Reading Kafka and Agamben through the NRC of Assam

Written by Prasenjit Biswas | Published on: August 16, 2018
Can State render its own citizens stateless post facto after they have long lived in a country? Can the state deny the ‘right to have rights’ to those who were born or are descendants of those who were born in its undivided territory? Ought courts of law, by decrees, deny fundamental rights to persons by enacting what is called ‘due process’? How many miles has one to go before one proves oneself again and again to be a citizen even after discharging all constitutional rights and duties, especially after being an elector who elected several governments?

Assam NRC

The categorisation of citizens into “D” voter, suspected foreigner and thereafter being incarcerated in detention camps have been part of the lived experience of several hundreds of thousands of the minority -- both Hindu and Muslim population of Bengali origin people-- in Assam. The vast majority of those left out (number is a staggering 40 Lakh plus), from the final draft of the NRC, are those who are Bengali Hindus and Muslims of Assam. Albeit many members of other smaller minorities like Karbis, Bodos, Mishing, Moran, Motok, Koch Rajbangshis and some members of even the Axomiya community are also excluded.

In The Penal Colony
The situation of this 40 Lakhs left out bring to mind Kafka’s existentially stark, dark and fatalistically charged ironical story entitled “In the Penal Colony” (1941)[1], where the Officer in charge of the machine as the last proponent of what is called justice machine, firmly believes in the form of justice meted out by the machine as ‘infallible’. The Condemned does not know that he has been given death sentence, as the machine inscribes the law that the Condemned has supposedly broken on his body in a quick span of twelve hours to lead him to death. The dignified European visitor called Explorer, who encounters such a ‘justice machine’ for the first time refuses to get persuaded by the Officer to opine to the Commandant that the machine be set free as it is no longer able to give sufficient punishment on the Condemned. In a profound reversal of meting out justice to the Condemned, the Officer believing the inefficacy of the machine sets the Condemned free and in his place sets the machine on himself with the word “be just” to be written on his body. The machine quickly stabs the officer to death denying him the mystical experience that the Condemned used to get from it for twelve hours before they were led to death.

NRC as an objective procedure, as per belief of some hardliners, found out 40 Lakhs ‘ghuspetiyas’ (infiltrators) and/or Bangladeshi foreigners and the only justice to be done to them is to ‘disenfranchise’ them and deprive them of all the governmental facilities except that they will be given only food and shelter. Many such pronouncements by important state functionaries and public leaders bring back to the mind what the ‘Dignitary’ in the Kafka story did: he only privately gave his opinion about the justice machine to the Commandant which cannot be given publicly and then left before he could be called to give an official account. This made the poor Officer believe that the machine will act according to what is just and fair, which also might have been the opinion of the dignitary given in private to the Commandant of the machine.

What Kafka showed is a paradigmatic existential crisis that lies in believing in a justice machine, which does not go by the very commitment and faith to justice and commits the most horrendous act of penalization of any Condemned. Terming the entire 40 Lakhs left out as ‘foreigner’ or ‘infiltrator’, sounds like a mass penalization, which of course, law in vogue does not permit. Home minister Rajnath Singh maintained that no action could be taken on anyone whose name is excluded until everyone is given sufficient time for an imminent ‘claims and objections’ procedure. Indeed the justice machine gets rightly guided and directed as per the extant legal provisions, but the condition of those who are left out remains what Kafka described as the Condemned. In the story, Kafka showed the role of the Soldier as only to guard the Condemned. In an eerie enactment of this, 200 companies of armed paramilitary forces are deployed in Assam and many districts are under prohibitory orders disbanding assembly of five or more than five people. So much for civil and political rights of people, who are now guarded by the paramilitary and no one is allowed to express even a whimper of protest in public. The ‘left outs’ are only supposed to seek justice through ‘claims and objections’ procedures or else, they are to go to appeal to higher courts, as the whole process is supervised under the  two member bench of the Supreme Court of India.

In such a condition, many have felt totally helpless and existentially ‘abandoned’ to a chilling future. In a startling case, a grandfather committed suicide on not finding his grandson and granddaughters names in the final list.[2] Similarly a farmer’s family, whose name did figure in the first draft finds it missing in the second draft as reportedly surname of his grandfather and his own surname do not tally. The report explained it as a practice in Muslim societies of Assam quoting the concerned head of the family, farmer Samsul Hoque from Hathisulapam of Kamrup district of Assam.[3] In yet another widely discussed case, litterateur and veteran journalist Shri Manindra Dutta from Silchar passed away in distress by finding none of his family members’ names in the second draft. He was particularly well known for his role in language movement of 1961 of Barak Valley of Assam. Earlier suicides of Hanif Khan in a place near Silchar on not finding his name in the first draft has already showed the desperation and angst in the individual and collective psyche of large section of people, whose test of nativity is connected to their ‘different’ ethnic origins. Indeed a new syndrome called NRC syndrome has arisen, and its social and political psychological impact can be felt on ordinary individuals who are affected by uncertainty created in procedures of official ‘satisfaction’.[4] A deeper existential symbolism arises in Centre granting crores to set up a brand new detention centre in Goalpara signifying the fate of probable stateless people post NRC.[5] What detention camps do, could be considered as a kind of indefinite detention, which even hard-core criminals do not suffer. Many lodged in the detention camps prove, after a complicated legal battle that they are wrongly suspected as ‘foreigner’ or as ‘doubtful voter’, but by then, a lot is lost in life inside the indefinite detention. In fact simultaneous procedures of NRC verification, issuance of foreigners’ notices and “D” voter multiply the possible victimization of many and it becomes immensely difficult to get any iota of justice for the condemned, as passing one test will be followed by another trial in many cases. From the first draft of NRC in which someone and half million people whose names figured after due verification of their ‘legacy data’ are dropped in the second draft as there are other procedures pending in their names. This shows the excruciating drift of the justice machine that can hold parallel trials.

Before the Law
The spate of shocking news and suicides did not even halt for a moment.[6] Only a few days ago, a man called Nirmal Paul committed suicide in a place near Katigorah in Silchar on not finding names of his family members in the final draft.[7] In another startling incident, little boy Haider Ali Khan who saluted tricolor braving flood water last year in 2017, the image of which went viral, did not find his name in the NRC.[8] 

The NRC syndrome affects much more than mere 40 lakhs. As it is widely known that some members of a family are excluded and families are partly included creating the conditions of the syndrome affecting other included family members. Going by this at least two to three times more individuals than this 40 Lakh are affected in a possible scenario of being decitizenized. What is worse is every such probable decitizenized citizen will have to know formally the reason for non-inclusion and apply for inclusion again through procedures of ‘claim and objections’. Isn’t this an affront on ‘natural rights’[9] of being a citizen of India? In a democratic state like India, such a sordid picture of decitizenization is pushing the citizens beyond limits of human rights and human dignity? Can rule of law operate by creating such a penal colony in a manner of Kafka’s imagination? Can’t there be a more dignified procedure free from suspicion and hassle free method of verification without any harassment with sufficient time at hand? It is stated that NRC exercise is carried out in the supervision of country’s top court, but things are decided on the ground by the executive authorities such as Local Registrar of Citizens’ Registration (LRCR). The supervision is only partial in terms of setting the norm, but the ground level execution and decision are made by local authorites.

This again reminds another much discussed short story of Kafka entitled, “Before the Law” in which the gatekeeper of law does not allow one who waited a lifetime to enter the doors of law.[10] The doorkeeper informed the entry seeker that the entry door is made only for him, but the protagonist dies after a lifetime wait to enter the hallway of law and then the doorkeeper informed the man just before his death that he is going to shut it forever. Anyone seeking an entry in the NRC and whose name does not figure faces the potential “before the law” situation, in which their entry gets circumscribed by procedures on which they have either no say or no control.

State of Exception
One is reminded of Giorgio Agamben’s characterization of ‘state of exception’, where ‘homo sacer’ are reduced to bare bodies, stripped of all their civil, political, economic, social rights and the whole society turns into a camp and the State as the sovereign enjoys an absolute ‘monopoly of violence’ by enforcing law. Law is enforced by making an exception to very law itself and then by performing such an exception by an act of anomie, which also is an ‘originary violence’ involved in the very ‘force of law’. In other words, legalized violence in a state of exception marks everyday production of biopolitical bodies that lack all autonomy and sovereignty.[11]

The biopolitical body of NRC left outs of more than 4 lakhs excluded people is the ground of enactment of law of exception that throws them out of the sphere of legitimacy. The exception is made through the body of laws before it is enacted on the flesh and blood people. In the complicated legal architecture of NRC, there are several such exceptions by way of special provisions inserted specifically for Assam. Section 6A of the citizenship act, 1955 is an Assam specific section that introduces a cut-off date for citizenship for Assam, which is 25th march, 1971. This makes citizenship in Assam very different from rest of India. For example, an Indian citizen who is born after 1971 cannot be included in Assam’s register of citizens unless she has a linkage with her parents who were ordinarily residing in Assam prior to 1971. Isn’t this a recipe for dual citizenship in India? Exception is also made to sub-clause 7 of 6A of citizenship act, 1955 which clearly exempted people who are citizens of India until 1985 from any test of citizenship in the conduct of NRC process as this sub-clause is ignored in NRC procedure. If this sub-clause is taken into account then people who are citizens of India in Assam should find their names automatically included in NRC.

It is widely contended that citizenship for rest of the India has a cut-off date of July 1948, while in case of Assam it is 25Th march, 1971. The Constitution of India does not have any such cut-off date and categorizes people and their chances to be an Indian citizen are based on circumstances described in various clauses of citizenship act, and all these prescriptions define what is called a ‘due process’ to be followed uniformly across the country.[12] The thrust of India’s citizenship has been ‘universal franchise’ and certainly not mass decitizenization and disenfranchisement. If 40 lakhs are found to be not eligible to be there in the NRC, most of whom have elected governments in many elections, isn’t it a case of massive aberration that governments being elected by so called ‘foreigners’ discovered post facto must resign, if they are elected by these noncitizens? This brings into question whether a decitizenized citizen is same as a foreigner or a noncitizen who is suspected or declared to be so post facto. In case of Assam, suspected foreigners are often subjected to a tortuous process of trial combined with emerging psychological, ethnic and political pressures nearly break them unless they have an exceptionally strong socioeconomic background.

There is a shifting of onus to a citizen to prove his or her citizenship, which is a procedure adopted for an identified foreigner to prove her bonafide, but ironically enough an exception is made to this in Assam. The NRC procedure probes into documents of parental linkage and the procedure of verification by sending documents to the issuing authority kept everyone on their toes. In the verification procedure stated in the law verification has to be done comparing with the original has been extended to sending documents issued by other states to those states to verify them. This insistence has resulted into large number of documents issued by central and other state government not verifiable, which are submitted by applicants. This is how onus on an applicant shelved the responsibility of the State and kept the fate of the applicant indeterminate by the very process of verification. On verification, just as many documents were not found to be correct, although these documents are issued by some authority under law, the penalty falls on one who is issued such a document and not on the issuing authority. In yet another stark exception, certain documents were declared as weak documents by NRC authorities midway even after the first draft  was published terming many important documents such as birth certificate, citizenship certificate, refugee certificate etc. as weak documents[13], as a consequence of which, many names might not have been found eligible for inclusion.

One of the major exception within citizenship act is the idea of ‘legacy data’ by which an Indian citizen cannot be eligible to be included in NRC in Assam unless he or she has pre-1971 legacy in Assam. The other exception is turning the enabling provisions of 6A that enables a pre 1971 citizen to establish his bonafide without any testing procedure into a matter of onus placed on every citizen. Again, a undefined category of “original inhabitant” (OI) is introduced in 3(3) of 4A of citizenship rules and thereby creating an implied category of “nonoriginal inhabitant” on the assumption that original inhabitants do not preserve documents and they do not need to submit documents to prove their nativity, while in case of nonoriginal inhabitants, a strict method of probing including a long drawn method of verification is drawn up. This puts into question even government issued documents in case of non-OI people. Going by this, none residing in Barak valley was termed as OI and thereby showing how the process was interfered by implied discrimination between two categories of people. The historical fact remains that certain parts of Assam, such as Barak Valley and Goalpara were attached to Assam by the British in 1844, areas which are assumed to be inhabited by people who are not ‘original inhabitants’ of Assam, while most of people residing in those areas have their origins in undivided British India of Sylhet and Rongpur districts. Post-partition, the Constitution of India accepts the consequential effects of partition on behalf of people who suffered partition, but NRC procedures does not give appropriate consideration for displaced people residing in their own districts that are partitioned in 1947, especially when it created a category like ‘original inhabitant’. It is widely touted in popular discourses that people whose surnames could be found outside Assam, onus of proving nativity lies on them.

What future awaits these 40 lakhs nonincluded people? Many of them are born in India and yet NRC procedure did not find their documentation to be adequate. By creating a set of reasons and procedures that are not deemed in the Constitution, large number of poor, illiterate and linguistic and religious minorities are rendered in a near stateless situation. The procedures proposed in ‘appeal and objection’, as per reports allow an equal place to ‘objections’ that can be raised to any name included in the final draft of NRC. Some vigilante groups expressed their dissatisfaction over dropping only 40 Lakhs, as they believe that number should have been more. Opening up an objection procedure on a matter like citizenship will bring into play all kinds of subjective stereotypes that exist among people in objecting to their inclusion on the basis of religion, language, region and other such divisive social categories, which has the potential of upturning what has been included in the draft by causing huge harassment of again proving one’s citizenship before a juridical authority. This opens up a procedure of restarting a fresh procedures for crores of applicants, which also is a possible nullification of the very sanctity of the NRC process conducted so far. As the process is called ‘at the stage of draft’ creating unwarranted doubts about the validity of the two drafts that have already been published after spending huge public funds, a process of open objection will further emasculate it into an arbitration procedure, something that is never stated in matters of citizenship in the Constitution.

Pronouncements made from various quarters about deporting them to Bangladesh, or denying them fundamental rights is a grave concern from the point of view of human rights. Going by Universal Declaration of Human Rights (UDHR), 1948, every person is entitled to the right to belong to a nationality and no person can be rendered stateless without due process, which has to be mandatorily upheld in any process such as NRC. Due process cannot be made exceptional by placing the entire onus of proving citizenship as nativity on a citizen, as it hardly conforms to basic standards of  justice, going by which someone’s status remain unchanged unless proven otherwise after providing all safeguards of defence to a person.[14]  If a process is judged by its outcome, production of 40 lakhs near stateless people is itself a great exception in contemporary history of modern state system in the world. Further 40 Lakhs get multiplied by at least threefold if we take total number of family members affected by non-inclusion of some or other of their family members. This huge number of people affected creates a condition of statelessness as their citizenship is perpetually suspended by the State to which they belong and are supposed to enjoy inalienable constitutional rights to be its citizens.
(Prasenjit Biswas is an auhtor, human rights activist and an analyst of sociopolitical developments of Northeast India. He is based at Shillong. His last published book is entitled, Between Philosophy and Anthropology: Aporias of Language, Thought and Consciousness, Notionpress, Chennai, 2017)
[1] Frantz Kafka, “In the Penal Colony” can be read from, accessed on 12.8.2018.
[3] Sumir Karmakar, “First-draft names go missing”, The Telegraph, Guwahati edition, Monday, the 13th August, 2018, p.1 continued to p.4.
[4] Subsection 3 of 4A of The Citizenship Rules, 2003 as amended in 2009.
[9] Citizenship Act, 1955 does not prescribe that a citizen has to undergo such ‘testing’ procedures, while rules pertaining to Registration of Citizens and Issue of Identity Card, 2003 framed thereunder by the Executive too do not state such procedures. In such a context the Supreme Court approved certain procedures which are not stated in any text of law and empowered the Executive to implement those procedures. Large part of NRC procedure falls under such domain of Executive action. If anything goes wrong legal remedy is available, but how many poor illiterate people whose names are excluded from final draft can pursue such remedy?
[10] Wikipedia entry on Kafka’s "Before the Law" states,
A man from the country seeks the law and wishes to gain entry to the law through an open doorway, but the doorkeeper tells the man that he cannot go through at the present time. The man asks if he can ever go through, and the doorkeeper says that it is possible "but not now" ("jetzt aber nicht"). The man waits by the door for years, bribing the doorkeeper with everything he has. The doorkeeper accepts the bribes, but tells the man that he accepts them "so that you do not think you have failed to do anything." The man does not attempt to murder or hurt the doorkeeper to gain the law, but waits at the door until he is about to die. Right before his death, he asks the doorkeeper why even though everyone seeks the law, no one else has come in all the years. The doorkeeper answers "No one else could ever be admitted here, since this gate was made only for you. I am now going to shut it."     From accessed on 15.8.2018
[11] Giorgio Agamben, State of Exception, University of Chicago Press, Chicago, 200.
[12] Details of evolution of procedures of grant of citizenship to various categories of people  could be read in Ornit Shani, How India Became Democratic: Citizenship and the Making of the Universal Franchise, Penguin Random House India, Gurgaon, 2018, pp.225-47.
[13] Letter No. SPMU/NRC/DistCoEquip/68/2015/PtIV/177 dated 1st May, 2018 issued by NRC state coordinator.
[14] UDHR article 15 stated, “(1) Everyone has the right to a nationality.(2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.” Article 11 stated, no one could be penalized unless someone committed a penal offence. In case of NRC it is assumed that erstwhile citizens, by placing the entire onus on them of proving that they are not ‘illegal immigrants’, it is deemed to be a ‘penal offence’ if they cannot prove by documents and to the satisfaction of the Executives that they are Indian citizens.