ISSN 2330-717X

India: Citizenship Conundrum In Assam – Analysis

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By Giriraj Bhattacharjee*

Approximately 31 million people (3,11,21,004), out of the 33 million (3,30,27,661) who had initially submitted their applications in August 2015, have been included in the final National Register for Citizens (NRC) list in Assam published on August 31, 2019. However, approximately 1.9 million (1,906,657 in total) have been left out of the published list.

The ‘first draft’ list was published on December 31, 2017, and it included approximately 19 million persons (1 9,010,932 in total), and excluded 14 million (1,40,16,729). The second list, termed as the ‘complete draft’, was published on July 30, 2018, and included approximately 28 million (2,89, 83,677 in total), leaving out four million (4,043,984) people. On June 26, 2019, an additional draft exclusion list, containing the names of 102,462 persons, was announced.

Meanwhile, according to varying media reports, many local inhabitants including those from the tribal communities in Upper Assam (i.e., Tinsukia, Dibrugarh and Sivasagar Districts) did not apply for NRC as they consider themselves ‘sons and daughters of the soil’ residing in the area for generations. A Dibrugarh based resident, Ananta Sonowal (44), belonging to the Sonowal Kachari tribe, explained his logic to the media, “I felt it was a completely fruitless exercise. We are bhumiputras (sons of the soil). Our surnames are a proof of our identity. The names of indigenous people should have been automatically included in the NRC.”

According to Union Ministry of Home Affairs (UMHA), those excluded can appeal before the Foreigners Tribunal (FT) after receiving the certified copy of the exclusion order along with the list of documents submitted by the individual from the NRC Seva Kendra within 120 days from August 31, 2019. Reports further indicate that the Government will move to the Supreme Court to get a clarification on the 120 days’ period, as the apex Court had directed NRC coordinator Prateek Hajela to secure the NRC data first. Securing NRC data could delay the issue of certified copies of the order. Ministry of External Affairs spokesperson Raveesh Kumar clarified, on September 1, 2019, “It does not make the excluded person ‘Stateless’. It also does not make him or her a ‘foreigner’, within the legal meaning of the term. They will not be deprived of any rights or entitlements which they have enjoyed before.”

Though the final list and the process have many lacunae, the publishing of an updated NRC list marks a milestone with regard to the settling of the 40-years-old vexed ‘foreigners’ question in the State.

The first NRC list in Assam was prepared from the census slips of 1951 and it was an administrative document never made available in the public domain. The need for NRC 1951 arose due to the implementation of Immigrants (Expulsion from Assam) Act, 1950, to check undocumented immigration from East Pakistan to the State of Assam. The rationale for the exercise was given in the ‘Census of India, 1951. Vol. XII Assam, Manipur and Tripura. Part I-A Report’. The then Census Superintendent of Assam, R.B. Vaghaiwalla, in the ‘Salient Features of the 1951 Census’, explained,

“An important innovation of this census was the preparation of a National Register of Citizens in which all important census data was transcribed from the census slips with the exception of census question No 6 (displaced persons), No 8 (bilingualism) and No 13 (indigenous persons)”.

The electoral roll for the 1979 by-election for the Mangaldai Parliamentary seat, which had a large number of ‘foreigners’ residing, was the trigger that progressively turned into a statewide movement to curb illegal immigration from Bangladesh. The six year long (1979-85) violent Assam agitation led to the signing of a Memorandum of Settlement (MoS) popularly known as the Assam Accord between the All Assam State Students Union (AASU), the State’s most influential students’ body, and the Government of India in 1985, which contained various clauses to curb illegal migration.

However, the detection and deportation of suspected foreigners, one of the primary aims of the Assam Accord, could not be fulfilled due to the convoluted process prescribed in the Illegal Migrants (Determination by Tribunals) Act (IMDT) 1984. Under the IMDT Act, a suspected foreigner was to be initially investigated by the Police, following which the case would be referred to a three-judge panel of the tribunal (later reduced to two judge panel). The Act, in fact, became the biggest obstacle to resolving the foreigners issue. On November 8, 1998, the then-Governor of Assam Lt. Gen. (Retd.) S.K. Sinha in his report wrote, ‘…the fact is that on the plea of protecting genuine Indian citizens, the IMDT Act was formulated, but in practice, it has been found to be primarily serving the interests of the illegal migrants.”

On July 12, 2005, the Supreme Court of India declared IMDT as ultra vires of the Constitution and struck it down. The Supreme Court further noted that Assam was facing “external aggression and internal disturbance” on account of the large-scale illegal influx of Bangladeshi migrants, and that it was “the duty of the Union of India to take all measures for protection of the State of Assam from such external aggression and internal disturbance as enjoined in Article 355 of the Constitution…”

In the meantime, AASU signed a tripartite agreement with the State (Assam) and Union Governments on May 5, 2005, which, in many ways, mooted for the updating of the NRC towards the implementation of the Assam Accord. The agreement talked of an NRC ‘within two years’, on the basis of the 1971 electoral rolls. However, the exercise failed to take off. Later, on April 22, 2009, during tripartite discussions between the Central and State Governments, and AASU, the Government promised to initiate NRC updates in two revenue circles – Chaygaon in Kamrup District and Barpeta in Barpeta District. The process was initiated in 2010. However, the exercise was stalled after four weeks, following the outbreak of violent clashes in Barpeta where four persons were killed and 50 were injured. The process was unofficially suspended.

The exercise finally caught momentum in 2013, after petitioners such as the Assam Sanmilita Mahasangha, Assam Public Works and All Assam Ahom Association filed a plea before the Supreme Court in the aftermath of ethnic violence between Bodos and Muslims in 2012. On December 17, 2014, the Supreme Court directed the Government to update the NRC and get it published by the end of January 2016. The Court also laid down the roadmap with timelines for the entire process.

Finally, the exercise of updating the NRC to identify bona fide residents of Assam was initiated in 2015, under the supervision of the Supreme Court.

Nevertheless, since the publication of the updated NRC on August 31, 2019, various stake holders have expressed their displeasure.

AASU expressed disappointment with the published NRC. On August 31, the day of publication of the list, the AASU General Secretary Lurinjyoti Gogoi, asserted, “it is an incomplete NRC. We will appeal to the Supreme Court to remove all the faults and discrepancies in this NRC.” Going a step further, AASU President Dipanka Kumar Nath, on the same day, blamed the State and the Union Governments, arguing, “We had demanded that only 10 documents be entertained to claim inclusion in the NRC, but the government allowed 15 documents. Also, the government did not file objections against suspected illegal Bangladeshis in the NRC process, which could have led to their exclusion.”

Following the publishing of the complete draft list on July 30, 2018, the Supreme Court, on September 5, 2018, allowed only 10 documents for the claim for inclusion in the NRC. These documents were Land Records including sale deed, records of land rights, Permanent Residence Certificate (PRC) issued by the competent Authority from outside the State, Passport, LIC policy, Any License/ Certificates issued by any Government Authority, Documents showing service/ employment by any Government/ PSU, Bank/ Post office Account, Birth Certificate, Educational Certificates issued by Board/ University and Records/ Processes pertaining to the court. Later, on November 1, 2018, the Supreme Court allowed the use of another five documents for the claims process – the 1951 NRC, pre-1971 voters’ lists, citizenship certificate, refugee registration certificate and ration cards issued till 1971. The NRC state coordinator Prateek Hajela had earlier objected to the use of these five documents, claiming they could be forged by the claimants.

Moreover, the State Government led by the Bharatiya Janata Party (BJP) was also concerned about the veracity of the list. On September 1, 2019, State Finance Minister Himanta Biswa Sarma disclosed that the State Government would approach the Supreme Court to address the anomalies arising out of the NRC:

The NRC authority has registered many cases where documents were questionable after which we asked for a reverification of 20% of the cases in border Districts and 10% in other Districts as we found that in border areas, where populations were high, deletions were low, whereas in tribal areas deletions were higher in proportion. The Supreme Court denied that request. We will go back again to the SC and ask that at least in two Districts, on a pilot basis, reverification should happen.

There were indications even prior to the publishing of the final NRC that the State Government led by the BJP would take a stand against it. On August 19, 2019, Chief Minister (CM) Sarbananda Sonowal talked of exploring legislative options to deal with the wrongful inclusion of some names in the NRC after its final publication. Earlier, on August 1, 2019, the State Parliamentary Affairs Minister Chandra Mohan Patowary informed the State Legislative Assembly that more than 90 per cent of the names in four Districts bordering Bangladesh had been included, while many have been excluded in Districts dominated by indigenous people. The data, which the Minister shared with the State Assembly, gave inclusion rates of 91.78 per cent, 92.3 per cent, 91.96 per cent and 92.7 per cent in Muslim-dominated Dhubri, Karimganj, Hailakandi and South Salmara Districts respectively. On the other hand, Districts dominated by indigenous people, such as Guwahati (Kamrup Metro) had an 18 per cent exclusion rate; in Karbi Anglong, West Karbi Anglong, Baksa and Sonitpur, the exclusion rate ranged between 14 and 15 per cent; and was 22 per cent in Bongaigaon. The source for the data provided in the Assembly is not known. Indeed, on August 1, 2019, Patowary rued the role of the NRC State Coordinator Prateek Hajela, observing, “The NRC State Coordinator submits the information to the Supreme Court. But he does not share information with the State Government.”

Further, the Asom Gana Parishad (AGP), one of the allies of the ruling BJP, has also expressed its unhappiness with the final list. AGP President and State Agriculture Minister Atul Bora found the number of exclusions to be “ridiculously small’’. Notably, AGP is the political party that emerged from the Assam agitation and ruled the State for two terms between 1985-89 and 1996-2001.

However, there were some political parties which supported the exercise. The Indian National Congress’ (INC) Leader of the Opposition in the State Assembly, Debabrata Saikia, asserted that the final NRC list would end suspicions that there were tens of millions of illegal immigrants in Assam. Similarly, the All India United Democratic Front (AIDUF) has supported the NRC, with its spokesperson insisting that it was “a step towards resolving the foreigners’ issue in Assam”.

The reactions of various political parties since the publication of the NRC have been based on their need to cater to their respective constituencies. The NRC list upset BJP’s political mobilisation based on the consolidation of Hindus across the ethnic divide on the issue of the threat of “infiltrators in Assam”. For the BJP, the trouble lies in the fact that the figure of 1.9 million excluded falls far short of expectations, and worse, many Bengali Hindu names – avid party voters – are on the excluded list as well. BJP’s ally, AGP, born out of the ‘foreigners’ movement, will also find the ‘low’ number of suspected outsiders identified inexplicable to its core voters, who believe the number to be much higher. For INC and AIUDF, long projected by opponents as supporters of ‘illegal Bangladeshis’ living in the State, the NRC, at least for the time being, gives sufficient grounds to counter the BJP’s narrative on illegal immigration.

The number of excluded people in the final list is, however, far from several claims made earlier.  In May 1997, the then Union Minister of Home Affairs Indrajit Gupta, had reportedly said there were about four million ‘illegal immigrants’ in Assam out of 10 million such immigrates living in India. On July 15, 2004, the then Union Minister of State for Home Affairs Sriprakash Jaiswal had told the Rajya Sabha (Upper House of India’s Parliament) that Assam had over five million “illegal Bangladeshi migrants”. Sriprakash Jaiswal’s statement was later withdrawn, after claims that the figure was based on “unreliable reports” and “hearsay”. Most recently on November 16, 2016, the then Union Minister of State for Home Affairs Kiren Rijiju told the Rajya Sabha that there were 20 million illegal Bangladeshi immigrants living in India.

Meanwhile, the active militant groups in the State are likely to try to take advantage of the situation, if it is not managed properly, especially the delicate inter-ethnic and religious equations. Indeed, in an interview published on November 24, 2018, when asked about the ongoing NRC, United Liberation Front of Asom-Independent (ULFA-I) ‘commander-in-chief’ Paresh Baruah had stated,

It is a bad process. I do believe that the grievance of the people of Assam is genuine. But what is the point of [revising the register] now? The NRC is being [revised] specifically to create divisions between Hindus and Muslims, and Assamese and Bengalis.

Significantly, though none of the active militant groups, including ULFA-I, has said anything after the publication of the final NRC list so far because of state of disarray that these groups are in after the Myanmar operations, they will in all likelihood try to take advantage of the wide sense of public grievance. It is pertinent to recall here that the insurgency in the State, which is on its last legs, began on this very issue of ‘illegal immigrants’.

Separately, there is a possibility of an adverse judgment by the Supreme Court on the question of the constitutional validity of Section 6A of the Citizenship Act. The section prescribes March 24, 1971, as the cut-off date for detection and deportation of illegal migrants in Assam. Petitioners, led by the Assam Sanmilita Mahasangha (ASM), maintain that the cut-off date is “discriminatory, arbitrary and illegal” and “ultra vires to the Constitution”. If the claim of the ASM is upheld by the Supreme Court’s Constitutional Bench, the entire NRC process will become invalid.

Significantly, the State NRC Coordinator has not yet shared its findings with the State Government following the Supreme Court’s direction. In its August 13, 2019, order, the bench of Chief Justice Ranjan Gogoi and Justice Rohinton Fali Nariman directed the State NRC Coordinator that “an appropriate regime be enacted on lines similar to the security regime provided for AADHAAR data. Only thereafter, the list of inclusions and exclusions shall be made available to the State Government, Central Government and Registrar General of India.” On September 6, 2019, the State Government’s Commissioner and Secretary, Home and Political Department, Ashutosh Agnihotri complained, “After the publication of the final NRC, there is confusion and anxiety as well among the people…’’

There are several other pitfalls that need to be carefully addressed in order to complete the NRC process. It is evident that neither those who opposed NRC nor those who supported it are happy with the final outcome. A prolonged legal battle is now assured, if applications are entertained in the Supreme Court to correct the purported ‘flaws’ in the NRC. The construction of FTs and detention camps is another thorny challenge that will have to be addressed.  Additionally, there is a need to design suitable policies and to think ahead if these issues are to be successfully tackled. The question of what is to be done with the people who are left out after all the legal avenues have been exhausted, will have to be tackled.   

It is important, therefore, that the State Government and the Union Government gear up to meet the inevitable and emerging challenges. A lackadaisical approach to dealing with the present situation can potentially translate present confusion into massive anger, leading to political tensions between different ethnic and religious communities, pushing the State towards instability and possible violence.

*Giriraj Bhattacharjee
Research Associate, Institute for Conflict Management



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SATP

SATP, or the South Asia Terrorism Portal (SATP) publishes the South Asia Intelligence Review, and is a product of The Institute for Conflict Management, a non-Profit Society set up in 1997 in New Delhi, and which is committed to the continuous evaluation and resolution of problems of internal security in South Asia. The Institute was set up on the initiative of, and is presently headed by, its President, Mr. K.P.S. Gill, IPS (Retd).

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