FOURTEEN years after New Delhi gave its commitment to update the National Register of Citizens (NRC) in Assam, the State has got the final list of the updated register. However, politicisation of the citizenship issue has become the stumbling block to the updated NRC being accepted as the document to be relied upon for identifying Indian citizens in Assam.
The Narendra Modi government has promised to bring the Citizenship (Amendment) Bill to grant citizenship to Hindu and other non-Muslim migrants among those excluded from the final NRC list in Assam. The NRC has been updated with the cut-off date of March 24, 1971. The cut-off date proposed for granting Indian citizenship under the Citizenship (Amendment) Bill is December 31, 2014.
This means that those who migrated between March 24, 1971, and December 31, 2014, will be eligible for Indian citizenship through the Bill but they will not be eligible to be included in the updated NRC list in Assam. Therefore, it will lead to the creation of two classes of Hindus and other non-Muslim religious groups in Assam—one class that is included in the NRC and the other class that is excluded from it despite the fact that both classes will have Indian citizenship.
If the government pushes for the NRC project along with the Bill in other States where the cut-off date for compiling the NRC is 1951, a similar situation will occur.
A situation where Hindus are divided into two classes is not what the ruling Bharatiya Janata Party (BJP) and the Sangh Parivar want, which explains why the Modi government did not show the same will to commute the Bill into a law before publication of the final NRC list—despite having the numbers—as it did in scrapping Article 370 and bifurcating Jammu and Kashmir. Passing the Bill would have saved a large section of Hindu migrants from erstwhile East Pakistan and present-day Bangladesh the trauma of exclusion.
Wrongful exclusion and inclusion
Altogether, 19.06 lakh of the total of 3.30 crore applicants have been excluded from the final NRC list. The excluded allegedly failed to prove residency in the State or anywhere in India prior to the cut-off date of March 24, 1971, that was fixed for updating the citizens’ register in Assam in accordance with the Assam Accord.
There have been allegations of wrongful exclusion and inclusion on grounds of deficiencies in the NRC methodology. As a result of this, the issue of identification of “illegal Bangladeshi migrants”, which has remained unsettled for more than three decades, will likely be kept alive for several years.
There was political consensus in the State that an updated NRC on the basis of the Assam Accord was the panacea for the vexed problem. Now, the consensus seemed to have gradually receded and politicisation of citizenship on religious and linguistic lines has taken centre stage.
The BJP and the Sangh Parivar have been pushing the narrative that “illegal Bangladeshi Muslim migrants” managed to include their names with forged documents while the NRC authorities refused to accept the Refugee Registration Certificates issued by the Government of India to “Hindu refugees” who fled religious persecution in erstwhile East Pakistan as documentary evidence to support their claim of pre-1971 residency in Assam.
Minority organisations, on the other hand, accused the NRC authorities of rejecting “genuine documents” of many genuine Indian citizens belonging to religious and linguistic minorities. The All Assam Students Union alleged that both the Centre and the Assam government failed to check the inclusion of “many illegal migrants’ names” and the exclusion of “many indigenous applicants”.
Assam Public Works, a non-governmental organisation whose petition led to the Supreme Court-monitored exercise, said that it would move the apex court for 100 per cent reverification of the NRC data.
The publication of the final NRC list does not mark the closure of the process of identification of Indian citizens, which was expected to set the ball rolling for identification of “illegal Bangladeshi migrants” in the State. Rather, it signals the start of a long-drawn legal process for the 19.06 lakh excluded applicants which will further delay the identification of “illegal Bangladeshi migrants” in accordance with the Assam Accord.
Until the cases of all those who have been excluded are decided by the Foreigners Tribunals and subsequently by the Gauhati High Court and the Supreme Court, the politicisation of citizenship is unlikely to allow other issues to come to the fore in the State’s electoral politics. Assembly elections in the State are due in 2021.
Abir Phukan, an advocate practising in the Supreme Court, told Frontline : “The NRC list is anything but final. When a Constitution Bench is yet to hear and decide the reference made to it to determine the constitutionality of cut-off date in Section 6A of the Citizenship Act, 1955, are we not staring at a possibility, however remote, that the entire basis of conducting the exercise of updating the NRC may be wiped out?”
He added: “Since this uncertain state of affairs is likely to exist for a while, is it appropriate to force those who have been excluded in the final list to approach the Foreigners Tribunal under Clause 8A of the Schedule to the Citizenship Rules 2003 to establish their citizenship? What is the scope of Clause 8A? To what extent the Foreigners Tribunal can interfere and reappreciate evidence and what the scope of judicial review would be are some of the grey areas to be settled by the court in due course. Until then, the hardships of all those excluded are likely to persist.”
Politics of migration
The political discourse and the question of settling the citizenship issue of the residents of Assam have prevented the collective memories of migration of people into the State from erstwhile East Bengal (erstwhile East Pakistan) from fading away. The numbers of exclusions and inclusions in the final NRC have become the new focus of this political discourse where facts have given way to perceptions shaped by the narratives and counter-narratives of migration of people, which will impact demographics and identities in Assam and other north-eastern States.
Disaggregation of NRC data into religion and language categories is not possible as such pieces of information were not collected from the NRC applicants at any stage. The NRC authorities have also not released district-wise disaggregated data of the final list. However, specific stories of exclusions reported by the media and allegations by political parties and organisations have given rise to the perception that Hindu and Muslim migrants from East Bengal as well as from erstwhile East Pakistan constitute the majority of those excluded. The ruling BJP has a large electoral stake among Bengali Hindus in the State, who include migrants from erstwhile East Bengal. And its allegation that the NRC authorities are not accepting Refugee Registration Certificates of many such migrants has shaped the public perception that Bengali Hindu migrants might constitute a sizable section of those excluded. Besides, a list giving a breakdown of migrants on religious and linguistic basis among the excluded, which has no authenticity, is also circulating through a section of the media, including social media.
Among the excluded are four lakh applicants who did not file claims for inclusion. This, coupled with claims of mismatch between the total number of applicants and the population figures projected for 2015 and the 2011 Census figures, has shaped the perception that many “illegal Bangladeshi migrants” who came to Assam after March 24, 1971, had not even applied for inclusion in the updated citizens’ register.
Stories of exclusion of indigenous applicants as well as migrants from other States in India also are being used by defenders of the NRC exercise to question the justifications for replacing the binary of citizens and non-citizens with the binaries of Hindu and Muslim or indigenous and non-indigenous people while dissecting the exclusion and inclusion figures of the final NRC list.
The Supreme Court has yet to make its observation and issue a directive on the final NRC list as well as the Standard Operating Procedure to be followed for legal remedies of the excluded applicants. The Foreigners (Tribunals) Amendment Order, 2019, notified by the Union government, describes the procedure to be followed in respect of appeals to be filed by those excluded from the NRC list.
The appellant shall submit a copy of the rejection order from the NRC authorities along with the grounds of appeal to the respective Foreigners Tribunal. The appellant may appear either in person or through a legal practitioner or a relative authorised by the appellant in writing subject to the acceptance of such representation by the tribunal.
The District Magistrate may also refer to the tribunal for its opinion the question of whether an appellant is a foreigner or not within the meaning of the Foreigners Act, 1946. The tribunal shall examine the said reference along with the appeal. The amendment order states that persons against whom a reference has already been made by the competent authority to any Foreigners Tribunal shall not be eligible to file an appeal before the tribunal.
Besides, if any Foreigners Tribunal has already given an opinion about a person as a foreigner, such person shall not be eligible to file an appeal to any tribunal.
The final order of the tribunal shall contain its opinion on the matter of whether an appellant is eligible for inclusion in the NRC or not. It shall also contain the opinion of the tribunal on the reference of the District Magistrate.
The number of Foreigners Tribunals in Assam has gone up to 300 with the government setting up 200 new tribunals.
Himanta Biswa Sarma, a senior BJP leader and Assam Minister for Health, Finance and Public Works, said that the State government would move the Supreme Court for 20 per cent reverification of the NRC data in the border districts and 10 per cent reverification in other districts.
“If the reverification reveals no discrepancies, then we will accept the final NRC list as correct. We will also request the Central government to include Assam in the exercise of National Population Register,” he told Frontline .
On July 23, the Supreme Court turned down pleas by both the Central and Assam governments for a sample reverification of the NRC data to address the issue of wrongful exclusion and inclusion on the grounds that the State NRC Coordinator, Prateek Hajela, in his report to the court, said “in the course of consideration/adjudication of the claims, reverification to the extent of 27 per cent has already been done” and also mentioned district-wise figures of such reverification.
A rigorous exercise
During the NRC exercise, applicants had to go through a rigorous verification process that included office verification for validating the documents submitted to support residency claim and field verification for identifying applicants and authenticating their claims. Altogether, 49.42 lakh Letters of Information were generated centrally using software wherein all the “conflicting descendants spread across NRC Seva Kendras, Circles, Districts and States” were asked to appear before an Investigating Officer on a specific date and time at a specified venue.
Over a period of 80 working days from February 17 to June 6, 2018, a total of 9.15 lakh “family tree hearings” were conducted by 6,241 Investigating Officers across Assam. As many as 27.6 lakh “special verifications” were undertaken from April 2 to July 7, 2018, for verification of marriage certificates issued to 26.08 lakh married women by gaon panchayat secretary or lot mandal or circle officer as proof of linkage.
However, the verification venues were located far away from the residences of most of the applicants who were asked to appear for family tree verification and special verification. Many families had to sell their livestock or other belongings to meet the travel and accommodation expenses to appear at the hearings.
Alleging that the final NRC list was full of errors, Bijan Mahajan, the Assam BJP spokesperson and senior Gauhati High Court advocate, said that the remedial measures lay either in the court of law or in the legislative domain. “Undoubtedly, the errors are so many, the quantum is so huge, the best option is to seek remedy in the legislative domain,” he added.
The legal validity of the final NRC list is critical to ending the arbitrary referring of names to Foreigners Tribunals by the border wing of the Assam Police and ending the trauma of lakhs of persons who have carried the “suspected foreigner” tag for decades.
In February this year, Assam Parliamentary Affairs and Transport Minister Chandra Mohan Patowary informed the Assam Assembly that between 1985 and August 2018, a total of 6,26,793 persons had been referred to Foreigners Tribunals after cases of being “suspected foreigners” were registered against them. The Foreigners Tribunals declared 1,08,815 of them as Indians and 1,03,764 as foreigners.
These figures show that allegations by minority organisations of harassment of genuine Indian citizens merely on suspicion are true. Prof. Nani Gopal Mahanta, Director of the Centre for South East Asian Studies at Gauhati University and a political commentator, said that publication of the final NRC list was not going to have any impact on bilateral relations between India and Bangladesh. “India has never put the issue of ‘illegal Bangladeshi migrants’ on the table of bilateral discussion with the neighbouring country,” he said.
“Prime Minister Narendra Modi said that India’s Act East policy started with Bangladesh. Bangladesh also plays a pivotal role in two key regional sub-groupings critical to India’s foreign policy initiatives for bilateral and multilateral cooperation with neighbouring countries. They are BBIN [Bangladesh Bhutan India Nepal] and BIMSTEC [Bay of Bengal Initiative for Multisectoral Technical and Economic Cooperation],” he pointed out.
According to him, India and Bangladesh have also set an example of peaceful resolution of border disputes. “The noise made by the ruling BJP as well as the Modi government over the NRC in Assam and the issue of Bangladeshi infiltrators is only for consumption in India’s internal politics and it is not going to create any bottleneck in expanding India-Bangladesh relations,” said Prof. Mahanta, a keen watcher of geopolitics in the north-eastern region and in the neighbourhood.
The final status of the excluded applicants, after they have exhausted all legal remedies, remains uncertain. Even though the Central government has ruled out declaring the excluded applicants as “stateless” until they exhaust all available legal remedies, the fear of being declared stateless in the event of failure to establish their claim for Indian citizenship in court is going to grip thousands of applicants for a long time.
Amid the controversies over the final NRC list, Union Home Minister Amit Shah assured the Chief Ministers of the north-eastern States at the fourth conclave of the North East Democratic Alliance (NEDA) in Guwahati on September 9 that December 31, 2014, would be the cut-off date for the proposed Citizenship Amendment Bill to be tabled by the government.
However, the BJP is treading cautiously on the issue, taking care not to antagonise its regional allies in Meghalaya, Mizoram and Nagaland.
“In respect of the Bill, we may need to bring a new version of an amendment to ensure that it does not have an overriding effect on the Inner Line Permit system, existing protections under Article 371 and provisions of the Sixth Schedule of the Constitution in north-eastern States and other specific State Acts ensuring certain rights specific to the residents of that State,” said Himanta Biswa Sarma, the NEDA convener. However, since the Bill throws up the possibility of dividing Hindus in India into two classes, the BJP is expected to use it only as a tool to woo voters in West Bengal and other States. It will certainly not want to end up dividing Hindus in the name of a countrywide NRC.