Assam: NRC and After
THE publication of final NRC in Assam has drawn the attention of the whole country. Not only now but for last couple of years, with the publication of first draft, stories related to NRC are hitting the headlines in all forms of media. The question of ‘stateless’ people it may create has been keenly watched by the international media as well.
Perhaps now it needs no repetition that till now the NRC was unique and specific to Assam only. In independent India, only Assam had prepared National Register of Citizens (NRC) in 1951. After independence in 1947, the country had its first census in 1951. In Assam, the data of the census was converted into the NRC, 1951.
After independence also, the migration continued. Communist leader Hemen Das(89 year old), who was witness to the post-independence communal frenzy, recalls the situation immediately after independence: “After 1947 western part of the country saw massive migration to both sides of the border. The intensity of the migration slowed down significantly after 1948. The Constitution of India reflects this situation and provides for Indian citizenship to those who have come from Pakistan up to 19 July, 1948. But in East Pakistan, there were massive riots post 1947. This led to large migration to Assam, particularly in 1950. There were large number of cases of arson and looting on Muslims of East Bengal origin in some parts of Assam and as a result a large number of Muslims fled to East Pakistan. So in the immediate context of these migrations, the NRC Assam was proposed in 1951 under the Census Act. Therefore, data of the census were converted to prepare the NRC in undivided Assam of post-independent India. Copies were sent to the police stations, offices of Congress and Jamiat-Ulema-e-Hind. The NRC was supposed to be updated regularly, but it wasn’t.”
It may be recalled here that the influx continued in post independent India, both due to economic and social reasons. Of course, these were religious persecution and fear of religious persecution in Islamic Pakistan and these factors also contributed to the influx. In 1971 East Pakistan was carved out of Pakistan and named as Bangladesh. The new country opted for a secular constitution.
In 1979, a massive movement broke out in Assam which demanded detection and deportation of all those who have entered Assam from East Pakistan and Bangladesh. They demanded that 1951 should be the cut-off year for NRC. The CPI(M) and other left and democratic forces opposed this demand and firmly expressed its view that March 25, 1971 should be the cut-off date as there in no chance of Bangladesh taking back pre-1971 migrants, i.e., of East Pakistan.
There were bloody attacks on CPI (M) and other left and democratic forces. But in Assam Accord, signed between the AASU-AAGSP, the Assam government and the central government as a culmination of the six-year-old Assam agitation on August 15, 1985, earmarked March 25, 1971 as the cut-off date for detection and deportation of foreigners coming from Bangladesh. The Assam Accord was presented before the Parliament on August 16 and subsequently the Parliament amended the Citizenship Act, 1955, inserting a new clause 6 (A). This clause provided for citizenship to all the immigrants from the ‘specified territory’, i.e., Bangladesh who have entered Assam and generally been residing in the state up to March 24, 1971.
But successive governments did nothing to detect the foreigners. On the contrary, indiscriminate harassment continued on thousands of religious and linguistic minorities in the name of foreigners. As the government failed to complete barbed wire fencing on the border, an apprehension continued to haunt the psyche of the people of the state that influx is continuing unabated across the border. As a corollary, different assumptions and wild exaggerations about the number of infiltrators also continued.
In such a situation, an environment of suspicion guided many. A number of incidents occurred where people were harassed branding them as ‘Bangladeshi’. For minority people, permanent resident certificate (PRC) became elusive. Consequently, for the students, admissions to higher institutions, particularly professional institutions, became difficult.
In 1996-97, the Election Commission of India (ECI) introduced the dangerous D-voter (Doubtful Voter) system. ECI announced that on the basis of its enquiry, it has prepared a list of doubtful citizens and they would be stamped as D-voters in electoral rolls. Later it became evident that a large number of people were stamped as D-voters without proper verifications. ECI ruled that only after they prove their Indian citizenship in Foreigners Tribunals (FT) the ‘D’-level would be removed and they would get back their right to vote. This evoked sharp reactions and it was challenged in the court. But the Gauhati High Court and subsequently the Supreme Court upheld the D-voter system.
Subsequently the procedure in the FT also changed fundamentally. Since 1983, the proceedings in the FTs were as per the Illegal Migrants (Detection by Tribunals) Act 1983. As per this act, if a reference is given against a person (D-voter), the onus of proving rests on the accuser. But in Sarbananda Sonowal versus Union of India case, the Supreme Court struck down the IM(DT) Act on July 12, 2005. Then onwards the proceedings in the FTs are as per the Foreigners Act, 1946 whereby the accused has to prove that he is not a foreigner.
On January 3, 2013 a full bench of the Gauhati High Court ruled that “the persons detected to be foreigners shall be taken into custody and kept in detention camp (s) till they are deported from India within the aforesaid time-frame”.
These two D’s have greatly impacted upon the happenings in Assam. Lakhs of people are stamped as D-voters. After 1997 it is not ECI, but the Border Police, which has prepared, in most of the cases arbitrarily, lists of suspected foreigners and cases are referred to FTs by the Border Police. A copy of the list is forwarded to the Elector Registration Officers (EROs) and they stamp these people as D-voters. In many cases, it is observed that the proceedings in the FTs are grievously faulty. As a result, many Indians are declared as foreigners and are being detained in detention camps.
In such a complex situation, the proposal for updating the NRC of 1951 slowly came into prominence. Assamese speaking people and different tribal communities supported the proposal because they had an impression that an updated NRC would help detect the foreigners. On the contrary, the religious and linguistic minorities were for NRC because they hoped that it would release them from the agony of D-Voter, detention camps and the related trauma. Almost all political parties and organisations supported the proposal for updating NRC with March 24, 1971 as the cut-off date. The central government did agree for an updating of NRC way back in 2005 but postponed it again and again on different pretext. Ultimately the Supreme Court intervened and the process started in 2013.
NRC UPDATING PROCESS
According to the Citizenship (Register of Citizens and Issue of National Identity Cards) Rules, 2003 unlike other parts of India, where it would be enumeration based, the NRC process in Assam would be application based. The three-month long application process, that ended on August 31, 2015 saw 68,37,660 applications (both offline and online) filed for 3,30,27,661 people. Fifteen documents were identified as admissible documents. People were asked to prove their legacy (i.e., presence in Assam or in any other part of India) before March 25, 1971 and legacy person and his/her offshoots were eligible for NRC. Subsequently the families were asked to submit their ‘family trees’. Matching of the names was verified for all the families who used the same legacy. Hearings were held where discrepancies were detected. Illiterate married women faced tremendous difficulties in establishing linkage with their fathers. Though panchayat certificates were admissible documents, there were a number of riders. Debate arose with the division of the applicants as original inhabitants (OI) and non-original inhabitants. Though there is provision for OI in Schedule to the Citizenship (Register of Citizens and Issue of National Identity Cards) Rules, 2003 on the basis of which the NRC is prepared, no parameters are prescribed for determining the OI. So, the arbitrariness with which the NRC authority identified the OIs came for sharp flak.
The final draft was published on July 30, 2018. 40,43,948 (12.24 per cent) did not find place in the list. Then, started the phase of claims and objections; out of 40,43,984 left out 36,26,330 filed claims for inclusion and objections were raised against inclusion of 1,02,462 persons in the draft list. The NRC state coordinator proposed to drop five documents from admissible documents lists. But almost all political parties opposed it. Finally, the Supreme Court overruled the proposal. The court asked the union home ministry to propose the Standard Operating Procedure (SOP) for this phase. But the BJP government did not consult any political party or stake-holders for this. The CPI(M) Assam state committee on its own proposed several important SOPs to the home ministry. One was, till the NRC process is over, the FTs dealing with the D-Voters should be put ‘on hold’. All those who can prove their eligibility should be included in the NRC. Names of those who are left out of final list may be sent to the FTs for appeals etc. Another important suggestion was, to include the names of women and children using the ‘family tree’ mechanism. The Party also asked to go for DNA tests as a last resort to establish linkage with the legacy person, the cost of which should be borne by the government. But the BJP governments, both at the centre and in the state took the SOP most casually and sat upon the important suggestions.
Hearing in this phase was more rigorous; lakhs of people had to appear 4-5 times before the hearing panel in far-off places. It involved a high range costs almost unbearable for most of the poor families. Again, objections were raised indiscriminately and in most of the occasions, objectors were absent leading to ex-parte hearings.
On June 26, 2019 the NRC authority published an additional list whereby 1,02,462 people were proposed to be dropped from the draft list as they were identified to be D-voters (D-V), declared foreigners (DF), people having cases pending at Foreigners Tribunals (PFT) etc. Separate hearings were arranged for these people.
Finally, after four long years the final list of NRC was published on August 31, 2019 which includes 3,11,21,004 (94.23 per cent). 19,06,657 (5.77 per cent) names were excluded which is a quite a large number. It is clear that a huge number of Indians are left out. Even people having own legacy are not included. Large numbers of those excluded are women. In a large number of families, children are out of the list though parents are in. Some people are excluded, though using the same legacy his/her brothers or sisters are found to be eligible for inclusion. Though the refugee certificates were admissible documents, in thousands of cases these were not accepted by the authorities. Thousands of Bengali Hindu people also submitted migration certificates, but these were not recognized as admissible documents.
APPEAL: THE INTRICACIES
Now those excluded can file appeal in the designated tribunals. The appeals have to be filed within 120 days in the Foreigners Tribunals formed under Foreigners Tribunal Order, 1964. The tribunals will issue notice to the district magistrates to submit the original file of the excluded, within one month. After receiving these within a month the tribunal would decide whether the appeal has the merit to be heard. This is a dangerous provision by which a tribunal can arbitrarily dismiss the appeal even without hearing it. The CPI(M) has already submitted a memorandum to the union home secretary demanding scrapping of this provision.
Just on the eve of NRC final list publication, the central government, through an extraordinary gazette notification on August 30, 2019 has further amended the provisions for appeal. According to this if an appeal is rejected then the tribunal should give a clear finding as to whether the appellant is a foreigner or not. This implies that if an appeal is rejected, the appellant will automatically be termed as a foreigner. This new provision may negatively impact upon the whole proceedings of the designated tribunals.
Considering the heavy costs involved in the appeal process, the government should explore devices for inclusion of genuine Indians without going through designated tribunals. The children of a family where parents are already included in the list, left out women and family members, where other family members are already included in NRC using some legacies, the persons whose citizenship are beyond any doubt, should find place in the NRC without going through the FTs. The poor people should get legal assistance free of cost.
The Foreigners Tribunals are quasi-judicial bodies. But for determination of an important issue like citizenship, judicial forum should be the proper scrutiny forum, not a quasi-judicial body like FTs.
After all legal options are exhausted, what will be the fate of the people left out? The government is maintaining silence on this crucial issue. The issue has become critical because the representatives of the Bangladesh government are time and again denying the fact that there is any immigration from Bangladesh to India after 1971. Actually, these statements are not based on facts. In last two years, 278 people have been accepted by the Bangladesh government who were detected to be foreigners coming from specified territories. On July 25, 25 persons who were in detention camps were handed over to Bangladesh Police at Sutarkandi border in Karimganj district by the Indian government. Anyway, if the Bangladesh government denies the people detected to be foreigners as their own citizens, then it is not possible to send them to Bangladesh. So, how to deal with this problem involving lakhs of people? Detention camps cannot be the answer. Well thought-out plan is necessary and every effort should be made to build up consensus. But the government is not interested to have dialogue with anyone, not even with the political parties. Communal politics and mean political interest are their driving force. If this continues, then the situation may get further complicated.