[dropcap]T[/dropcap]hings stand balanced on a knife's edge in Assam, where the preparations for the final National Register of Citizens (NRC) have reached a critical stage. The Registrar General of India has published three draft lists, as on July 30, 2018. Nearly 4.7 crore persons have been included in the first drafts and as many as 40 lakh persons have been left out. The Court has already clarified that no immediate adverse steps, including deportation, are to be taken in the near future until all the claims are conclusively decided. The process is currently at the claims/objections stage and the Supreme Court has alternated between the classic "good cop, bad cop" routine – with plenty of drama unfolding since the institution of proceedings in 2009.
Recently, the apex court reprimanded the NRC co-ordinators for issuing press statements regarding the modalities of the NRC preparation. In fact, in December 2017, the Court had adjudicated on the interpretation of the term "original inhabitants" of Assam as provided under the Citizenship Rules 2003.
The overarching challenge to Section 6A of the Citizenship Act, 1955 itself is currently pending adjudication before a five-judge Constitution Bench. This challenge, raising a total 13 questions for adjudication, is in fact striking at the root of the Assam Accord 1985. The policy prerogative of the Union Government to either grant or withdraw citizenship to any class of persons will inevitably come under the scanner. The stand of the Union will have to shift from mere electoral rhetoric and be subjected to the constitutional test.
As expected, the politics being played out in Assam by the ruling dispensation in both the Union and State governments has disrupted the communal harmony in the state. Brownie points are being scored by members of right-wing parties; which has on one instance, warranted the intervention of the Supreme Court. Even the State of Tripura has jumped into the melee after the Supreme Court issued notice on a petition to include the State within the NRC exercise.
Contemporary politics is often steeped in the rich history and heritage of the region. A closer look at Assam's "struggles with immigration", beginning from the pre-colonial times, reveals how xenophobia set into the political discourse over the years.
In fact, the mere usage of the word "Assamese" invites a flurry of comments and the term itself amounts to an oversimplification of what is a complex issue. In what is essentially an "Us vs. Them" narrative, minorities in the State have been oppressed over decades. The colonial legacy of "divide and rule" had in the yesteryears exploited this schism. There continued to be free movement across the Assam border even after the 1947 Partition. However, after the 1950s, continued persecution in the erstwhile East Pakistan caused an influx of immigrants into the State of Assam through its porous borders.
Identifying the issue of undocumented immigrants into the State, the first National Register for Citizens was prepared in 1951. The uniqueness of the exercise was that a separate NRC register for the State of Assam was being prepared before an All-India NRC could be prepared. This All-India NRC exercise has not been completed till date, since the enormity of the task demands focused and concerted effort from concerned agencies. Allocation of massive amount of manpower and finances is necessary to meet the scale of the exercise and for now remains in cold storage.
Since 1951, several communal riots had occurred in Assam, with the primary targets being minority communities, who formed a substantial chunk of the immigrant population. The groundswell of resentment and bitterness against the immigrants gathered momentum over the years and reached its climax during the Bangladesh War of Liberation in 1971. Spearheaded by student movements prevalent at the time, the All Assam Students Union (AASU) emerged as the primary political force. AASU remained the main player involved in the negotiations with the Union of India, which finally culminated in the coming into force of the Assam Accord in 1985.
The Union Legislature acted immediately to enforce the Assam Accord and inserted Section 6A in the Citizenship Act, 1955 for the first time specifying persons to whom citizenship would be granted if:
This Section is currently under challenge and pending adjudication before a five-judge Constitution Bench.
Special provisions regarding the preparation of NRC in Assam were enacted by the Parliament in 2003, when the Citizenship (Registration of Citizens and Issue of national Identity Cards) Rules 2003 (Citizenship Rules 2003), came into force and was thereafter amended in 2009. As it would turn out, the skeleton of the modalities in the Standard Operating Procedure (SOP) was set out. The Supreme Court breathed life and filled out the flesh and blood by passing orders in the batch of writ petitions led by Assam Public Works.
12 prescribed documents (10 primary and two supporting documents) crucial to proving one's citizenship and ancestral lineage have been used for deciding citizenship claims. Interestingly, a challenge was made to one of these documents, being the "Link Certificate" in Gauhati High Court. The Link Certificate is a document issued by the Gram Panchayat and Revenue Officials possessed by women marrying outside of their parental village. The Supreme Court has already observed that while this document is not determinative of the citizenship of the applicant, but it can be used as a "link between the holder and the person from whom the legacy is claimed".
As it stands, the following documents can be furnished by applicants to prove their citizenship if they have been excluded from the NRC:
iii. Passport issued up to March 24, 1971
vii. Bank/Post Office Accounts of relevant period i.e. up to March 24, 1971
viii. Birth Certificates issued by the competent authority up to March 24, 1971
Five more documents including NRC 1951 Register, Electoral Rolls from 1951 to 1971, Ration Cards, Certified copy of Electoral Rolls pre-1971 and Citizenship Certificates etc. have been sought to be included as documents of proof in the claim/objection stage. However, the NRC co-ordinator has on October 23 tendered the objections to the inclusion of these five documents and the Supreme Court had then granted time till October 30, 2018 for all replies to be filed by stakeholders including AASU, Jamat-i-Ulema Hind, State of Assam etc.
The next hearing is to take place tomorrow — November 1, 2018 — with directions to Prateek Hajela, the NRC co-ordinator, to conduct a power-point presentation for the stakeholders (including the Government of India) before the next date; for explaining the mechanisms behind the manual and computer-made family trees used for inclusion of names in the NRC.
No system is fool-proof and availability of documentation with bona-fide citizens can still be a big hurdle. However, the problem of documentation is intertwined with the issue of identity as "Assamese", as perceived in the State. More often than not, minorities with rightful claims of citizenship have been excluded in the draft lists and now are being unfairly branded as immigrants. Right-wing elements are, meanwhile, spreading hate and the society is being influenced by the xenophobic political discourse in the State. Irresponsible and crude press statements made by elected representatives are fanning the bitterness in the region. Deployment of the military in the region accompanied by curfews has been shrouding the area in a palpable tension. Nearly 40 lakh persons stand at the cusp of statelessness.
India's track record with refugees and stateless persons has so far remained unblemished, with the glowing references to India's treatment of Tibetan refugees still to the country's credit. Post 2014, however, a clear shift in policy by the Union Government led by Prime Minister Narendra Modi of the BJP, doesn't augur well for immigrants from minority communities (as they would be in India) fleeing persecution and violence from neighbouring countries.
Take the instance of Rohingya refugees, who are fast running out of places to hide. The Supreme Court recently allowed deportation of seven Rohingya refugees back to Myanmar being in possible breach of non-refoulement obligations of India under customary international law. Border fencing also remains an incomplete task and despite all measures being taken by the Government for completion of the matter, at the ground level, illegal immigration remains a difficult proposition to address.
Hope springs eternal, and if the constitutional philosophy prevails at the end, then that will be a victory for justice. The Indian Government must actively protect the fundamental rights of non-citizens and ensure that the "procedure prescribed by law" under Article 21 is followed in letter and spirit. For the time being, faith and trust must be reposed by the claimants on the Supreme Court to ensure that justice does not become consigned to becoming an unattainable ideal.
[Rohit Ghosh is an advocate practising in the Supreme Court of India.]