It has been a closely court-monitored process since 2009, even after the register began in right earnest from 2013. On August 31, 2019, under this watchful gaze, the final list of the National Register of Citizens (NRC) has been published. What lies ahead for the 19,06,657 persons excluded?
About 370,000 of the total number of those who did not make it, did not actually apply for inclusion. They are likely to be the Hindi speaking migrants into the state from other parts of India. It will be approximately 15 lakh cases, therefore, that are likely to head towards judicious determination at the foreigners tribunals.
At a recent hearing on July 23, 2019, the court-monitored process was thrown open to groups working on the ground, for “suggestions”. The court, in its wisdom, did not interfere with a flawed conclusion arrived at by the NRC coordinator, Prateek Hajela, when he suggested the exclusions of countless persons born in India prior to June 30, 1987, on the ground that one parent of such person is either a “doubtful voter (DV)”, or a “declared foreigner (DF)”, or a “person whose claim for citizenship is pending before a Foreigners Tribunal (PFT)”.
This appears violative of Section 3(1)(a) of the Indian Citizenship Act, 1955. The section mandates that every person born in India between Republic Day 1950 and June 30, 1987, shall be a citizen of India by birth. Yet, the coordinator, and thereafter, even the Supreme Court decreed that it would “exclude” such persons despite the existence of Section 3. This order was passed by the Supreme Court on August 13 and the final say on the matter lies with the Constitution Bench.
Initial reports suggest that among 40-60 per cent of those excluded include those from the above-mentioned category.
Appeals
Appeals of all those excluded will now have to be filed in the stipulated 120 days before the tribunals.
To file such an appeal, each person will need to access a certified copy of the exclusion order and list of documents submitted by her or him to the NRC Seva Kendra. Will the deadline of 120 days start ticking after these documents are accessed as is just and fair? Clarifications are awaited.
Details of the modalities and nitty-gritty of filing the appeals are also due. Of particular concern will be the issue of areas of jurisdiction and where a victim of exclusion will have to go, which district of jurisdiction and to which foreigner tribunal to file her or his appeal.
Through the NRC process, and the claims and corrections process, marginalised and unlettered sections of the population have been subjected to inhuman procedural hassles, not least being sent to the Seva Kendras, sometimes 200-400 kilometres away! It took repeated complaints to the Supreme Court to get this issue somewhat clarified through an order of April 10, 2019. However, even during the “re-verification process”, this torture continued.
Legitimate claims filed by sections of the linguistic minority (Bengali Hindus who are refugees from the erstwhile East Pakistan) have also suffered deeply due to this politicisation of the NRC process: while they possess their own Refugee Certificate(s) and the Refugee Inmate Certificates, the “back-end” records of these are unavailable (how can they be when the camps after the 1971 war don’t exist?). The NRC process on the ground has deliberately not accepted these valid documents even though they had been permitted by the Supreme Court.
Discussions are rife in Assam about how de-centralised the locations of the foreigners tribunals will be, given the vast distances in the state. Already, the state government is trying to overtly centralise the process by locating these tribunals in “six zonal areas” of the state. All these logistical issues will remain crucial in the accessibility to justice for all those excluded.
Background
The background to this humanitarian crisis is complex. In Assam, there has been, apart from the NRC process, the “D” voter process initiated by the Election Commission of India in the mid-1990s. In 1997, more than 3 lakh people were marked as “doubtful voters” overnight, without any prior investigation. (This is violative of judgments of both the Supreme Court of India and Guwahati High Court. Fair investigation is emphasised as a pre-requisite for anyone being served such a notice).
Some more “D Voters” were added in later years. Some have subsequently been able to prove their citizenship, others not. However, many people marked as “doubtful voters” are still disenfranchised and have, to date, not received any notice from the foreigners tribunal to prove their citizenship. The children of such persons, following the Supreme Court order of August 13, 2019, have now been excluded from the final NRC list.
What next?
As stipulated under the process, all those excluded from the NRC list have to appear before the foreigners tribunals. These tribunals have already been in existence, dealing with those cases of persons declared “D” voters (by the Election Commission) or those “referral cases by the Assam Border Police” who are “suspected foreigners”.
On July 19, 2019, in reply to an un-starred question, the minister of state of home affairs stated on the floor of Parliament that up to 31 March this year, 1.17 lakh people have been declared foreigners by the tribunal; 63,959 people have been declared foreigners by an ex parte order. Those who contested the case claimed themselves to be Indian and declared foreigners because of minor anomalies or variations in names, age and place of residence in documents. Any contradictory statement or not proving documents as per evidence law could cost them their citizenship.
Given the high human stakes involved and the balance of power against the marginalised and unlettered, it is crucial that these tribunals function transparently, following acceptable and standardised processes of allowing appeals and evidence, precluding existing complaints of sheer arbitrariness in their dealings.
Open, fair and judicious trial is the fundamental guarantor of every citizen living under the rule of law, apart from being a fundamental right guaranteed under Article 21 of the Constitution.
India’s claim to these fundamentals will once again be put to test in every case before the foreigners tribunals, given that citizenship is the very basic of rights and to be arbitrarily being declared “non-Indian” is akin to a “civil death”.
Deportation question
In July this year, when we compiled a list of citizenship and NRC-related deaths in Assam, we found over 60 people who had lost their lives and whose deaths are connected to citizenship-related issues.
On the morning of August 31 itself, Sayera Begum jumped into a well long before the NRC final list was published, just on a rumour that she may not have made it to the list. Tragically, her family found that her name was actually included. While some of the others have allegedly committed suicide due to frustration, anxiety and helplessness related to the National Register of Citizens (NRC), some reportedly took their own lives fearing the deadly detention camps.
Although those excluded from the final NRC will not be detained immediately, the sword of Damocles of detention or deportation will be an ever-present peril. Once declared as “foreigner” by a tribunal — whose functioning(s) have hitherto raised eyebrows — he or she may be detained in such camps with an intent to deport.
There are already around 1,100 detainees in six detention centres — with poor conditions — across Assam. As of now, Assam has six detention camps. These operate out of makeshift facilities in prison compounds located in Goalpara, Kokrajhar, Silchar, Jorhat, Tezpur and Dibrugarh. There are also reports that new facilities have been planned in other parts of the state.
The government has admitted to 25 deaths within these camps between 2013 and now. Only last year, on May 10, 2018, the Supreme Court had directed the release of those who have completed more than three years in detention. While this order has rightly put an end to indefinite detention, questions around the initial three years of arbitrary confinement remain.
On the contentious deportation issue too, there is little clarity. The state of Assam in its affidavit before the Supreme Court, filed in February 2019, admitted to only four declared foreigners being deported since 2013! On a recent visit to Dhaka, external affairs minister S. Jaishankar had even said that the NRC was India’s internal problem. To date, India has not spoken to Bangladesh about deporting “declared foreigners”.
Under these unclear political circumstances, will the option be indefinite detention? A person declared “foreigner” has of course the right to appeal to the higher courts, also an onerous and resource-consuming process. Detained, she or he is denied a dignified life and also a dignified death.
What is urgently needed is some clarity and commitment on the status of such persons who will be compelled to undergo a legal process, not just at the initial stage, in the foreigners tribunal but through their appeals in subsequent appellate forums like the high court and the Supreme Court, something that could take a decade.
Will the state ensure their basic rights remain intact until then? Will political expediency not snatch these away as the media glare dies down?
The spectre of statelessness is what haunts the populace. Denied the right to a nationality by a state, stateless persons are particularly vulnerable to abuse. We have seen this with the Rohingya.
India has not signed either of the international proclamations that bind the signatory country to established norms: the 1954 Convention on Status of Stateless Persons nor the 1961 Convention on the Reduction of Statelessness.
However, as judgments of the higher courts have so far asserted, Articles 14 and 21 of the Constitution apply to both citizens and non-citizens in India.
Two judgements are worthy of mention. In NHRC vs. State of Arunachal Pradesh, 1996, the Supreme Court has held that rights under Article 21 are as much available to non-citizens as to citizens, and to those whose citizenship is unknown. In 1981, in Francis Coralie vs The Admn, Union Territory of Delhi, the Supreme Court has held that it is the fundamental right of everyone in this country to live with human dignity, free from exploitation.
Our constitutional foundations and the fundamental freedoms guaranteed under Article 14 and 21 should be the guiding principles to mitigate the NRC and citizenship-related crisis affecting Assam, hereafter. The institutions created and the measures put in place to redress grievances of the 15 lakh-plus excluded must pass this litmus test.
Turmoil, trauma and vicious targeting have dogged an otherwise consensual process for over four years in the state while the wounds have festered for decades. It is time to ensure that the process forward is constructive and it provides some healing.
The writer is secretary, Citizens for Justice and Peace. For the past two years, the CJP, along with senior members of the Assamese civil society, has been assisting genuine Indian citizens to access the bureaucracy and the courts
