An Introduction to the Vol. 31(2) of the National Law School of India Review

[Ed Note: We’re happy to report the release of Vol. 31(2) of the National Law School of India Review. This has been developed from NLSIR-Samvād: Partners Symposium conducted on December 9, 2018 titled “The Sovereignty-Rights Dichotomy: Exploring Migration, Refuge, and Citizenship.” The Issue consists of the Transcript and 4 substantive pieces which have been introduced in the latter half of this post. We’re grateful to Surbhi Soni for having taken the initiative to reach out to us and to Sharan A. Bhavnani and Nikita Garg for authoring the note below.]

Living through the “century of people on the move”, States grapple with the challenges posed by large-scale movement of persons. India is no exception here. Migrants moving for better opportunities; status of Rohingyas in India who fled violence and persecution in their home country; and most recently, persons being declared non-citizens under the National Register of Citizens (NRC) in Assam, are all events that have gained some traction over the last year. The narrative that has continually allowed the “other-isation” of such persons is often couched in the language of national security to justify acts that almost certainly fall foul of accepted standards of human rights norms. It is this dichotomy between the sovereignty of a State and the rights that it accords to its people who are on the fringes, that forms the heart of this themed issue of the National Law School of India Review titled “Migration, Refuge, and Citizenship in India”.

The first part of this issue is a transcript of the discussions at the NLSIR-Samvād: Partners Symposium conducted on December 9, 2018. Titled “The Sovereignty-Rights Dichotomy: Exploring Migration, Refuge, and Citizenship”, speakers at the XII NLSIR Symposium delved into the challenges and opportunities within the legal framework governing migrants, refugees, and citizenship in India. There were three panels which unpacked the multifaceted framework. The first, with Mr. Gurucharan Gollerki, Ms. Hamsa Vijayaraghavan, Ms. Madhurima Dhanuka, and Ms. Seeta Sharma, assessed India’s migration policy and its consistency with international instruments on migration; the second, with Dr. Ashwani Kumar, Mr. Saurabh Bhattacharjee, Dr. Srinivas Burra, Mr. Prashant Bhushan, Ms. Roshni Shanker, and Ms. Cheryl D’souza, explored the legal and political position of refugees in India, specifically Rohingya refugees; and third, with Mr. Alok Prasanna Kumar, Mr. Arijit Sen, Ms. Lhea Verghese and Dr. Harish Narasappa, analysed the impact of the National Register of Citizens (NRC) and the Citizenship Amendment Bill, 2016 on the constitutional understanding of Indian citizenship.

These experts, with backgrounds in advocacy, activism, and academia, established a strong foundation for taking these debates forward. We hope that students, practitioners, academics, and other readers benefit equally from the transcript as the attendees of the symposium.

The second part of the issue consists of four articles from the panelists, elaborating their ideas, views, and arguments further.

In Broken Path to Freedom: Deciphering Lives of Foreign Nationals in Indian Prisons, Madhurima Dhanuka and Palak Chaudhari document their experience with foreign national prisoners in India. They highlight the difficulties faced by those incarcerated ranging from continuous isolation, language and cultural barriers, to lack of strict nationality verification tools and other severe restrictions on liberty. They carefully detail the current legal framework under which foreign nationals are detained, prosecuted and imprisoned in India and highlight possible solutions that can be considered to ensure the rights of such prisoners are duly protected.

In Hope for the Hopeless: The Case of Rohingyas, Dr. Ashwani Kumar deals with the constitutional validity of the government order treating the 40,000 Rohingya refugees in India as illegal migrants and ordering their expeditious deportation. The order is currently under challenge before the Supreme Court of India.

As regards citizenship, Alok Prasanna Kumar examines the approach adopted by the Supreme Court of India in enforcing the National Register of Citizens (NRC) in Assam. In “More Executive-Minded than the Executive”: The Supreme Court’s Role in the Implementation of the NRC”, he places the Court’s supervision of the exercise as part of a pattern that abandons questions of procedure and propriety in the name of “public interest”. The final list of the NRC, released on August 31, 2019, excludes 1.9 million persons. Given the scale and impact of this exercise, understanding the legitimacy of the Court which supervised it, becomes crucial.

Lastly, in Contestations Over India Citizenship: An Analysis of the Citizenship (Amendment) Bill 2016, Leah Verghese and Dr. Harish Narasappa delve into the contours of, what has become a deeply political issue, the initially tabled Citizenship Amendment Bill, 2016.

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