Citizenship Stripping Through The NRC and Assam’s Foreigners Tribunals: An Interview with Aashish Yadav

Aashish Yadav is an Assistant Professor at Jindal Global Law School (“JGLS”). In this interview, we discuss his experiences from the Clinic that he offered on ‘Citizenship and Statelessness in India’ with Professor Mohsin Alam Bhat through the Centre for Public Interest Law (“CPIL”) at JGLS. After finalising the Securing Citizenship report, the clinic functioned as the space to build literacies on citizenship and statelessness in India. In the first semester, the students developed encyclopaedic notes on these issues. A series of guest lectures were also organised. The next semester was focused on working towards a report on the international due process obligations on India regarding citizenship determination.   

Professor Yadav reflects on the lived experiences of the stakeholders of these reports, the workings and methodology of the Clinic, and the role of international law vocabularies and academic interventions in contexts such as the NRC and FTs.

Abhijeet Shrivastava (JFIEL): Thank you very much for joining us for this interview. To start off, could you talk to us about your background in areas relating to citizenship and statelessness? What were your past exposures, if any, to lived experiences around these contexts? 

Aashish Yadav (CPIL): Thank you for inviting me for the series. As you know, I teach international law and human rights at JGLS, and I’m involved with the CPIL, where I’ve worked on projects on citizenship and statelessness. All this began for me during my Master’s dissertation which was on the religious aspect of Indian citizenship law, focusing on what then was the Citizenship Amendment Bill, 2019. I looked at how this would impact the otherwise secular Indian citizenship regime, though research has shown that it never was truly secular. 

Before that, I had worked with an Afghan refugee family in New Delhi whom a friend had put me in touch with. They were struggling with the UNHCR asylum application process and I was able to file their documents. They were recognised as refugees. But there was a two-fold focus after that. First, to ensure their basic needs such as their child’s education and social support, for which I fortunately had some friends’ help. These experiences tell us that the legal status of a “refugee”  does not do much by itself. The second focus was their subsequent desire to relocate to Australia because their only family left lived there. I spent the next couple of months trying to make a resettlement application on their behalf, which was rejected twice. It was a textbook case of a poor refugee family and that really spoke to the reality of refugees asking for protection, where one has a near nil chance of resettlement. The Government had executive discretion so the only reason we received was that Australia did not “have the capacity to support refugees”.. So that was my past exposure in trying to find a way out of a labyrinth of legal procedures.

Abhijeet: Could you share with us the scope and aims of the Clinic and the reports on the NRC and FTs? 

Aashish: Let’s begin with the first report, ‘Securing Citizenship’. The project started in February 2020 and it was a collaboration with the University Catholique de Lille, France. I was leading a team of their students and six from JGLS in the research and drafting of the report. My colleague Mohsin provided overarching support and expertise to conduct this study. The report has three chapters, called ‘Status’, ‘Detention’ and ‘Socio-economic rights’. Each chapter examines Indian law, international law and global best practices that India should follow to fulfil its obligations towards precarious persons in Assam and stateless persons in Indian territory. Each of these has recommendations on law and policy. 

It was while working on this report that we received many expressions of interest from students for a course on citizenship and statelessness. We combined our research at CPIL with training students in citizenship and statelessness, leading to the year-long Clinic. The main focus of the Clinic was to train students to research on these themes, such as the arbitrary deprivation of nationality faced by people in Assam, and the rights of stateless persons such as the Rohingya. We wanted them to holistically understand the stakes through exposing them to multiple voices on those issues, while highlighting the international law dimension. In the first semester, the students drafted short encyclopaedic notes on citizenship and statelessness in India. The second semester was focused on the international law component of the report, which is a work in progress, and examines whether the FTs follow due process norms or not. It will also include a national law component, and empirical findings from conversations with lawyers working at the FTs and activists in Assam. 

Abhijeet: In a paper you wrote with Professor Bhat for GlobalCIT, you spoke of the importance of the legal vocabularies with which we describe what’s happening in Assam. You argued that the NRC could entail the ‘deprivation’ of citizenship for existing citizens, rather than a mere determination of whether they are in fact citizens. What is the role of the vocabularies available in international law to that assertion, and relatedly, what was your rationale for the focus on international legal argumentation? 

Aashish: That’s a great question. Legal vocabularies constitute the foundation of any research project. It is equally important to build on them, and to challenge the established and accepted vocabulary. Our responsibility as scholars is to understand how far these terms are appropriate in the context we operate in. That is what led us to writing that piece. Most states which have citizenship contestations going on design the processes for determination of citizenship in an opaque and complicated manner.

In Assam, the Indian state claims that it is not stripping anybody’s citizenship (deprivation), but only examining who is a “true national” (determination). To unravel what is really happening, we need to challenge not just the legality of the framework, but also identify the appropriate framework through legal scrutiny, In my work, I rely on the international human rights law framework. 

My perspective is that international law has not been a major part of this discourse because it is often side-lined in Indian debates. Indian academics don’t really get to participate with the State in any policy-making or deliberation efforts. There’s also the fact that the international legal obligations are not exceptionally clear, because there are reservations to the treaties India has signed, then many other treaties that India hasn’t signed and so on. Our role, i.e., people passionate about international law in these contexts, is to clarify that there are legal obligations on the state through examining treaties, customary international law, general principles, and writings or judicial decisions. That’s what we have tried to do, especially in the upcoming Due Process report, where we see a diversity of State practices and find that executive discretion is often a component of such frameworks. It’s often difficult to decipher the binding international legal norms, and that is what we do. We analyse how these processes happen in each State, do they begin with Courts or tribunals or executive committees, are there appeals, or general procedural safeguards in relation to the FTs in Assam. 

Abhijeet: Speaking of the practices of States, citizenship law in India appears very inclined towards executive discretion. Considering that, do you think in the reasoning of Foreigners Tribunals and Indian courts, the balance is skewered against the acknowledgement of lived experiences? What is the role of academic interventions, such as the Clinics’, in shaping legal and even historical discourse in this regard? 

Aashish: Even generally speaking of how the Indian legal system functions, lived experiences are not taken into account by courts, including for everyday matters. I was speaking to a friend recently about how in nearly all court proceedings in India, there are no “independent facts” or arguments, and everything articulated in the judgement reflects what the judge understands or interprets. Everything else is lost. The citizenship proceedings at the FTs are even more opaque. 

What becomes uniquely problematic is the State’s interest in keeping that process opaque to create exceptions for people whenever it wants. There’s been attention to this aspect in Europe’s citizenship revocations recently, especially the UK Supreme Court decision in the Shamima Begum case. Why would they not let in a citizen of their own country who can be put on trial even for crimes committed outside the nation? In Assam, the worst reality is that the FTs are not open to the public and it is difficult to access the orders. Even good developments taking place, such as the Guwahati High Court holding that the FTs must give reasoned orders.

There are a number of concerns regarding executive discretion. First, that these tribunals are not bound by the rules of procedures laid down in the Indian Evidence Act – they can make their own procedures. Each tribunal member can decide how they wish to deal with evidence. This creates variance in which kind of evidence is admissible and when. Those are themes we will deal with in the Due Process report. The second question is whether these tribunals are ‘independent’ institutions. There is a nexus between the tribunals and the executive with many signs of external influence. Talha Abdul Rahman has argued this quite clearly, which we expand in the report by examining the FT proceedings against state practice. 

Abhijeet: You spoke of how all that is articulated in judgments is the Judge’s own narrative, with much being lost. How did that dilemma shape the methodology adopted by the Clinic in formulating the reports? Were the reports centred around the lived experiences of their stakeholders? If not central as such, how did lived experiences shape the clinics’ approach toward writing the reports? 

Aashish:  Brilliant question. It is quite crucial to have these conversations because the “individual” for many years of international law has not received due attention. Even now, when we get to teaching the module on ‘subjects’ of international law, most texts say States, and the focus almost ends there. 

For ‘Securing Citizenship’, lived experience of precarious citizens in Assam did not directly feature in the report. At that point, a normative analysis of India’s obligations was much needed.  Since we weren’t directly living the reality of its contexts, we collaborated with people working on the ground in Assam, who kindly agreed to be commentators and reviewers for our drafts. We also tried to involve people from Assam in the report launch. Their feedback helped us frame effective recommendations. For the Due Process report, the idea since the beginning has been to have a strong empirical component, speaking to people on the ground, and building on the scholarship. My colleague Mohsin has been speaking to lawyers arguing cases at the FTs, community organisers, and other stakeholders in Assam. We also plan to have a few empirical accounts directly from precarious citizens themselves. Lived experiences at the FTs, the origins of the process in individual cases, issue of notice, how the arguments on evidence are treated, and so on are a central part of the Due Process report. 

Abhijeet: Methodology also brings us to another important question. The students of the Clinic presumably had a comfortable distance from the disenfranchisement processes which formed the Clinic’s focus. As faculty supervising the clinics, did you actively endeavour for the involved students to be attentive to lived experiences? Do you think the work enabled students to have the sensibilities to meaningfully engage with lived experiences in the future? 

Aashish: I would answer that in two parts. This brings me to one of the limitations of the Clinic itself – the majority of it had to be administered online because of pandemic restrictions, which didn’t allow us to have students travel to Assam and directly meet the lawyers and activists on ground. Perhaps it wasn’t a clinic in its true form and a workshop instead. Folks have all sorts of nomenclatures. Our mitigation strategy to highlight lived experiences through guest lectures and sessions with individuals working on the ground (Editor’s note: recordings of these sessions are available here). We also had internal consultation processes with students to share our positions and to study and collectively analyse relevant literature. 

We benefited from having students who were very diligent in remaining conversant with what was happening in Assam – legally, politically, and socially. About whether they’d be attentive to lived experiences – well, I really hope so! I would say this is a question of personal politics as well as scholarly training. I’m confident most of them would be conscious of it in their future work, and that’s one of the good things about the workshop-format that we followed, where it was a clear two-way interaction rather than a monologue from instructors. In fact, we also learnt a lot from them in the process.

Abhijeet: Would you be comfortable opening up about how the work of the Clinic may have affected your mental health, given the enormity of the context at hand? 

Aashish:  A lot of scholarship on human rights law now investigates how activists on ground and other people engaged in such work get affected in the short and long run.  I fortunately coped well for the most part. But there are things that shake someone up, and for me, one of those moments was in Abdul Kalam Azad’s guest lecture where he told us about the suicide tracker that he maintains for people who have taken their lives following their exclusion from the NRC or the tensions after an FT decision. It was deeply unsettling to know about the tragic human impact and left me feeling helpless.

The mental health conversation also needs to take into account a discussion about responsibility. When performing any work of this nature, people have to be really responsible about the context about which they are speaking. That’s where collaborations are really important, because unlike a  traditional view of what legal analysis looks like – i.e., something done at a desk stacked with books and under the singular light from a lamp – meaningful analysis can happen through conversation. Lived experiences, even if distressing, must be a part of the analysis and one should consider how lived realities could be affected if the stakeholders follow up on their scholarly work.

Abhijeet: As the final note to this interview, would you have any reflections or cautions on how Clinics should be designed and operationalized? Especially in the Global South, and to be inclusive to lived experiences. 

Aashish: This question reminds me of some consultations amongst our faculty colleagues who have offered clinical courses recently. We are coming to realise that sometimes clinics, particularly in developing countries, do not work because they have an unfortunate top-down approach. They are trying to offer a kind of assistance that hasn’t been asked for. Before engaging in any such project addressing the situations of vulnerable communities, it is indispensable to consult the community throughout the design and execution of the project. Ask them about their concerns, struggles, any strategies they have adopted against these issues, whether they have worked, and if not, we can examine why so and ensure that the project is actually helpful and useful for them. 

This brings me back to what I said about vocabularies – I feel that in any report of this nature, one must, if possible, locate the argument in existing legal frameworks. There are also other such talks happening – for example, whether only academics should be running a clinic, or if there should be active involvement of practising lawyers who regularly assess the students. So there is much to contemplate.

Abhijeet: Those are important questions. Thank you once again for taking the time out for this very insightful conversation. We are certain this contribution would be beneficial to any reader engaging in contexts of citizenship, statelessness, or clinical work broadly.

Interviewed by Abhijeet Shrivastava, Editor-in-Chief, JFIEL (2022-23).

Image: The migration gained in momentum (Jacob Lawrence, MoMA Series).

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