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| @ | September 2,2019

[dropcap]O[/dropcap]N Saturday, August 31 morning, the final list of National Register of Citizens (NRC) in Assam was released. A total of 3,11,21,004 persons were found eligible for inclusion in the final NRC list whereas 19,06,657 persons including those who reportedly did not submit claims, were left out.

In simper terms, of about 3.3 crore applicants, more than 95 percent people were found to be eligible for inclusion in the NRC. On the other hand, only 5 percent were found ineligible, subject of course to appeals before the Foreigners’ Tribunals. This figure is abysmally low as compared to the claims of millions of illegal immigrants in Assam from Bangladesh, being propagated by political parties over the years.

 

 

Nevertheless, the present exercise has been conducted intensely over 4 long years and under the constant supervision by a special bench of the Supreme Court headed by the Chief Justice of India along with constant objections and suggestions by the stakeholders before the court, including the prominent organizations that led the Assam Agitation.

With the publication of the complete NRC, many pertinent questions are bound to crop up. Foremost is the question of the claims made over the years by the ruling party and its political allies about there being up to one crore illegal migrants in the State of Assam.

This vicious campaign was so oft-repeated that the entire body politics of the country started believing this perception that there are a large number of so called foreigners in the state of Assam. This perception was further crystallized in the year 2005 by the judgment of the Supreme Court in Sarbananda Sonowal Vs. Union of India. The judgment in 2005 was based, inter alia, on a 1998 report sent by then Governor of Assam to then President of India, not only stating that there is a serious influx of immigrants in the State of Assam but also that these immigrants mostly belong to one community i.e., Bengali Muslims. The precipitation of this narrative into a judicial verdict in a manner gave further credibility to claims of a large scale illegal migration in the State of Assam. The judgment not only gave credibility to unassessed apprehensions but also formed the basis of subsequent judgments touching upon the fate of millions in Assam.

 

The Beginning

 

Since the creation of Bangladesh in 1971, there had been a demand in the State of Assam to identify those who had come after 1971 leading up to the violent Assam Agitation that could be pacified only in 1985. This was achieved by a Memorandum of Settlement, popularly known as the Assam Accord, being signed between the leaders of the Assam Agitation including All Assam Students Union and All Assam GanaSangramParishadand the Central Government in the presence of the Late Prime Minister Mr. Rajiv Gandhi.

This Accord led to the amendment of the Citizenship Act, 1955 and addition of Section 6A therein providing for special provisions for Assam. It was decided that the base date for purposes of detection and deletion of foreigners shall be 1st January 1966  and while persons who had come to Assam between 1st January 1966 and 24th March 1971 shall be detected and regularized after a period of 10 years, those who had come to Assam after the midnight of 24th-25th March 1971 shall continue to be detected and deleted from the electoral rolls and that practical steps shall be taken to expel such foreigners.

Apart from detection and deletion of foreigners, the memorandum of 1985 also provided for issue of Citizenship Cards, for intensive patrolling of border areas with Bangladesh, border fencing and laws restricting acquisition of immovable property by foreigners in Assam. With the signing of the Accord, peace returned to Assam as all stakeholders moved ahead in nation building.

 

Sarbonanda Sonowal vs. Union of India [2005]

 

In 2000, an activist by the name Shri Sarbonanda Sonowal, approached the Supreme Court challenging the constitutional validity of the Illegal Migrants (Determination by Tribunals) Act, 1983. He claimed that this Act is a roadblock in detection and deletion of foreigners. Initially the stand of the petitioner was supported by the State of Assam which was being governed by the AAGSP government, however, after the 2001 elections Congress established its government in Assam and subsequently the stance of the State Government also changed before the Supreme Court. However, the Supreme Court agreed with Sarbonanda Sonowal and struck down the 1983 legislation as being unconstitutional in 2005. Sonowal would later become the Chief Minister of the State.

It is very important to know that while arriving at this conclusion, the Court heavily relied upon a report sent by the Governor of Assam to the President of India. This was a report sent in 1998 by then Governor of Assam  Lt. Gen. S.K. Sinha (Retired) stating unabashedly that there is an unabated influx of illegal migrants from Bangladesh into Assam which threatens to reduce the Assamese people to a minority in their own State. The report further stated that Muslim population in Assam has shown a rise of 77.42 per cent in 1991 from what it was in 1971.

Based on population records and not accounting for a number of reasons such as migrations between districts due to floods, the report assumed that the rise of Muslim population must mean that there is a large scale migration from Bangladesh. In Para 22 of the report it stated that no misconceived and mistaken notions of secularism should be allowed to come in the way of addressing the dangerous consequences of large scale migration.

The Supreme Court in its judgment did not only stop at striking down the legislation, it went further in stating that there can be no manner of doubt that the State of Assam is facing “external aggression and internal disturbance” on account of large scale illegal migration of Bangladeshi nationals.

The 2005 verdict became the bedrock for all future references in judicial as well as political world with regard to the so called infiltration in Assam. The judgment immediately resulted in striking down of the IMDT Act and called for all references being sent to Foreigners Tribunals to be decided as per Foreigners (Tribunals) Order, 1964 thus taking away the cover provided to a suspect foreigner.

Needless to say that this judgment also formed the basis for deciding a number of issuesin relation to Assam and NRC since then, most recently in the 2019 judgment in Abdul Kuddus vs. Union of India, when relying upon the 2005 verdict, the Court denied any right of appeal from the decisions of the Foreigners Tribunals. The same threats of influx of illegal immigrants, relying heavily on the Sonowal verdict were also found in the 2014 judgment of the Supreme Court, in a batch of petitions concerning constitutional validity of Section 6A of the Citizenship Act, 1955.

 

Present Updation

 

The present NRC in Assam was initiated in 2014 on orders from a Special Bench of the Supreme Court in a batch of petitions that were filed seeking updation of the Register. The modalities and the standard operating procedure for preparation and updation of NRC in the state of Assam were prepared after a series of discussions with the government and several other stakeholders. Applications for registration in NRC were last received by August 31, 2015 and the State Coordinator began the process of scrutinizing and verifying applications under the constant supervision and monitoring by the Supreme Court. During this process,persistent objections and suggestions were placed before the Court by all stakeholders and surprisingly also by the State of Assam and Union of India. The exercise was conducted on a stringent process of scrutiny which included “Family Tree Verification” and “Legacy Data” in order to leave no doubt about the citizenship of an applicant exclusively on the ground of descent only.

The first draft of the register was published in December 2017, with the complete draft of NRC being published in July 2018 where around 40 Lakh persons were found ineligible for inclusion in draft NRC. Claims for inclusion in NRC and objections against the inclusion of names were both filed after the publication of the final draft. The process of disposal of claims and objections was also finalized by the Supreme Court after considering the views of all the stakeholders at that time. After another year of scrutinizing and verification by the Office of the State Coordinator, NRC-Assam, the present National Register has been published on 31st August 2019 finding more than 3.11 crore of the 3.30 crore applicants eligible as valid Indian citizens. Before the final publication concerns with regard to re-verification of included names was raised by the State of Assam and Union of India. These prayers were considered and found untenable in light of the submission by the State Coordinator that a substantial number of persons have been already re-verified in the course of hearings that took place during the disposal of claims and objections.

 

The Looming Question

 

Now the final NRC has been published, there are already reports emerging of families being included with one or two members excluded, with fathers included and their sons excluded. For all such cases there is yet another opportunity of proving their citizenship, one more round of verification, this time before the Foreigners Tribunals in form of appeals. However, the huge variance in the bald statements of an unabated influx of illegal migrants that have been made for years and years vis-à-vis the numbers that have now emerged after a thorough and strict scrutiny of applications under the supervision of the highest court of the country beg the question as to the validity of the 2005 judgment that relied upon these figures.

With the outcome of the final NRC indicating around 5 percent of population in Assam being not eligible “at present” for inclusion in the National Register, the observations in the 2005 judgment and in subsequent judgments that relied upon Sarbonanda Sonowal judgment are now bound to come under question.

Since the 2005 judgment was based on facts and figures relied by the Court and the present NRC which is itself conducted under the constant supervision of the same court after 2014, the present dichotomy appears to be a classic case where the judgment of conviction is passed even before the investigation was concluded.

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