Within a week of Amit Shah assuming charge at the Ministry of Home Affairs (MHA), a notification was issued in The Gazette of India which amended the Foreigners (Tribunals) Order, 1964. The May 30 notification from the ministry, designated the Foreigners (Tribunals) Amendment Order, 2019, amends the older Order and as a consequence, grants state and local administrations the power to refer suspected ‘immigrants’ to a Foreigners Tribunal. Whereas earlier this power rested officially with the Central Government, the amendment introduces changes to sub-para 1 of the 1964 Order, which now reads:

The central government or the state government or the union territory administration or the district collector or the district magistrate may by order, refer the question as to whether a person is not a foreigner within the meaning of the Foreigners Act 1946 to a tribunal to be constituted for the purpose, for its opinion. (sections in bold indicate the most recent changes)

Foreigners Tribunals have, until now, only been instituted in Assam but the changes notified seem to indicate that all state and local administrations are now empowered to do the same. To assuage these concerns, the MHA issued a clarification on June 11, wherein it stated that the Foreigners (Tribunals) Order, 1964 was, since its inception, “applicable to the whole country,” as are the amendments to the same, including one made in 2013. “Therefore, there is nothing new in this regard in the latest amendment of May 2019,” the MHA wrote. The Ministry also clarified that the latest amendment was intended to “lay[s] down the modalities for the Tribunals to decide on appeals made by persons not satisfied with the outcome of claims and objections filed against the NRC [National Register of Citizens]” and since the NRC exercise is going on only in Assam, the Order is “applicable only to Assam as on date for all practical purposes“. In conclusion, it reiterates that, “Since the Foreigners Tribunals under this order have been established only in Assam and in no other state of the country, this amendment in effect is going to be relevant only to Assam at present (emphasis added).”

The MHA clarification provides another opportunity for partisans of the ruling party to protest the ‘selective outrage’ of the ‘liberal media,’ since the latest Order has been presented as something unprecedented. That it is not is borne out by the facts – the 1964 Order did indeed have country-wide jurisdiction (though applied solely to Assam) and under the Order, all state governments could set up Foreigners Tribunals, though only after receiving a procedural nod from the Central government. The charge of the partisans’ is not without merit, as there is a popular tendency among cosmopolitan liberals that populate most media outlets to portray everything the Narendra Modi government does as something wholly monstrous and exogenous to Indian politics. But that is hardly a surprise, given liberals’ inability to come to grips with the inherently reactionary nature of the Indian State, administered for the most part by the Congress which has perpetrated a whole litany of unspeakable crimes during its long tenure, the demonisation and dehumanisation of immigrants only being one of them.

However, it would be thoroughly irresponsible for us to dismiss the implications of the May 30 Order simply because it is business as usual. Just because successive Congress governments, even though they had the power to, did not constitute Foreigners Tribunals in states other than Assam, does not mean the Bharatiya Janata Party (BJP) would do the same. After all, the man pulling the strings at the MHA now is Amit Shah, who, in the run up the Lok Sabha elections, referred to illegal immigrants as “termites” and vowed to “throw them into the Bay of Bengal”. It is also worth noting that the speech from which these remarks are quoted was delivered in West Bengal, not Assam, where illegal immigration from neighbouring Bangladesh was used by the BJP to mount an attack on the ruling Trinamool Congress (TMC). Is it unlikely, given the gains the BJP has been making in West Bengal, that a future state government led by the party could begin instituting Foreigners Tribunals, potentially targeting millions? And after honing the process in Assam and West Bengal, how improbable is it that the NRC would be implemented all over the country by the Central government, as Shah and the BJP’s Assam chief minister Sarbananda Sonowal, have suggested? The use of phrases such as “for all practical purposes” and “at present” to qualify the MHA’s clarification to the Order appears extremely ominous given the stated intentions of the BJP’s top leaders. Furthermore, it must be remembered that the term ‘illegal immigrant’ is largely a euphemism for Muslims, Shah having expressly stated that “Hindus, Sikhs, Buddhists and Jains [refugees] need not worry [about the NRC and the Citizenship Amendment Bill]”. Given these troubling signs, is it too far-fetched to think that a party ideologically committed to the Hindu Rashtra project, with a well-documented and pathological hostility towards the Muslim community, could round-up and “throw out” a section of that community? Could such a nation-wide undertaking not have a demonstrative effect on the remaining Muslim community to submit to a de facto apartheid rule or risk being detained, deported or worse?

It is important that these questions be raised, not for the sake of speculation, or ahistorical fear-mongering as the liberals are prone to indulge in. Rather, these questions must compel one to critically examine the nature of the liberal-capitalist State and understand that its all-powerful machinery can, in the hands of a fascistic party with a well-identified internal enemy, lead to disastrous consequences. The constitutional framework that under-girds the State can compound our complacency in recognising these threats, as the ruling party can justifiably claim that it is following the accepted legal process and point to actions of previous governments as valid precedents. After all, the NRC process in Assam is entirely legal and is being overseen by the highest court of the land; but the outcome of the process can hardly be termed just when 40 lakh people now have to prove their citizenship to Tribunals that are reportedly opaque, arbitrary, corrupt and disproportionately unfair to the illiterate and impoverished. The people who fail the citizenship test can expect to join more than 900 detainees at Assam’s six detention centres (and a new one on the way, with the capacity to hold 3,000 people), since mass deportations to Bangladesh are highly unlikely, and the Bangladeshi government has been reassured of the same by the Prime Minister himself. Conditions for detainees at these centres are dismal, having been described as “worse than [for] regular prisoners,” with children of suspected ‘immigrants’ being separated from their families. Many more detention centres are bound to crop up in Assam and elsewhere, if the NRC is extended to other states.

One can easily imagine the horrors that a ruthless State can inflict on such a large number of stateless non-people with no rights and no recourse to justice, and draw the necessary historical parallels. By refusing to stand up for those already targeted, we are all complicit in the injustice meted out so far. But if we are determined not to be silent accomplices to the impending catastrophe, legal as it may be, we face a simple choice — we must register our vehement protest against this possibly genocidal exercise now, while we can still collectively do something about it, or risk reading our own version of the ‘Final Solution’ published in The Gazette of India.