A legal hurdle in Assam

Legal complexities in the updating of the National Register of Citizens, 1951, linked to the cut-off date stipulated in the Assam Accord, stall progress on the issuance of Aadhaar numbers in the State.

Chief Minister Sarbananda Sonowal: "Once our NRC updation is completed, we will take up Aadhaar enrolment."

THE Central government’s decision to link Aadhaar numbers to welfare schemes, PAN applications and filing of income tax returns cannot be implemented in Assam for the simple reason that until March 31, the Unique Identification Authority of India (UIDAI) has assigned Aadhaar numbers to only seven per cent of the State’s projected 2015 population of 32,968,997 (source: UIDAI website).

The UIDAI authorities took up the work of enrolling people and assigning Aadhaar numbers to them on a pilot basis in three districts—Golaghat, Sonitpur and Nagaon—during the previous Congress regime in the State. However, the Bharatiya Janata Party (BJP)-led government in Assam in 2016, headed by Sarbananda Sonowal, decided to keep in abeyance the Aadhaar work until completion of the ongoing work of updating the National Register of Citizens (NRC), 1951.

In his speech at the 11th meeting of the Inter-State Council held on July 16, 2016, Sonowal spelt out the policy of his government on Aadhaar thus: “Although Aadhaar enrolment is only for the purpose of identification and does not confer citizenship to any person, there is a genuine apprehension in the minds of people of Assam that without updating the NRC, Aadhaar may be used by illegal migrants for getting various government schemes and for claiming citizenship.”

Sonowal requested Prime Minister Narendra Modi and the Central government to consider using alternative mechanisms to provide direct benefits, including subsidies and public services, to citizens in Assam. “Once our NRC updation is completed, we will take up Aadhaar enrolment and we will join other parts of the country in using Aadhaar for various purposes,” the Chief Minister said in his speech and added that his government expected the NRC work to be completed in the next couple of months.

However, legal complexities in the process of the updating the NRC may force the Assam government to put Aadhaar work on the back burner for a longer period.

Altogether 68.21 lakh families have applied for inclusion in the updated NRC and a total of 6.67 crore documents, involving about 3.27 crore individuals, are being verified to identify applicants and authenticate the eligibility claims for inclusion in the updated citizens’ register.

A Division Bench of the Gauhati High Court comprising Justices Ujjal Bhuyan and Rumi Kumari Phukan said in its judgment on February 28 that a large number of certificates provided by applicants as supporting documents to substantiate their claims for inclusion in the updated NRC had “no statutory sanctity”—46,76,391 certificates, including 41,94,733 new certificates, issued by gaon panchayat secretaries in rural areas; 4,19,394 by circle officers in urban areas and 62,264 by lot mondals in Bodoland Territorial Council areas and hill districts.

“We hold that such a certificate has no statutory sanctity, being beyond the mandate of the 1994 Act [Assam Panchayat Act, 1994] and the Rules framed thereunder. We have already held that issuance of such certificates is contrary to the mandate of the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003, besides not being in the national interest,” the judgment states.

The State Coordinator, NRC, Prateek Hajela, submitted before the court that these certificates were intended to support the residential status of married women because post-marriage they normally shift to a different location to reside with their husbands.

The NRC, 1951, is being updated in accordance with modalities prescribed by the Central government on November 22, 2014, which are based on the modalities forwarded by the Assam government on July 5, 2013. The Registrar General and Census Commissioner of India granted his approval to amended modalities that allowed submission of supporting documents, including certificates issued by secretaries of village panchayats countersigned by the local revenue official in respect of women who had migrated to other villages after marriage.

A tripartite meeting between the Centre, the State government and the All Assam Students’ Union (AASU) on the implementation of the Assam Accord held on May 5, 2005, decided that the NRC, 1951, would be updated with March 25, 1971, as the cut-off date within two years’ time and photo identity cards would be issued to those enrolled in the updated NRC. March 25, 1971, is also the cut-off date stipulated in the Assam Accord for identification and expulsion of “Bangladeshi migrants” who had entered Assam without valid travel documents after this cut-off date and were staying illegally in the State.

The High Court observed that barring the certificates issued by the gaon panchayat secretaries in rural areas and by circle officers in urban areas, all the other documents were existing documents issued up to midnight of March 24, 1971. “When the State is facing ‘external aggression’ and ‘internal disturbance’ due to the presence of a large number of illegal migrants, as held by the Supreme Court, where is the need to issue special directives to gaon panchayat secretaries for creation of new documents to facilitate inclusion of names in updated NRC? While on the one hand the Supreme Court has lamented the lack of political will to proceed against the foreigners and to send them out of the country, on the other hand we see an over-exuberance to create additional documents running into millions to facilitate inclusion of names in updated NRC,” the judgment states.

However, on March 8, the Supreme Court in a direction to the NRC State Coordinator, said the High Court order “should not halt the process of upgradation of the NRC”. A Division Bench of the apex court, comprising Justices Ranjan Gogoi and Rohinton Fali Nariman, in its order also directed the State Coordinator, to “continue to undertake the process of scrutiny that is presently going on in respect of all other claims for inclusion in the NRC and thereafter proceed to publish the draft NRC”. The court further directed that claims made on the basis of the aforesaid document “may be kept in abeyance for the present and will be subject to such orders as the court may pass on a later date.”

Even after the issue of verification of the claims of the over 46 lakh applicants is settled in accordance with orders to be passed by the Supreme Court and the updated NRC is published, both the Centre and the State government might be required to take a call on the legal status of Hindu Bangladeshis, whom the Centre proposes to grant Indian citizenship, in Assam vis-a-vis the updated NRC. The Centre has already tabled The Citizenship (Amendment) Bill, 2016, in both Houses of Parliament, which has been strongly opposed by opposition parties, the AASU and various student and youth bodies of the State.

As the Sonowal government has decided that Aadhaar should be issued only to those whose names are in the updated NRC, it presents a possibility that even after acquiring Indian citizenship, Hindu Bangladeshis may not be eligible for assignment of Aadhaar numbers. Unless the cut-off date for submitting claims for inclusion in the updated NRC is altered, any post-1971 Indian citizen will not be eligible for inclusion in the citizens’ register in Assam. However, a change in the cut-off date will render the entire process of updating the NRC, 1951, towards finding a permanent solution to the vexed foreigners’ issue, a fruitless exercise. Until such issues are settled, people in Assam may be required to keep producing, for an uncertain period, a whole lot of documents to authorities outside the State to prove their exemption from producing Aadhaar proof.