‘In the Context of Assam, Court Took Away Rights’: Justice AP Shah

Video Editor: Sandeep Suman, Ashutosh Bhardwaj

Speaking at the People’s Tribunal, organised in Delhi, former law commission chairman, Justice (retd) AP Shah said, ‘The ultimate result of the court’s involvement was taking away the rights’.

Recalling the judiciary’s role since the 70s when the legal institution had emerged as an ‘activist court’, Justice Shah said:

“The Supreme Court, post 70s, was regarded as the activist court. It was all about protection of fundamental rights and human rights. It was all about making access to the judiciary more efficient if you see the early judgments.”

Justice AP Shah, Former Law Commission Chairman

However, in the context of NRC in Assam that has identified 19 lakh as ‘illegal migrants’, Justice Shah was of the opinion that the ‘court has taken away the rights’:

“In this particular citizenship issue, particularly in the context of Assam, the court was driven or the ultimate result of the court’s involvement was taking away the rights.”

Justice AP Shah, Former Law Commission Chairman

On 7 September, eminent activists and human rights organisations joined hands to participate in the People’s Tribunal, a forum in Delhi, where citizens expressed their views about the final list of NRC (National Register of Citizens) published in Assam.

Around 19 lakh people have failed to make it to the final list, which was put out on 31 August.

Is NRC an error-free document? What lies ahead for the people whose names are missing from the NRC?

These were some of the questions which were raised in front of a jury comprising Justice (Retd) AP Shah, Justice (Retd) Madan P Lokur, Syeda Hameed (former member of the Planning Commission), Deb Mukherji (former Indian High Commissioner to Bangladesh), Githa Hariharan (writer) and Prof Faizan Mustafa (Vice Chancellor, NALSAR, University of Law, Hyderabad).

‘NRC Led to Humanitarian Crisis’

In his opening remarks, writer and activist, Harsh Mander said,

“Whatever may be one’s views on the merits of the NRC and its implementation, we must never cease to remember and be mindful of the fact that it has led to an enormous humanitarian crisis and this intense human suffering was entirely created by the State and by the highest courts of this land.”

Sanjoy Hazarika, International Director of Commonwealth Human Rights Initiative, and an expert on Assam, emphasised the need to understand the background which necessitated the creation of NRC.

“We cannot see it as a land of binaries. It’s not ‘Us versus Them’. There have been concerns that the Assamese may become a minority in their own state. That’s the context of NRC. I’m not justifying NRC.”

Sanjoy Hazarika, Writer and Assam Expert

What’s the Future Action, Asks Justice AP Shah

Posing a question to Sanjoy Hazarika, a member of the jury, Justice AP Shah asked what will be the future action for two million people with respect to Article 21 of the Indian Constitution, that guarantees the fundamental right to life and liberty.

Recalling a system of work permits that he had suggested but was not accepted by the government, Hazarika told the jury:

“Those who will finally exhaust the judicial process, however long it takes, it will be impossible to deport them because Bangladesh has never accepted that there is out-migration. The only other thing that could happen is disenfranchisement.”

Sanjoy Hazarika

Can the Foreign Tribunals Manage Lakhs of Cases?

Appearing before the jury next was Mustafa Khaddam Hussain, an advocate at the Guwahati High Court and a legal advisor of the All Assam Minority Student Union (AAMSU).

But even those whose names have been included in the NRC will live in a state of perpetual fear as anyone can still file ‘objection’ to their claim of citizenship.

“After the publication of the final NRC, those who have been excluded, can file a claim before the Foreign Tribunal. For those who have been included, ‘objections’ can be filed against them. After expiry of the 120 days, if the objector does not come forward, cases can be decided ex parte (sic).”

Mustafa Khaddam Hussain

Another lawyer, Aman Wadud, has been fighting the case on behalf of the Kargil veteran, Mohammed Sanaullah.

Sanaullah had made it to the headlines after it came to light that despite dedicating 30 years of his life to the Indian Army, his name was not included in the NRC.

“221 members have been selected (for foreign tribunal), most of them advocates with seven years of experience, so I think the process of natural justice might be compromised if it works the way it has always worked.”

Aman Wadud, Lawyer

Inexperience of those at the helm of foreign tribunals may come in the way of deciding appeals, which is likely to go in lakhs.