Even as Justices Gogoi and Nariman pull up court-appointed officials, constitutional questions on NRC cannot be ignored

[dropcap]T[/dropcap]he urgent hearing on the National Register of Citizens, Assam matter, convened suo motu by the Supreme Court bench of Justices Ranjan Gogoi and Rohinton F Nariman, has seen strong words used in the court on August 7, 2018. The bench chastised the State Coordinator of NRC, Prateek Hajela, and the Registrar General of India, Shailesh, for speaking to the press when they were appointed by the top court to prepare an "error free NRC". Justice Gogoi even quipped whether the duo should be held in "contempt of court" and "sent to jail", though the Bench refrained from acting on this, pointing towards the narrative and bureaucratic chaos that the NRC has resulted in.

Justice Gogoi reprimanded Hajela, saying: "You have said that so far a document once chosen could not be changed but at the time of hearing the claims and objections, fresh documents will be allowed (from persons who have been excluded in the draft NRC to present their credentials)? On the one hand, we are waiting for the modalities (as to the standard operating procedure for dealing with the claims and objections), and on the other, our own officer goes and says that at the stage of addressing the claims and objections, fresh documents will be accepted?"

Even as the Justices chided the officials for issuing statements to the press that were out of line, and "highly improper", "touching upon matters which should have formed the basis of orders to be passed by the court", the fact of the matter is the second draft of the NRC released on July 30 has opened a Pandora's Box of uncertainties and communalisation of the bureaucratic exercise, leading to much anxiety among those affected, as well as every concerned citizen of the country.

Backstory

The National Registry of Citizens, a document recording the Citizens of India for the State of Assam was prepared in the year 1951. The latest updated version of the NRC was published on the July 30, 2018 leaving out over four million people in the state desperate to get their names listed. The questions pertaining to the credibility of the registry pertain to the fact that the evidence required for a person to be listed in the registry is a hoard of documents providing proof of ancestry. Problems stem from the fact that these documents must date back to the years 1971 and before where documentation in India did not possess modern day facilities.

Those who did not find their names in the latest list have to now apply to be registered again going through the same tedious process of providing documentary evidence. The most affected by this process, as many point out, are married women — especially those married away as children. Illiteracy coupled with child marriage and moving away to the husband's place of residence is a major hindrance for these women to prove citizenship. The link certificate provided by village panchayats, act for some as the sole document establishing link with one's ancestry. But this is only taken as supplementary evidence requiring submission of other documents such as proof of father's name in voter's list prepared prior to 1971. Now establishing this link has been tough for a number of women. Often there has been a change in the name of their ancestors across different periods of time in the electoral rolls itself. There are differences in names amongst documents where the father's name in the birth certificate or the Ration card is different from the electoral roll. All these have left several married women out of the list even though their husband's and other family members have made it to the list.

Constitutional validity

Article 14 if the Indian Constitution enshrines the principle of equality. The question here is then, why is there a classification amongst citizens of the country where some have to make it to the National Registry of Citizenship where the onus of proving one's citizenship is on the person who although is a citizen of country as per the constitution, yet has to show evidence to make it to the registry. This means that the system of having a NRC applicable to citizens in one state alone goes against the principle of equality enshrined in the constitution.

Lack of representation as barricade to attain citizenship

Those who have been left out currently need to reapply and there are cases still pending before the foreigner's tribunal. A major barrier for those reapplying is the lack of adequate representation. There is no recourse to legal aid for those who are in a dire need to prove the inconsistency in documentation. The illiterate poor face a huge problem in convincing the authorities that such discrepancies are a result of an error in documentation. Moreover the cases in the tribunals also suffer from similar issues. There is an added problem of both the tribunal and the registry requiring a variety of documents to be submitted and the discrepancy being strictly penalised.

Separation of families

The Citizenship Act 1950 places the cut off period to attain a citizenship by birth without either parent having to be of Indian origin at 1987. Sec 3 of the Citizenship Act which deals with citizenship by birth provides for this cut off date as follows,

"3. Citizenship by birth.―(1) Except as provided in sub-section (2), every person born in

India―

(a) on or after the 26th day of January, 1950, but before the 1st day of July, 1987;

(b) on or after the 1st day of July, 1987, but before the commencement of the Citizenship

(Amendment) Act, 2003 (6 of 2004) and either of whose parents is a citizen of India at the time of his birth;

(c) on or after the commencement of the Citizenship (Amendment) Act, 2003 (6 of 2004),

where―

(i) both of his parents are citizens of India; or

(ii) one of whose parents is a citizen of India and the other is not an illegal migrant at the time of his birth,shall be a citizen of India by birth.."

The problem here is that those children born to "illegal migrants" between 1971 to 1987 will be considered citizens whereas the parents of such children will have to be sent out of the country. Section 3 unlike Sections 5 and 6, where illegal migrants are explicitly excluded, does not contain any such exceptions. Section 6A of the Citizenship Act does not discuss the status of such children born to illegal migrants between the years 1971 to 1987. Families in this case would be forced to separate from each other. Once, given the present case, if the onus of proving one's citizenship by providing adequate documentation is in place, where people now have to make it to the NRC whose documentation proof requires these citizens to prove ancestry dating to prior to 1971, these members might be left out of the list as well.

 Aftermath

It is not clear as to the position of those who do not make to the NRC as India is yet to find a way to deport them. There have been no bilateral talks entered into by India and Bangladesh with respect to the same. This question has been looming large with respect to the people in detention camps.

Harsh Mander's report for the National Human Rights Commission highlights this issue and the fact that detainees in these camps are of the view that they will remain in these camps forever. This raises many questions as to where will the people who do not make it to the national registry be placed. Will detention camps be made for the "illegal migrants" and in this case where will they be placed? In his report, Harsh Mander remarks that most of these detention camps are prisons converted into detention centres which is against international law. Moreover, where will four million people be placed even if these detention camps are for temporary placement until they are deported from the country. The temporary nature of these camps itself is questionable as this depends on Bangladesh's willingness to take them in. If these camps turn out to be permanent, then violence is set to follow as history of the agitations in Assam against "illegal migrants" show us. Then one can think now as many have been suggesting that this would become a crisis similar to that of the Rohingya crisis. Here the state is the prosecutor as the registry evicting "illegal migrants" only from the state of Assam and no other state is being backed by the state itself. Violence that may follow given the question of deportment of those who do not find their name on the register would be legitimised as it will only be considered as violence against "illegal migrants" who do not have a place to go to but who still have to leave as they no more can stay in India legally.