Amit Shah
BJP National President Amit Shah addressing a press conference in New Delhi | PTI
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Lawyer Sanjay Hedge says those excluded from Assam NRC list had issues with their documents and this does not necessarily make them ‘illegal’.

New Delhi: BJP president Amit Shah, during his speech in Rajya Sabha earlier this week, used the word “ghuspethiye” (infiltrators) in reference to those excluded from the final draft of the National Register of Citizens (NRC) in Assam.

Nearly 40 lakh people in Assam could not find their names in the final draft on the NRC released Monday. The NRC update exercise, aimed at detecting illegal immigrants in the northeastern state, is being carried out under the supervision of the Supreme Court.

However, those excluded are still considered citizens and have been protected from any coercive action under the Supreme Court’s orders.

While the United Nations clearly defines who is a migrant or a refugee, there is no such categorisation as “infiltrators”. According to the Cambridge Dictionary, an infiltrator is “a person who secretly becomes part of a group in order to get information or to influence the way the group thinks or behaves.”

ThePrint takes a look at how such people might be classified, and whether it was appropriate for Shah to use such a word.

Also read: In Assam, NRC is now National Register of Confusion

UN definitions

According to the United Nations High Commissioner for Refugees, a refugee is distinct from a migrant: “Refugees are persons who are outside their country of origin for reasons of feared persecution, conflict, generalised violence, or other circumstances that have seriously disturbed public order and, as a result, require international protection,” the UN says.

A migrant, on the other hand, is defined as “any person who lives temporarily or permanently in a country where he or she was not born, and has acquired some significant social ties to this country”.

The UNHCR does not have a clear definition for “illegal” or undocumented migrants, but UNESCO loosely defines such people as being those who enter a country, usually in search of employment, without the necessary documents and permits.

The term of Amit Shah’s choice fits neither category. According to India’s Citizenship Act, an illegal migrant is a foreigner who has entered into India:

(i) without a valid passport or other travel documents and such other document or authority as may be prescribed by or under any law in that behalf; or

(ii) with a valid passport or other travel documents and such other document or authority as may be prescribed by or under any law in that behalf but remains therein beyond the permitted period of time.

Legal tangles

Senior advocate Sanjay Hedge says those excluded from the NRC list are neither refugees nor illegal migrants, and to call them either is “entirely thoughtless and inappropriate”.

In 2017, Hegde fought for the rights of two suspected foreigners, Kismat and Ashraf Ali, to be restored. Both were migrants from Bihar and Uttar Pradesh to Assam, and were put in detention camps until the Supreme Court recognised them as Indian citizens. They were detained for over two years before being released.

Assam’s relationship with foreigners — or those who cannot prove they migrated to Assam before 25 March 1971 — is bound by the Assam Accord signed in 1984 by the Rajeev Gandhi government. The Accord states that those who are considered “doubtful” voters (or D-voters) by the Election Commission of India are to be tried by the Foreigners Tribunal under the Foreigners Act.

Hegde explained, “The problem with NRC is that if proceedings go against a person and the person cannot prove that he/she arrived before 1971, such a person will be sent to detention camps through the Foreigner’s Act and the Foreigners Tribunals (Orders).”

“Normally, when foreigners are detained we wait for their home countries to claim them. In this case, no one would be willing to take in these people, leading to indefinite detention, making it a human rights issue,” he said.

Also read: Assam has taken the lead, now NRC should be implemented across India, says governor

According to Hegde, people who are excluded from the list are those whose documents have failed to comply with the NRC requirements. “This does not necessitate their illegality,” he said.

“The NRC as it is being carried out would not be as objectionable if it showed these people how to restore their documents,” the legal expert added.

Simply put, those excluded from the list are neither illegal immigrants nor foreigners, but, according to Hedge, they are the “people on whose citizenship question marks will soon be raised”.

As the final list of the NRC is compiled and the rights of those excluded redrawn, Assam lives in anticipation. Those whom Shah called “ghuspethiye” may simply be a people without the right resources to prove their citizenship.


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