are more likely to look kindly on such matters and which benches I do not think there is a chance.

AJ: Does it normally go to different benches?
SH: It used to go to different benches, but under this chief justice, most matters do end up before him.

AJ: The tribunals are quasi-judicial bodies whose members are appointed by and report to the state government. Have they been able to dispense justice in the prevailing political atmosphere?
SH: Members of the Foreigners Tribunals are not judges with any protection—they are members of tribunals appointed almost on a contract basis by the executive. They did not have their contracts renewed and they filed a writ petition in the Gauhati high court. They alleged [in the petition] that they are under immense pressure to declare more and more people to be foreigners. Consequently, it does appear to me that the scales are weighted against the individuals who are at the receiving end of their attention.

AJ: You co-wrote an article for the Business Standard in which you called the Supreme Court’s December 2014 judgment a “judicial prelude to ethnic cleansing.” Could you comment on the role the Supreme Court has played since the draft NRC list was published, in July last year?
SH: It’s not only over the past year. The updation of the NRC has been a judicially mandated exercise. The NRC of 1951 was a document that was not drawn up after public notice. It was a mere enumeration of all the people who the enumerators thought logically fell within the definition of Indian citizenship, and who were residents of the then state of Assam.

What this [NRC updation] exercise does is to trace out their descendants. Or it allows people to trace their ancestry to anybody who was enumerated out there. This exercise can be seen both ways—it can be seen as a Noah’s Ark or it can be seen as a list of exclusion. It is a Noah’s Ark because those who can prove ancestry to an ancestor in 1951 can at least say that their citizenship is beyond question. My simple point, however, is that those who are excluded—you cannot take it for granted in law that they are not Indian citizens. That is simply because there is nothing called Assamese citizenship—their ancestors may or may not have been registered in 1951 for various reasons. Nobody knew the importance of being registered at that time.

The mere fact that you are not on the updated NRC does not automatically take you out of Indian citizenship. There was a case that I appeared in, involving two people called Kismat and Ashraf, whose ancestors had migrated from Uttar Pradesh and Bihar into Assam. They were suspected to be of Bangladeshi origin. It took a Supreme Court order to ask the Central Bureau of Investigation to go and investigate their ancestors. Thereafter, the Supreme Court took all the evidence and sent it back to the tribunal, who finally freed them. The point is that the Supreme Court cannot send the CBI in aid of investigation of every person who is excluded. The mere fact that somebody cannot positively prove he’s an Indian does not negatively make him a Bangladeshi by default.

There is a United Nations convention, to which India is a party, against statelessness. The effect of treating the updated NRC as anything other than a Noah’s Ark is to effectively render such people stateless, and that is why I used the words, “a judicial prelude to an ethnic cleansing.”

AJ: Returning to the Supreme Court’s role over the past year, its active involvement has continued, and with consistent pressure to publish the final list by 31 July, which was later extended to 31 August.
SH: The court has been monitoring the updation of the NRC. The court has taken the view that its orders have to be followed in letter and spirit. The court is zealous about its implementation. There have been several people who have pointed out the administrative pitfalls, but perhaps the court believes that if it slackens even one bit then the entire exercise will come to naught. But I do not believe that the court should entirely ignore the humanitarian consequences of what is happening on the ground. We hear of violence—there are several reports of people dying of stress or committing suicide when they or members of their families look like they are unlikely to figure in the final Noah’s Ark.

I always thought that the Supreme Court was the citadel of the least and the last. But this is the first time I have seen the Supreme Court in an active mode of excluding “aliens.” And once you alienate a huge section of people, it is very difficult thereafter to regain trust.

AJ: And is this the first time that the court has played such an active role?
SH: Let’s put it this way: a lot of politicians and administrators have said that the progress on this updation would not have come to this stage but for the active monitoring of the Supreme Court. Now, the dangers of the Supreme Court actively supervising an administrative process is that all administrative processes will simply stop and await court orders. That is why, often, the judiciary in most countries governed by a rule of law and separation of powers is very careful not to get into proactive administration.

There have been several instances where large policy directives have been given [by the court]—there has been the sealing measure in Delhi, there has been the change to CNG. [The former refers to the ongoing clampdown on unauthorised construction in Delhi, while the latter is a 2015 mandate by the Supreme Court that compelled a shift to compressed natural gas as the only fuel for the national capital’s public-transport system.] Many of them have created large-scale disruptions and dislocations. But there has been nothing on this scale that has actively threatened to imprison, disenfranchise, extradite or in some other way exterminate, those who have not qualified to be in the Noah’s Ark.

AJ: A legal challenge to Section 6A of the Citizenship Act, which was enacted to provide separate rules of citizenship for Assam, is currently pending before the Supreme Court. The December 2014 judgment referred the question of Section 6A’s legality to a constitution bench, but proceeded with the NRC project assuming it was constitutional. What would it mean for the NRC, when the constitutional case is heard? Is it going to result in the NRC exclusions being treated as a fait accompli?
SH: The way I see it, whenever the list is finally completed, the updation of the 1951 NRC, in terms of documentation, may be a fait accompli. But the consequences of an updated document may or may not be a fait accompli. You can go through this entire exercise and then decide what this document is to be used for. Is it to be used as the ultimate determinant of citizenship, or is it to be used only as a defence whenever questions of citizenship arise?

AJ: Will this question be answered by the constitution bench?
SH: I cannot predict what the constitution bench will or will not do.

AJ: The chief justice Ranjan Gogoi’s involvement in the NRC project has been controversial for multiple reasons. For one, he is an Ahom by ethnicity and activists have asked for his recusal because as an Assamese resident, he comes under the ambit of the NRC. The human-rights activist Harsh Mander has also asked for his recusal due to his statements during the hearings. Do you believe that he ought to have recused himself from the NRC case?
SH: Recusal is a personal decision. Each judge has his own line on recusals. Justice Katju used to use what was called the “zamaana kharab hai”—the times are bad—principle: he would recuse himself from any matter where he remotely though that an accusation of bias could be levied. You must remember that the classic case on recusal is an English case called Dimes vs Grand Junction Canal, where the then chief justice who had decided the issue had only one share in the company. Yet the English court said that he should not have heard—not because he was biased, but because of a possible public perception that he may be biased.

Maybe the chief justice here does not think those precedents apply. But that is his decision. It’s between him and his conscience.

AJ: Gogoi’s involvement has also been controversial for seeking reports from the NRC state coordinator Prateek Hajela in a sealed envelope, effectively shutting the state and central government out of the process. What are the implications of this?
SH: Let me be very careful on what I say on this sealed envelope because I also argued in the Rafale deal, where also there were sealed envelopes. I do not like sealed envelopes. Either the material is placed before the court and it is shown to the other side, or the court should not consider it. I am not saying it, but some day, some person, may very well ask a question—what else was in the sealed envelope? That will embarrass the judiciary much more. You cannot close governments from the [NRC] process because ultimately who is going to implement your orders? I do not see the logic.

AJ: International law mandates that illegal immigrants can only be deported if there is a receiving state. Bangladesh has denied that its citizens are illegally residing in Assam.
SH: Please tell me, why should Bangladesh receive them? These are people who are born in India. Now, just because it is suspected that their fathers or grandfathers or great-grandfathers walked a few miles across the border—can you expect that these people who have been born here, who have known no other land, who have not been loyal to any other country, have a right to walk across? Does Bangladesh have any concept of ghar wapsi? [Ghar wapsi is a term given to religious conversion drives conducted by Hindu right-wing groups, which literally translates to “homecoming.”]

AJ: Given that Bangladesh is not going to be a receiving state, what does this mean for those who will be left stateless after the final NRC is published? What recourse does the law provide for them?
SH: These are matters of law and statesmanship that will haunt this country for a very long time. Bad ideas float in common bazaar gossip. When they are elevated to the level of constitutional principle, they tend to have irreversible consequences. We are now hearing murmurs of NRC all over the country. All those people [seeking the NRC to be implemented across India] have no idea that the NRC of 1951 never took place in any of their states, they have no idea that this is only an updation of that 1951 list, they have no idea of what it means to be a citizen of a multi-faith, pluralistic country. This is a bad idea. The NRC is a bad idea because it begins on the postulate that some people have a superior right to be in this country and the rest better get out.

AJ: What could be a basis for a pan-India NRC project?
SH: As I told you, I think this NRC and its updation is a bad idea. I do not want to contribute anything to making a bad idea worse.

AJ: In what form do you think we can expect a pan-India NRC to manifest?
SH: I cannot answer for what bad ideas can afflict the administrators of the day. I think that the idea of India as a pluralistic, multi-faith, multi-linguistic amalgam of cultures is the only way that we can keep a subcontinent-sized country together.

AJ: Even in Assam, there are a lot of people who do believe that there is a genuine immigrant crisis, who were not opposed to the NRC as an idea, but are opposed to the way it is being executed. Do you think a project such as the NRC is morally tenable in Assam?
SH: Moral questions are relative depending on the morals of the person. But essentially it all boils down to who is a pure Assamese and who is an immigrant. These definitions themselves are up for grabs. You must remember that the first Ahom who is celebrated there, Sukaphaa, came from Hunan. And where is Hunan today? It’s in China. So please, for heaven’s sake, since 1947, we are a new nation in the making. We may be several ancient identities. But this nationhood project cannot be held hostage to narrow ethnic or linguistic identities.

I, and my family, were migrants from Karnataka to Bombay. As a young child, I still remember, the terror that I felt when my mother told me not to speak Kannada in the streets of Bombay in the days of the anti south-Indian, Shiv Sena riots in the early 1970s. Now imagine a Maharashtra for Maharashtrians movement that had the power to detain in camps anybody who was not a Maharashtrian. That is what is happening and that is what the rest of India needs to learn.

This interview has been edited and condensed.