Citizenship Issues

Final NRC list: List of exclusion

Print edition : September 27, 2019

Residents protesting against the non-inclusion of their names on the final NRC list, at Gorbeter in Baska district of Assam on September 2. Photo: PTI

A woman with the acquirer reference number of her family members as she arrives to check their names on the final NRC list in Morigaon district on August 31. Photo: ritu raj konwar

Applicants submit their appeals after the release of the final NRC list, at an election office in Tezpur on September 3. Photo: PTI

Political parties and people reject the final National Register of Citizens list, describe the exercise as “faulty”, and allege that the updated register includes names of “illegal Bangladeshi migrants” but excludes genuine citizens.

THE Bharatiya Janata Party (BJP) has been talking about compiling a countrywide National Register of Citizens (NRC), but it speaks in two voices about the final list of the updated NRC in Assam. The final and updated list of the citizens register published on August 31 does not include the names of 19 lakh of the total of 3.30 crore applicants. The complete draft of the NRC published on July 31, 2018, excluded around 40 lakh applicants.

While the Narendra Modi government has claimed that “the NRC is a fair process based on scientific methods”, the Assam unit of the BJP has rejected the final NRC list, dubbed the NRC exercise as “faulty”, and alleged that the updated register includes names of “illegal Bangladeshi migrants” but excludes genuine citizens.

External Affairs Ministry spokesperson Raveesh Kumar, while clarifying the Modi government’s official position on the final list, stated: “Exclusion from the NRC has no implication on the rights of an individual resident in Assam. For those who are not in the final list will not be detained and will continue to enjoy all the rights as before until they have exhausted all the remedies available under the law. It does not make the excluded person ‘stateless’. It also does not make him or her ‘a foreigner’, within the legal meaning of the term. They will not be deprived of any rights or entitlements which they have enjoyed before.”

However, the ruling BJP’s ally the Asom Gana Parishad (AGP), the Congress and other opposition parties, the All Assam Students Union (AASU) and the Assam Public Works (the APW is the original petitioner who filed a case in the Supreme Court that led to the NRC updation process) have expressed dissatisfaction over the final NRC list and the alleged exclusion of genuine Indian citizens and inclusion of “illegal Bangladeshis”.

Himanta Biswa Sarma, senior BJP leader and Minister for Finance, Health and Public Works in the Sarbananda Sonowal government, has gone on record to say that the Assam government would move the Supreme Court again for reverification of the NRC data. State BJP president Ranjit Kumar Dass said the party would bring in legislation to amend the citizenship laws to protect Indian citizens. Sarma and Dass blamed the State NRC coordinator, Prateek Hajela, for the “discrepancies”. However, top BJP leader and the party’s general secretary Ram Madhav tweeted: “National Register of Citizens NRC finally published. Compliments to d official team. Details like the list of d 19 lac names excluded etc are still awaited. Sonowal Govt in Assam is taking all steps to maintain L&O.”

The APW has decided to move the court for reverification of the final list. The AASU, while saying that it would move the apex court seeking measures for the removal of the discrepancies, defended the Supreme Court-monitored process of updating the NRC and put the blame on the Centre and the Assam government for “failure to discharge duties to ensure a correct NRC free from names of illegal Bangladeshis”.

The argument put forward by the BJP, the AGP, the APW and the AASU is that the figure of those excluded was far smaller than the figures of “illegal Bangladeshis” that successive governments had given in the past. However, they have conveniently ignored statements tabled on the floor of Parliament in which the government said there was no estimate of illegal migrants available. In 2016, the then Minister of State for Home, Kiren Rijju, told the Rajya Sabha that there were two crore “illegal Bangladeshi immigrants” in the country, but on December 12, 2017, he informed the Lok Sabha in a written reply that as entry of foreign nationals without valid travel documents “is clandestine and surreptitious, there is no correct estimate of the total number of such illegal immigrants staying in the country”.

The figures based on casual inputs are to be weighed against the figures coming out of the mammoth exercise, the NRC process, in which 52,000 government officials scrutinised 68.37 lakh documents, disposed of 36.26 lakh claims and 1.87 lakh objections over a period of four years.

Legal remedies

The excluded applicants will get an opportunity to file an appeal before the foreigners tribunals (FTs) within 120 days of receiving the notification on exclusion. Anyone aggrieved by the decisions of the tribunals will be able to approach the Gauhati High Court and subsequently the Supreme Court. This means that the final updated NRC list is not a final verdict on the status of citizenship of the excluded; only the courts will decide their citizenship status. The Government of India, the Assam government, and political parties and organisations have assured legal assistance to the excluded. The number of FTs in Assam has gone up to 300, with the government announcing that 200 more tribunals will be set up by December. These will be set up at the development block level for the convenience of the applicants.

But the number of the excluded compared with the number of tribunals and the strength of the higher judiciary indicate that the process of determining the citizenship status of the excluded will be a long-drawn-out process. Until the entire judicial process in respect of the final list is completed, any figure on the number of “illegal Bangladeshi migrants” in Assam will be the result of guesswork with no legal basis.

The final list of the updated NRC, however, does not have the last word on the status of those included as well. In its order on August 13, the Supreme Court said the NRC would be updated subject to orders as may be passed by the Constitution Bench on two petitions challenging the validity of Sections 3 and 6 of the Citizenship Act, 1955, pending before it.

Cut-off date

These two sections of the Citizenship Act and Rule 4A framed accordingly in the Citizenship Rules were critical in March 24, 1971, being taken as the cut-off date and in deciding other modalities for updating the NRC. The BJP, the Rashtriya Swayamsewak Sangh and other Sangh Parivar outfits have been pushing for 1951 as the cut-off date for the entire country, including Assam, building the campaign on the argument that there should not be two cut-off dates for compiling the NRC.

Taking 1951 as the cut-off date in Assam would lead to the exclusion of scores of migrant families from erstwhile East Pakistan, who migrated to the State after Partition until the creation of Bangladesh.

By signing the tripartite Assam Accord in 1985 with the Government of India and the Assam government, the AASU and the erstwhile Asam Gana Sangram Parishad agreed to accept these pre-1971 migrants, irrespective of their being Hindus or Muslims, from erstwhile East Pakistan who came to Assam without valid travel documents and who have been living in the State as Indian citizens. However, in respect of migrants who came after January 1, 1966, and until March 24, 1971, the Accord says they will remain disenfranchised for a period of 10 years from the date of their registration with the respective Foreigners Regional Registration Officer after their identification.

It says that all those “illegal Bangladeshi migrants” who came to Assam after the cut-off date of March 24, 1971, irrespective of whether they are Hindus or Muslims, are liable to be identified, their names deleted from electoral rolls, and they would be expelled from the country. In 1985, Section 6A was inserted in the Citizenship Act to grant citizenship to migrants covered by the Assam Accord. This led to devising a special procedure in the form of Rule 4 A for the preparation of the NRC in Assam under which all claims for inclusion in the NRC have to be linked to an entry in the NRC, 1951, of Assam or the electoral rolls up to March 24, 1971, or have to be on the basis of additional documents. Rule 4 A is not applicable to rest of the country, and 1951 is the cut-off year for determination of eligibility for inclusion in the NRC.

D-Voters

Although the Modi government says that the excluded will continue to enjoy all rights and entitlements as before, the Election Commission of India (ECI) will have to take the final call about tagging the electors among them as D (Doubtful/Disputed)-voters until their cases are decided by the FTs.

The Manual on Electoral Rolls of the ECI says the Electoral Registration Officer must ensure that the electoral roll contains only the names of persons who are fully eligible and fulfil all the conditions for registration. One such condition of eligibility is that the elector should be a citizen of India above the age of 18 years.

According to the manual, though there is no standard and uniform document throughout the country to determine citizenship, the NRC, wherever it exists, could be referred to by the Electoral Registration Officer, while inquiring about the citizenship of the person concerned. This allows for the possibility of a number of D-voters being present on the electoral rolls of the State.

Although the disaggregated data of the updated NRC for different age groups are not available, the excluded applicants include a sizeable number of electors, some of whom were tagged as D-voters in the past as their cases are pending before the FTs. Assam has about 1.2 lakh D-voters. D-Voters could file NRC applications, but their names and the names of their descendants are excluded until cleared by the respective FTs. In 1997, the ECI ordered tagging the letter “D” before the names of those voters in Assam who, the Commission alleged, failed to prove their citizenship.

The ECI orders special summary revision of electoral rolls in September/October every year with reference to January 1 of the next year as the qualifying date.

While updation of the NRC process in Assam indicates the complexities in the determination of the citizenship, it also shows how the Assam Accord has become an aid to granting citizenship to scores of migrant families, Hindus and Muslims, from erstwhile East Pakistan.

The government will be under pressure to defend the need for a separate cut-off date for the NRC in Assam in accordance with the Assam Accord when the Constitution Bench considers the petitions challenging Sections 6A and 3. The orders of the Constitution Bench will have legal ramifications on the entire NRC exercise and the final list. The narrative pushed by the BJP and rest of the the Sangh Parivar is that “illegal Bangladeshi Muslims have been able to get their names included in the updated register with forged documents while the NRC officials refused to accept refugee registration certificates of many pre-1971 Hindu Bengali migrant families”.

The Modi government, however, claimed in the official statement that “it is a non-discriminatory process, which leaves no room for bias and injustice. As can be seen from the application form for data entry in NRC, there was no column in the application asking for the religion of the applicant.”

Demographic break-up

Specific demographic break-up of excluded NRC applicants into religious and linguistic groups dominating the discourse is based on perceptions derived from examples and stories of many individual families as disaggregating NRC data on religion and language is not possible: no such demographic information was collected from NRC applicants.

However, a large number of applicants belonging to immigrant families of erstwhile East Bengal and erstwhile East Pakistan origin tell stories about the NRC process splitting families by excluding members of the same families from the complete draft or the final list, and this has attracted national and global media attention. It raises questions about the NRC process being discriminatory and targeting families of religious and linguistic minorities of East Bengal origin. The structural problems in document-based identification of people with complex migration histories explain the deficiencies in the NRC process.

However, a consensus to update the NRC in Assam was reached to put an end to the harassment of migrant families in the name of identification of illegal Bangladeshi migrants while addressing the apprehension of the indigenous population that it was losing its culture and identity owing to the unabated migration from across the India-Bangladesh border.

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