‘No one should go unrepresented’: legal aid clinic will assist those excluded from NRC

Earlier this month, a collective of law schools banded together with one objective: to form a collaborative legal aid clinic to assist people excluded from the National Register of Citizens in Assam. It aims to function as a clearinghouse of litigation and research assistance for lawyers filing appeals against exclusion from the NRC.

Titled Parichay, the collective includes National Law University and Judicial Academy in  Assam, West Bengal National University of Juridical Science in Kolkata, NALSAR in Hyderabad, National Law University in Delhi, and National Law University in Odisha. 

So, how did Parichay come about?

On August 31, 2019, the final list of the National Register of Citizens was released, excluding 19,06,657 people. Persons excluded from the NRC may file an appeal against their exclusion within a period of 120 days from the date of receipt of their order of rejection. However, the grounds of appeal for each individual are different, and failure to file an appeal before the Foreigners’ Tribunal may result in prosecution under Section 3 of the Foreigner’s Act, 1946. The ultimate consequence of being declared a foreigner is either deportation, or detention, and possibly disenfranchisement. In any case, persons excluded remain at risk of being rendered stateless. 

A draft list of the NRC released in July 2018 excluded nearly 40 lakh people. Those of us who were closely following the developments anticipated that while the final list would include many of these 40 lakh people, it would still exclude a sizeable population, all of whom would need to file appeals before the Foreigners’ Tribunals. How does a legal system accommodate the filing of 19 lakh appeals in a period of 120 days? 

This question is what led Anup Surendranath, Mohsin Alam Bhat and I to get on a call in August 2019 for the first time, to discuss what needed to be done. I had just returned from my masters at Columbia Law School in New York, Mohsin was teaching at Jindal Global Law University, and Anup was continuing as the Executive Director at Project 39A at National Law University, Delhi. 

Our first concern was to understand how the appeals process would work. For this, we spoke to multiple lawyers in Assam and in Delhi, who had been involved in litigation before the Foreigners’ Tribunals. We learnt that there was little clarity on how these appeals could be filed, as there was no prescribed format or procedure available. Moreover, the numbers are overwhelming, as it was impossibly difficult to file 19 lakh appeals within a period of 120 days, before 300 Foreigners’ Tribunals. Appeals could only be filed once people starting their orders of rejection, and each appeal would be based on specific grounds and a unique factual matrix. The absence of trained lawyers and the geographical inaccessibility of the tribunals to many affected communities meant that the appeals process was going to require the mobilisation of legal aid on a hitherto unprecedented scale.

Moreover, while the government has assured that exclusion from the NRC does not automatically mean that one is deprived of citizenship, statelessness is inevitable if one fails on appeal. Statelessness reduces an individual from a citizen with all its attendant rights and privileges to bare human existence. Hannah Arendt described the right to citizenship as the “right to have rights”. Citizenship provides an individual with an identity in the eyes of the state — a mask through which they are perceived as political actors and as individuals bearing rights. To strip someone of their citizenship is to also deprive them of their community and social spheres. Today, lawyers and paralegals working in Assam are the last line of defense against this, and our aim was to ensure that they receive all the assistance necessary in helping their clients.

We also realised there is very little pedagogy on citizenship and nationality law in law schools in India, despite the rapid developments in these areas of law. Lawyers litigating before the Foreigners’ Tribunals are contributing to the building blocks of jurisprudence on citizenship and nationality law today. Law schools, with their resources, have a duty to respond to some of the most pressing questions of constitutional and public law facing our country today, namely, who is an Indian citizen?

Therefore, the model we came up with is a legal aid clinic set up in collaboration among law schools across the country, to provide assistance to lawyers and paralegals filing appeals before the Foreigners’ Tribunals. Students will work with lawyers and assist them in drafting appeals, while also conducting research on questions of law, and documenting the entire process. 

Legal aid clinics are usually centred in and administered by a single law school, and a collaborative effort of this kind is unprecedented in India. It requires co-operation and resource sharing between universities, and co-ordination between law students to maximise the number of excluded persons we are able to assist. Most importantly, we are focused on working with lawyers and paralegals, as ultimately they are the ones litigating before the Foreigner’s Tribunals. 

Our job is to primarily assist them in representing as many clients as effectively as possible, and ensuring that the research expertise of National Law Universities is made available to lawyers for filing and litigating appeals. 

Mohsin, Anup and I were afraid that there may be little enthusiasm for this model from law schools and lawyers, as it might seem too ambitious and unwieldy. However, the enthusiasm with which law schools have come on board, and the overwhelming number of applications that we have received from students, has been heartening. Lawyers, comic artists, designers and filmmakers have reached out to us offering their support, and more law schools are now agreeing to collaborate on this clinic. While the actual filing of appeals is yet to start, we are going to ensure that by the end of November, there is a team of students in most law schools working on drafting appeals and conducting research.

Ultimately, the success of Parichay will depend on the commitment of law schools to further the mandate of free provision of legal aid under Article 39A of the Constitution of India. 

We hope that we are able to translate this initial wave of enthusiasm for Parichay into concrete support for lawyers in Assam, to ensure that no person goes unrepresented before the Foreigners’ Tribunal.