06, Jun 2019 | CJP Team
In a scathing letter to the Government of India, five senior officials of the United Nations have expressed regret at the lack of response from the government on previous communiques where they had highlighted concerns about instances of human rights violations taking place during the processes and procedures related to the update of the National Register of Citizens (NRC) in Assam.
The letter is written by Leigh Toomey (Vice-Chair of the Working Group on Arbitrary Detention), David Kaye (Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression), Fernand de Varennes (Special Rapporteur on minority issues), E. Tendayi Achiume (Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance) and Ahmed Shaheed (Special Rapporteur on freedom of religion or belief).
Mincing no words they have raised concerns about “the rising tide of bigotry, stigmatization and scapegoating of all those perceived as “foreigners” and “infiltrators”, most of whom belong to racial, ethnic, religious or linguistic minority groups in India.”
Over four million people have been left out of the NRC draft, most of them from socio-economically backward communities. Now CJP, drawing from its previous experience in providing legal aid in Gujarat, will step in with a multi-faceted team of lawyers and volunteers to ensure that these people receive a fair chance while filing claims across 18 of the worst affected districts. Your contribution can help cover the costs of a legal team, travel, documentation and technological expenses. Please donate generously here.
The UN officials refer to their previous communications dated June 11, 2018 and December 13, 2018 and say, “We deeply regret that to date your Excellency’s Government has not yet responded to these communications, and therefore it has not provided us with any additional information and/or clarification to the substantive observations and questions.” The point out the Indian government’s callous attitude to the human rights crisis saying, “We deeply regret your Excellency’s Government absence of engagement in a dialogue with our mandates on a process with significant implications for the human rights and legal status of millions of individuals, and in particular of those belonging to minorities and living in remote and marginalized areas, most of whom may face statelessness, prolonged detention and forced return to countries in which they may have never lived in the past.”
CJP highlights NRC authority’s apathy, harassment of people
CJP has been highlighting how the apathy and harassment of people has continued and that NRC authorities have remained painfully apathetic in face of this huge humanitarian crisis. We had highlighted how staff at Nagrik Seva Kendras (NSK) were clueless about when to accept corrections applications. This later led to a deadline extension for the same. However, did little to address the predicament of economically backward and uneducated people who were unable to download the online forms.
We had also reported instances of bureaucratic apathy, for instance when 300 people left helpless and waiting at a hearing center for NRC claims finally got a hearing only due to CJP’s intervention in ensuring an official was made available for the hearing. We also showcased how people were being harassed by fixing hearings in locations far away from where they live. CJP has also brought to light the nefarious agenda of chauvinistic forces to keep people of certain ethnicities or religious backgrounds out of the NRC by filing false objection applications against them.
UN Rapporteurs list instances of rights violations
Echoing many of these concerns, the latest communique from the Special Rapporteurs also highlights several fresh instances of marginalisation, intimidation and harassment since the December 31, 2018 deadline.
The letter says,
“According to new the information received:
As of 31 December 2018, a total of 3.62 million individual revision claims have been filed, out of the total of 4 million people who had not been included in the draft NRC, released on 30 July 2018. Therefore, approximately 400,000 people, most of whom belong to ethnic, religious and linguistic minorities, appear to have failed to request the review of their application and were not in a position to further substantiate their initial application with additional documents.
“In addition, it is reported that until 31 December 2018, more than 200,000 objections were filed against people who were already included in the draft NRC of July 2018. Allegedly, Assamese nationalist groups filed the majority of these objections, just hours before the expiry of the 31 December deadline, and most of these objections may not have been supported by relevant documentation or specific reasons for such an objection, whereas “objectors” may have in some cases provided authorities with false names and/or addresses in order to avoid attending the objection hearing.
“On 8 May 2019, during the latest Supreme Court hearing on Assam Public Works v. Union of India & Ors., the NRC State Coordinator informed the Court that many of those who had objected to the inclusion of certain individuals in the draft NRC of July 2018 had not come forward before the appropriate panels dealing with such objections. In its response, the Supreme Court stated that “The State Coordinator is free to deal with all incidental issues that may arise, in his wise discretion and in accordance with law.”
“Despite the reported complex NRC modalities, including with regard to the verification of List A (legacy) and List B (linkage) documents, the reported inconsistencies and errors during the application and registration process, as well as the significant number of revision appeals and objections, on 24 January 2019, the Supreme Court maintained that the deadline for the publication of the final NRC list would remain 31 July 2019, and it would not be extended. In its 3 judgement of 8 May 2019, the Supreme Court stated again that “the process of preparation of the final NRC shall continue to ensure that the publication of the final NRC is made on or before 31.07.2019.”
“On 15 February 2019, the verification of the 3.62 million revision claims has started and it is expected to be completed within a period of only 4 months, on 15 June 2019. This new verification process does not, however, include those who have been already declared as “doubtful voters” by the Election Commission and thus excluded from the July 2018 draft NRC, or those who have been declared as “foreigners” and “descendants of declared foreigners” by the Foreigners’ Tribunals in Assam. District and sub-district officers functioning as authorised officers of the District Magistrate (District Registrar of Citizens Registration) will undertake the hearings for both the revision claims and objections, as per Section 6 “Level of Disposal of Claims and Objections” and Section 7 “Holding of Hearings” of the Standard Operating Procedure (SOP).
“However, it is reported that there are significant challenges with regard to the staffing of the review panels, and officers handling revision claims and objections may lack sufficient training, thus increasing the likelihood of revision errors, which in some cases may be also due to prejudice and bias against the claimants. In addition, it is reported that no changes can occur at the revision stage in the socalled “legacy person” or in the family tree declared by the applicant at the initial application stage.”
The UN Special Rapparteurs also raise concerns about Foreigners’ Tribunals. They not only highlight the problematic practice of disposing of cases ex parte, but also talk about the inadequacy of not only the number of such tribunals, but also the recruitment of judges who conduct the hearings. They say, “There are concerns regarding the composition of the new Foreigners’ Tribunals, including with regard to judges and prosecution members.” They also add, “Those declared as “foreigners” have slim chances of appealing the Foreigners’ Tribunals’ decisions to the Gauhati High Court. It has been reported that, to date, almost all contested cases have been dismissed by the High Court and only some of them have been remanded back again to the Foreigners’ Tribunals for a rehearing.”
The letter also raises concerns about the fast approaching July 31, 2019 deadline given how lakhs of claims are still being processed and nearly 2 lakh objections were also filed at the nth hour. The officials say in their letter, “We are concerned at the tight schedule which is set for the processing of approximately 3.62 million revision claims and the reported decision of the Supreme Court not to extend the deadline for the release of the final NRC, beyond the 31st of July 2019, despite the alleged procedural irregularities and inefficiencies, in particular with regard to access to relevant documentation and the insufficient capacity of the reviewing bodies and panels.”
They add, “Furthermore, concern is expressed over the filing of a significant number of objections against individuals included in the draft NRC of July 2018, many of which may not have been substantiated through the submission of evidence material. Such objections may place all those individuals who were initially included in the draft NRC, as well as their families, into a critical situation to prove their citizenship before the Foreigners’ Tribunals, with the risk of being declared as “foreigners”, face de facto statelessness, and without having the opportunity to appeal the Foreigners’ Tribunals’ decisions. They could be sent to one of the six detention facilities currently operating in Assam for this purpose (Goalpara, Kokrajhar, Silchar, Jorhat, Dibrugarh and Tezpur), or “pushed back” to their “country of origin”, as indicated in the State of Assam’s affidavit of 28 January 2019, in the case Harsh Mander vs Union of India & Anr.”
The UN officials end the communique with nine questions and requests for clarification. The entire letter may be read here.
Annexure on international conventions
There communique also has an annexure that shows which international laws and conventions are being violated by the Indian government’s failure to prevent a crisis in Assam. These include, article 27 of International Covenant on Civil and Political Rights, ratified by India on 10 April 1979. This establishes that in those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities have the right, in community with the other members of their group, “to enjoy their own culture, to profess and practice their own religion, or to use their own language”. The annexure also refers to article 19 of the ICCPR that guarantees “the right of “everyone” to seek, receive and impart information of all kinds, through any media and regardless of frontiers. In this connection, we highlight that the right to access to information constitutes a fundamental component of the right to freedom of expression.”
It further says, “We would furthermore like to appeal to your Excellency’s Government to take all necessary measures to guarantee their right not to be deprived arbitrarily of liberty and to fair proceedings before an independent and impartial tribunal, in accordance with articles 9 and 10 of the Universal Declaration of Human Rights (UDHR) and articles 9 and 14 of the International Covenant on Civil and Political Rights (ICCPR).”
It also reminds the head of the Indian government of certain obligations due to international conventions ratified by them, saying, “We would like to remind your Excellency’s Government of its obligation under the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), ratified by India on 3 December 1968. Article 1 (1) defines racial discrimination as “any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life”.
The question of nationality and statelessness
And in what could potentially affect not just the NRC, but also the BJP government’s agenda with respect to granting citizenship to Hindus, Buddhists, Jains, Sikhs etc. fleeing persecution from other parts of the world but excluding Muslims, the annexure highlights, “We would also like to draw the attention of your Excellency’s Government to the right to nationality as enshrined in various international legal instruments ratified by India. The right to nationality entails the right of each individual to acquire, change and retain a nationality. Article 5 (d) (iii) of ICERD is particularly relevant as it explicitly obliges States parties to guarantee the right of everyone to equality before the law, including in the enjoyment of the right to nationality, without discrimination on any prohibited grounds. In this connection, the Committee on the Elimination of Racial Discrimination has reiterated that the deprivation of citizenship on the basis of race, colour, descent or national or ethnic origin violates States parties’ obligations to ensure non-discriminatory enjoyment of the right to nationality.”
The annexure ends with a call to the Indian government to “take specific steps to end statelessness, including by putting an end to the practices and policies identified [in the report] that render persons stateless and in doing so, make them vulnerable to extreme human rights violations.”