Post-Independence, the Government was in no hurry to address the influx issue. Only in 1957, section 2 (a) of the Foreigners Act, 1946 was amended to define a foreigner as “a person who is not a citizen of India”. As stated in the “White Paper on Foreigners Issue” published by the Government of Assam on October 20, 2012, “The provisions and rules made under Foreigners Act, 1946 prior to the above amendment were not applicable to the citizens of Pakistan. As such they were not required to get themselves registered with the registration officer of the district which they visited.” Only after the amendment, did the Government of India in March 1957 issue instructions to all state governments to deport Pakistani nationals staying in India without sanction.
Despite the absence of any law to identify or deport immigrants from East Pakistan, during the census of 1951, a National Register of Citizens (NRC) was prepared by copying out in registers the census documents. Apart from name of the individual’s father or husband, nationality, sex, age, means of livelihood, the 1951 NRC reflected the houses or holdings in a serial order mentioning the number and names of persons staying therein. According to the white paper, “These NRC registers were initially kept in the offices of DCs and SDOs but were later transferred to the Police in the early 1960s for facilitating verification of infiltrants/illegal immigrants.”
Apart from the somewhat cumbersome legal procedures that followed in the identification of the illegal immigrants, the government did not show any strong intent to speed up the process. It directed Superintendents of Police not to detain persons who were checked at railway stations to ensure that such suspects do not miss their trains. Instead, according to the white paper, if the person was suspected to be a Pakistani, “he was to be questioned and followed or information sent to where he was proceeding so that a track is kept on him and future inquiries can be pursued …”
The prospect of following suspected illegal immigrants on trains and through forests and river banks to keep track of them sounds extremely ambitious even for highly trained policepersons. Entrusting such a task to the Assam Police in the 1960s was a surrender to the challenge of identifying illegal immigrants. A project pertaining to the setting up of barbed wire fences in January 1965 had to be called off “owing to shortage of barbed wire”.
Assam Agitation and a special set of laws:
A 12 hour strike called by All Assam Students Union for “detection, disenfranchisement and deportation” of foreigners, following an allegation that a large number of foreigners were included in the voters’ list before a bye-election for the Mangaldoi Lok Sabha Constituency in 1979 led to the outbreak of what came to be known as the Assam Agitation against foreigners. After several rounds of negotiations between the student leaders and the Central Government, the Assam Accord was signed in 1985.
While the Accord settled March 24, 1971 (the day that the Pakistan Army commenced its brutal crackdown at the Dhaka University) as the cut-off date for identification and deportation of immigrants from East Pakistan into Assam, it also provided citizenship to those who came to Assam between January 1, 1966 and March 24, 1971 after de-franchising them for a period of ten years subject to registration. The Accord was celebrated as a major victory and again infused great hope. Student leaders took charge of the destiny of a state which believed its century old immigration crisis would soon be over.
Amendments were made in the Citizenship Act, 1955 to recognise the cut off dates settled in the Accord. Illegal Migrants (Determination by Tribunals) Act, 1983 was passed. Illegal Migrants Determination Tribunals (IMDT) under the said Act took up cases of suspected foreigners who came after March 25, 1971, the existing Foreigners Tribunals under the Foreigners Act, 1946 took up cases of those immigrants who came before March 25, 1971. The Supreme Court struck down the IMDT Act, 1983 as unconstitutional in 2005 pursuant to which the 21 IMDTs were wound up and replaced by 21 new Foreigners Tribunals.
On December 10, 2003 the Central Government introduced the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003. Rule 4A provides for Special Provisions as to the National Register of Indian Citizens in State of Assam and the manner of preparation of such register is provided under the Schedule to the rules.
Under the supervision of the Supreme Court of India, a monumental effort is underway to finalise the NRC in Assam. This endeavour by a state to identify its citizens may be unprecedented, both in terms of its scale and the means of verification. The exercise is being done by approximately 40,000 State Government functionaries and outsourced data entry operators.
A part draft list was published on December 31, 2017 which included the names of 1.89 crores out of the 3.29 crores applicants. A complete draft list was published on July 30, 2018 which included the names of 2,89,83,677 persons. 40,70,707 persons were not found eligible for inclusion out of which 37,59,630 names were rejected and 2,48,077 were kept on hold. About two lakhs objections and 36.2 lakhs claims were filed by December 31, 2018. After intimating those who had been excluded, a notice period of 15 days was given before the date of hearing to each claimant. An exclusion list was published on June 26, 2019 which further excluded the names of 1,02,462 persons.
The Supreme Court has been very firm about publication of the final NRC on July 31, 2019. It even refused the Centre’s request to suspend the work relating to NRC during the Lok Sabha elections and directed that an adequate number of state government officials be kept free for NRC work.
Before publishing the draft NRC, it was verified whether the applicants had genuine documents to establish their linkage to the LDC (Legacy Data Code) given to a member of the family whose name appeared in the NRC of 1951 or the electoral roll prior to 1971. Interestingly, at the stage of the hearing of the claims/objections, it appears that the names of people actually linked to the LDC were left out because the LDCs were also used by persons not related to the LDC holder. This round of verification was done in the presence of members of both families claiming the same LDC. This necessitated the exclusion list.
By way of an order dated October 23, 2018, the Supreme Court directed the Coordinator, Prateek Hajela to give a power point presentation to the officials of the state government and the Union of India in the presence of the Solicitor General of India or his representative and Kapil Sibal, the representative of all other stake holders, of the manner in which the manual and the computer family tree were prepared for the purposes of deciding on the inclusion of names in the draft NRC.
In another order of November 1, 2018, the court considered Hajela’s objections on the admissibility of the following documents in the claims for inclusion in the NRC: i) Names in NRC, 1951; ii) Names in Electoral Roll upto 24thMarch, 1971; iii) Citizenship Certificate and Refugee Registration Certificate; iv) Certified copies of pre-1971 Electoral Roll, particularly those issued from the State of Tripura; and v) Ration Card.
While allowing the claimants to rely upon these documents the court observed that the objections were based on the mere possibility of abuse and insisted that a vigorous process of verification be undertaken with multiple layers. The Supreme Court also approved a standard operating procedure (SOP) filed by the Ministry of Home Affairs.
Whereas Clause 8 of the Schedule to the Citizenship Rules, 2003 gives a right to prefer an appeal to “any person, not satisfied with the outcome of the decisions of the claims and objections …”, the Supreme Court in Abdul Kuddus vs Union of India, recently, has held that if the foreigners tribunal has already declared an individual as a foreigner, such a person cannot avail his right of appeal but can invoke the writ jurisdiction of the High Court. It remains to be seen how this extremely important provision will be construed by courts once challenges are preferred by aggrieved persons for their non-inclusion in the final NRC.
While the attempts in the past focussed on identifying and detaining the immigrants, the focus now has shifted to the identification of genuine citizens through a multi-layered verification process. Those excluded would have their remedy of approaching the Foreigners Tribunals in an appeal under Clause 8 of the Schedule to the Citizenship Rules, 2003 and/or the high court or Supreme Court in writ or review or appellate jurisdiction. The Ministry of Home Affairs has proposed to set up 1000 foreigners tribunal by the time the final NRC is published and by way of an amendment to the Foreigners Order, 1964, even district magistrates are now empowered to refer cases of suspected foreigners to the tribunals.
The death of a 40 day old baby in Barpeta when the mother came to attend a hearing related to a claim filed by her sister, the detention of an army veteran who was declared a foreigner by the Tribunal, the exclusion from the draft NRC of the name of a Sahitya Academy awardee and family members of a woman who participated and lost her life in the Assam Agitation are some of the many unfortunate instances which confirm that NRC has taken and will take its toll in myriad ways. Assam, on its part, would do well to remind itself about the past, a past that holds out lessons for the future and also the signs of a recurrent nightmare. A strange path this is where one moves forward only to regress.
Abir Phukan is a Delhi-based advocate practising in the Supreme Court of India