Abstract
By engaging with the National Register of Citizenship (NRC), it is possible to write about the new forms of affinity between citizenship and the criminal law in India, often compartmentalized in both kinds of literature of citizenship and criminal law. In the case of preventive detention/administrative detention in India, there are no set procedures for keeping people under detention. There are no laws and no specific guidelines to detention under the NRC, making it a formless punishment. People were detained for the reason that they “vanished” and mingled with the general public. Moreover, the purpose of deportation is not present in the NRC process as it is claimed to be an “internal affair”, but deportation as a purpose is used in the case of detention of NRC victims to legitimize that detention. In the absence of that purpose, the detention is a legal punishment. This paper will show how the NRC process, with its roots in Assamese Nationalism, allows us to show not only the affinity between citizenship process, nationalism, and criminal law but also how criminal law and administrative grounds of detention are often crisscrossed and misused in the NRC process.
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Notes
- 1.
Legacy data is a patrilineal family tree showing ones relative to be residing in Assam before the cut-off date of 24th March 1971. It comprised two lists of documents—List A and List B. List A included 1951 NRC, electoral roll(s) up to 24 March (midnight) 1971, land and tenancy records, citizenship certificate, permanent residential certificate, refugee registration certificate, any government issued license/certificate, government service/ employment certificate, bank or post office accounts, birth certificate, state educational board or university educational certificate, Court records/processes, passport and any LIC policy. List B was meant for those candidates who could not or did not have any document that was on before 1971. This list contained 8 other documents: birth certificate, land document, board/university certificate, bank/LIC/post office records, circle officer/gaon panchayat secretary certificate in case of married women, electoral roll, ration card, any other legally acceptable document.
- 2.
NRC is the result of a history of the anti-Bengali sensibilities. It began in the early nineteenth century and climaxed during the Assam Movement (1979–1985) that concretized hate for the so-called outsider forever in the domain of public life.
- 3.
1951 NRC was carried out in Assam alongside the 1951 census. It borrowed 11 of the 14 questions that was part of the decadal census on India. The excluded questions were: if the respondent was a displaced person, bilingual, and ‘indigenous person on Assam’. It was a rough notebook of names and was by no means a rigorous practice. Enumerators also were known to leave out names of people living in hostile areas.
- 4.
I borrow the concept of formless from Michel Foucault “docile body” in his work Discipline and Punish where the body undergoing punishment is seen as a text. The punished body can be used as a text to study both NRC and Assamese nationalism.
- 5.
See The Foreigners Act, 1946 2(1)a. This particular definition of the foreigner was included through an amendment in 1957 which came into effect on 19 January 1957. It brought Pakistani (primarily that of East Pakistan and present-day Bangladesh) nationals under the purview of the foreigner. Prior to this amendment, Pakistani nationals were not subjected to the provisions and rules of the Foreigners Act of 1946 (cf. White Paper on Foreigners’ Issue, White Paper hereof).
- 6.
See The Citizenship Act, 1955 2(1)b.
- 7.
Foreigners (Tribunals) Order, 1964 Gen. S. R. & O. 1401 (India). FTs are created as per Clause 2 of the Order.
- 8.
It is noted in the White Paper that 35,080 cases were referred to those 4 tribunals till the end of August 1965.
- 9.
See Foreigners (Tribunals) Order, 1964, 2 (1).
- 10.
This period of 10 years is also a part of the Assam Accord (point 5.6) signed between the Government of India, the Government of Assam, and the All-Assam Students’ Union (AASU) signed the Assam Accord on 15 August 1985 to end the six years of Assam Movement.
- 11.
Foreigners (Tribunals) Amendment Order, 2019 § 3(A)(16). Also, see Angshuman Choudhury (14 June 2019) Home Minister Amit Shah Expands Foreigner Tribunals across India, Asia Times.
- 12.
D-Voters refers to those persons whose citizenship is disputed by the Election Commission (EC) of India. The EC carried out a massive revision of its electoral rolls in 1997 and found 231,657 such cases which the SC referred to the FTs.
- 13.
It will be pertinent to note here that Bengali replaces Persian as a court language by the British as it was getting difficult and expensive to get Persian scribes.
- 14.
I grew up in Assam being told to be cautious and hate the “Bangladeshi”. “Bangladeshi” was always seen as unwanted, immoral, polluting beings, and is treated with disgust in everyday life. Such relations and sentiments form the moral and psychological background on which NRC must be read. Also, see Suraj Gogoi (20 October 2019) Psychology behind NRC mirrors narrow, dominating side of Assamese language, and its fragile nationalism, cultural identity, Firstpost.
- 15.
See Samyak Ghosh and Suraj Gogoi (14 April 2019) What do walls in Guwahati tell us about its people and their history, The Wire.
- 16.
The Seva Kendras are an essential window of the NRC operation through which people connect.
- 17.
In 2005 in S. Sonowal vs Union of India IMDT Act was repealed, thereby placing the burden of proof back to the applicant or the alleged foreigner and reverting to the terms stated in The Foreigners’ Act, 1946.
- 18.
Even if the document is from say 1971, it is still many decades old, and no one could have ever thought that such documents in that form would become fundamental to one’s citizenship. Moreover, the standards of record-keeping even in government institutions is very poor, but to demand it from people is an unfair ask itself. To add to that, people live precarious lives in precarious times (Indian Partition, Bangladesh Liberation War, Assam Movement, communal violence) and geographies (major earthquakes have taken place in Assam, two measuring over 8 in Richter Scale, it is also a state prone to multiple floods every year). All the above are general facts, the personal events are not even considered, making the nature of admissible documents an impossible, harsh, and unreal ask for a majority of people.
- 19.
Rahul Karmakar (July 20, 2021), 22 children in detention camps for foreigners, The Hindu.
- 20.
Res judicata is a doctrine that simply states that if a competent court has taken a decision on a matter, or has already passed judgement on it, there is no need for a fresh suit.
- 21.
Although, the real reason for his detention was for he highlighted the lack of oxygen that killed 100 children in 2017 in the city of Gorakhpur in Uttar Pradesh, India. He was booked under NSA for entirely different and non-existent reasons. He spent a total of nine months in jail.
- 22.
See Entry 9, List I, Union List. It is part of the 7th Schedule, Article 246 of the Indian Constitution.
- 23.
See Entry 3, List III, Concurrent List.
- 24.
See Article 22, Constitution of India, 1949.
- 25.
The Amnesty Report humanizes the “illegal” and uses the term “irregular foreigner”.
- 26.
See Staff Report (05 October 2019) NRC is an internal, legal process, The Hindu.
- 27.
Scroll Staff Report (02 March 2020) NRC will not affect Bangladesh, entirely internal process, India’s foreign secretary tells Dhaka, Scroll.in.
- 28.
About mourning and punishment see Laruelle’s General Theory of Victims.
- 29.
See Laurelle (2015). General Theory of Victims.
- 30.
Surveillance is indispensable to the authoritarian state (‘focusing on surveillance’ is an element of totalitarian tule) as Anthony Giddens (1985) had argued.
References
Aftab, Jasir. 2021. Preventive Detention Laws in India: A Tool for Executive Tyranny? The Leaflet. https://www.theleaflet.in/preventive-detention-laws-in-india-a-tool-for-executive-tyranny/. Accessed 2 Apr 2021.
Amnesty International India Report. 2018. Between Fear and Hatred: Surviving Immigration Detention in Assam. New York, Amnesty International USA.
Barpujari, H.K., Barpujari, S.K., and Bhuyan, A.C. 1980. Political History of Assam (1826–1919). Govt. of Assam, Dispur.
Bauman, Zygmunt. 2003. Wasted Lives: Modernity and Its Outcasts. Polity Press.
Das, Bhargabi. 2020. How Profit-Making Technologies is Shaping the Terms of Citizenship in Assam. Eleventh Column, April 5, 2020.
Giddens, Anthony. 1985. The Nation-State and Violence. University of California Press.
Gogoi, Suraj, and Arijit Sen. 2022. The Gauhati HC Ruling Offers a Glimmer of Hope for Those Tangled Up in Assam’s Citizenship Nightmare. Scroll.in. https://scroll.in/article/1024698/the-gauhati-hc-ruling-offers-a-glimmer-of-hope-for-those-tangled-up-in-assams-citizenship-nightmare. Accessed 3 Jun 20202.
Guha, Amalendu. 1979. Great Nationalism, Little Nationalism and Problem of Integration: A Tentative View. Economic and Political Weekly 14 (7/8): 455–458.
Guha, Amalendu. 1980. Little Nationalism Turned Chauvinist: Assam’s Anti-foreigner. Upsurge. 1979–80. Economic and Political Weekly 15(41/43): 1699–1720.
Home & Political Department. 2012. White Paper on Foreigners Issue. Govt. of Assam. Last modified 20 Oct 2012.
Laruelle, Francois. 2015. General Theory of Victims. Polity Press.
Mitra, Darshana. 2021. From Citizen to Criminal: Citizenship Determination Process in India and the Limits of Due Process. The Leaflet. https://www.theleaflet.in/from-citizen-to-criminal-citizenship-determination-in-india-and-the-limits-of-due-process/. Accessed 27 Jan 2021.
Mustafa, Faizan. 2019. Kangaroo Tribunals: Foreigners’ Tribunals Almost Another Arm of BJP Government in Assam. Indian Express. https://indianexpress.com/article/opinion/column/supreme-court-foreigners-tribunals-assam-nrc-6058158/. Accessed 8 Oct 2019.
Rizzi, Bruno. 1985. The Bureaucratization of the World. Free Press.
Sagar. 2019. Case Closed. The Caravan. https://caravanmagazine.in/law/assam-foreigners-tribunals-function-like-kangaroo-courts-persecute-minorities. Accessed 6 Nov 2019.
Saha, Abhishek. 2021. No Land’s People: The Untold Story of Assam’s NRC Crisis. India: Harper Collins.
Saikia, Parag Jyoti, and Suraj Gogoi. 2018. How NRC Legitimised Xenophobia in Assam. Newslaundry. https://www.newslaundry.com/2018/08/02/how-nrc-legitimised-xenophobia-and-chauvinism-in-assam. Accessed 2 Aug 2018.
Sen, Arijit. 2020. Covid-19 Pandemic is an Opportunity for Assam to Correct a Historic Wrong. Polis Project. https://thepolisproject.com/covid-19-pandemic-an-opportunity-for-assam-to-correct-a-historical-wrong/#.YTSuTNMzb0s. Accessed 9 Apr 2020.
Sharma, Jayeeta. 2011. Empire’s Garden: Assam and the Making of India. Duke University Press.
Acknowledgements
I would like to thank Oliullah Laskar, Arijit Sen, Rohini Sen, Leah Verghese, Angshuman Choudhury, Andrew Lee, and Darshana Mitra for reading, discussing, and commenting on the chapter. They have aided, inspired, and multiplied my concerns and commitments I share in this paper. To Parag, Bhargabi, Abhinav, Angshuman, Shantanu, and Arijit, your presence and friendship have made me supple and kept me motivated to write, including this. I am also very grateful to George Radics and Pablo Ciocchini for their valuable comments on my chapter and for giving me the space to share my work. Part of this chapter was also presented in the Stigmatization, Identities and the Law Conference at NUS Law in 2020 and I thank everyone who commented on that presentation and the draft.
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Gogoi, S. (2023). Formless Punishment and Exclusion: Criminalizing the Migrant Through the Indian National Register of Citizens. In: Radics, G.B., Ciocchini, P. (eds) Criminal Legalities and Minorities in the Global South. Palgrave Socio-Legal Studies. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-031-17918-1_5
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