HM Journal

CAA, NRC AND THEIR HUMAN RIGHTS IMPLICATIONS

EXECUTIVE SUMMARY

With the adoption and passing of the Citizenship Amendment Act (CAA) and the National Register of Citizens (NRC) at the centre, widespread protests and outburst took place, especially in the state of Assam. Assam, owing to its geographical location will see the greatest influx of refugees among other states. This particular reason has been the cause of serious concern among Assam’s ethnic minorities, who fear for their culture being adulterated and outcasted. Another reason for the bill facing such criticism is the fact that it directly violates provisions laid down in the Assam Accords, 1985. While these issues have been covered extensively, it is also important to note that the human rights of refugees also need protection. It is the duty of a nation to protect the rights of refugees, clearly stated in the principle of non-refoulement, which have been part of customary international law, and which cannot be bent. Furthermore, a state also cannot turn a blind eye towards national security and the rights of its ethnic communities, which also form a part of international law. Hence, both the bills have been issues of controversy, which has led to two different perspectives. One that supports the protection of the rights of refugees while the other preaches the protection of the rights of ethnic communities and national security.

Methodology:

This report uses “Comparative Analysis” as the primary methodology in explaining two different schools of thought, providing for the reader to decide on a side.

INTRODUCTION

The NRC provides a list of Indian citizens in Assam. First compiled in the year 1951, the register was created to suppress the continuous flow of migrants, also called as “bahiragats” in the state. The Assam government has been trying to update this 1951 register from 2015, with its primary objective being the identification of “illegal immigrants” who came into the state after the 1971 Bangladesh War. The All-Assam Students’ Union organised a state wide anti-foreigner agitation against these immigrants. The Assam Accord of 1985 ended this agitation, which stated that any person who entered the state on or after March 25th 1971 is a foreigner and shall be deported.

The CAA was first brought up in 2016, which sought to provide protection to non-muslim refugees from countries like Bangladesh and Pakistan in India. The ethnic communities of Assam opposed this act fearing that the refugees will adulterate the very thing they fought to protect in 1985, their identities.

SCOPE OF THE REPORT

The report tries to examine the two perspective that have taken birth in the controversy related to the CAA and the NRC.

For the argument that supports the protection of refugee rights, the report examines the obligation of India as part of the UNHCR, the UDHR, its adoption of Core Refugee Treaties, the Constitutional Protection it provides to refugees, International Law implications, and its upholding of the Principle of Non-Refoulement.

For the argument supporting national security and the rights of indigenous communities, the report primarily examines the violation of the Assam Accord by the bills.

STATEMENT OF PROBLEM

The report primarily tries to address the problem of the human rights implications that the CAA and the NRC create. It tries to analyse both the arguments, for and against the bills. It tries to provide information on both the state’s duty to protect refugees and its duty to protect the rights of the indigenous communities. The report examines the aforementioned in accordance to Human Rights and the Universal Declaration of Human Rights.

HUMAN RIGHTS ISSUES

The controversy related to the CAA and the NRC has created two different schools of thought which address a variety of human rights issues.

ARGUMENT THAT SUPPORTS THE BILLS:

This argument is in favour of the CAA and the NRC. It supports the bills in their duty to protect the rights of refugees. When analysed from the human rights perspective, this argument can be divided into the following:

Obligation under UNHCR:

India, being a member of the Executive Committee of the office of the United Nations High Commission for Refugees, is obligated both legally and morally to protect the rights of the refugees. The country needs to do so as it shall ensure a healthy relationship with the UNHCR, while also upholding the provisions of the Refugee Convention of 1951.

Obligation under UDHR:

India, being a signatory of the United Nations Human Rights Declaration is obligated to protect the rights of the refugees as

  1. Article 14 of UDHR states that everyone has the right to seek and to enjoy, in other countries, an asylum from persecution.
  2. Article 15 of UDHR prescribes that “No one shall be subject to arbitrary arrest, detention or exile” and that “Everyone has the right to a nationality”.
  3. Article 13 of UDHR states that “Everyone has the right to freedom of movement and residence within the borders of each State”.

Core Refugee Treaties:

In a case when there is no clear status of refugees under the constitution or no obligation under the UDHR, India can still provide for the protection of refugees by referring to other Core Refugee Treaties or the 1951 Refugee Convention.

International Law:

India also needs to observe the duty of upholding international law. Article 51 (c) vehemently propagates “Pacta Sunt Servanda” principle. While Article 51 (b) and (d) explain the need to maintain bilateral relations with other countries. Article 51 (a) also clearly states that India is a peace-loving country, and it should promote International Peace and Security.

Constitutional Protection:

The Indian Constitution provides Fundamental Rights to refugees as well. Right to equality (Article 14), right to life and personal liberty (Article 21), right to protection under arbitrary arrest (Article 22), right to protection in respect of conviction of offences (Article 20), freedom of religion (Article 25), right to approach Supreme Court for enforcement of Fundamental Rights (Article 32) are all applicable to both Indian citizens and outsiders, including refugees.

Principle of Non-Refoulement:

India also needs to uphold the Principle of Non-Refoulement which is one of the characteristics in protecting the human rights of refugees. The principle clearly states that a person cannot be returned to a country where he or she may be persecuted. In recent years this principle has also become a part of international law, further increasing India’s duty to uphold it.

ARGUMENT AGAINST THE BILLS:

The argument against the bills calls for the protection of national security and rights of indigenous minorities by the state.

UN Declaration of Minority Rights:

India is also obligated by the UNDMR to protect the rights of ethnic minorities in India, as it prescribes them as an “integral part of society” as a whole

UDHR:

The passing of the CAA means that Articles 1, 2, 3, 8, 12, 15, 19, 22 among others that provide for the protection of the rights of indigenous communities will be violated.

Assam Accord:

The passing of the CAA and the NRC mainly deprives the people of Assam of the provisions prescribed in the Assam Accord. While this is not a human rights issue, it is indirectly related to human rights.

INDIAN LEGAL FRAMEWORK

The Indian Legal Framework is arguably in favour of both the arguments, as by virtue of Article 14 and Article 21 of the Constitution of India, 1952, which applies to citizens and non-citizens, courts have tried to liberalise the rights of equality and right to life and personal liberty, respectively.

The government and the judiciary have mainly been in support of the CAA and the NRC, stating the aforementioned arguments of UNHCR, UDHR, Constitutional Protection, Principle of Non Refoulement, International Law etc in their favour. This has led to the indigenous communities losing faith in the Indian legal framework as it is silent when their rights are in question.

FINDINGS AND CONCLUSION

The information gathered in compiling this report all point to the following findings:

  1. The state, while promoting the CAA and the NRC still face a dilemma, that of protecting the human rights of the refugees while also protecting the human rights of indigenous communities, both prescribed by the UDHR.
  2. The state has failed to provide, until now, an amicable solution which looks after both the rights of the refugees and the ethnic communities.

In conclusion, this report suggests to the fact that both the rights of indigenous communities and the refugees are equally important human rights issues and need to be discussed properly under the UDHR provisions.

RECOMMENDATIONS

With the information gathered in the making of this report, the following points can be recommended:

  1. Primarily, the state needs to find a way to an amicable solution in which both the rights of refugees and the rights of the indigenous communities are protected.
  2. The judiciary should play a major role in seeing that while the government implements the CAA, it does not deprive the indigenous communities of Assam of any of their rights.
  3. The Government needs to understand that while the UDHR and UNHCR call for the protection of refugee rights, the UDHR does so non-specifically, and also applies to the citizens and minorities of a country as well.

BIBLIOGRAPHY

The information in this report has both been direct, as I am a resident of Assam itself, and also have been taken from the following secondary sources.

  1. Official United Nations Website
  2. Official NRC Website
  3. Official Government of India Website
  4. State office of All Assam Students’ Union (AASU), Guwahati.

Written by: Pervez Rahman Sadiq

College: Christ University, Bangalore.

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