NRC for Assam: A flawed design A process with an inherent potential to exclude millions of genuine citizens

07, Jan 2021 | D.Bhattacharjee

The exercise for preparation and updating of NRC for the state of Assam was directed and also monitored by Supreme Court Bench consisting of Justices Ranjan Gogoi and Rohinton Fali Nariman (in the ongoing matter, the judgement dated December 17, 2014 in the case of Assam Public Works Vs. Union of India & Ors (Writ Petition Civil No. 274 of 2009 is relevant). About 1.9 million residents of Assam were excluded from the final NRC which was published on August 31, 2019. The NRC-excluded now have to approach Foreigners’ Tribunals to establish their citizenship, through a process which is elaborate, requires arbitrary levels of “evidence” besides involving more expenditure. All stakeholders, those concerned with this process, are interested to know whether all those excluded from the final NRC are actually illegal migrants or do the excluded include genuine citizens as well?

There has been wide debate around the fact that the NRC rules and Standard Operating Procedures (SOP) and SSOPs have not just been changed and altered – in terms of documents prescribed under both –but can also not be easily accessed or arranged by poor, landless and unlettered Citizens. Vast numbers will be from this category. Although, criteria for inclusion in NRC, in accordance with Citizenship Rule, 2003, is citizenship status based on NRC of 1951 and electoral rolls up to the midnight of July 24, 1971, 12 other documents have been also included later which should be verifiable with records available with the issuing authorities.

The details of such documents have been published on the NRC website ⁽¹⁾, according to which a resident in Assam needs to comply with two requirements to be eligible for inclusion in the updated NRC. The first requirement is to submit any of the 14 documents under List A, issued before midnight of March 24, 1971, where the name of self or ancestor appears (to prove residency in Assam up to midnight of 24th March, 1971). These are termed Legacy Documents.

Other than the NRC of 1951 and electoral rolls up to midnight of March 24, 1971, the 12 other  prescribed documents are Land & Tenancy Records, Citizenship Certificate, Permanent Residential Certificate, Refugee Registration Certificate, Passport, LIC, any Govt. issued License/Certificate, Govt. Service/ Employment Certificate, Bank/Post Office Accounts, Birth Certificate, Board/University Educational Certificate and Court Records/Processes. Further, two other documents, namely Circle Officer/Gaon Panchayat (GP) Secretary Certificate in respect of married women migrating after marriage, and Ration Card issued up to the midnight of March 24, 1971 can be adduced as supporting documents.

However, these two documents shall be accepted only if accompanied by any one of the 14 documents under List A. The second requirement would arise if name in any of the documents of List A is not of the applicant himself/herself but that of an ancestor. In such a case, the applicant shall have to submit any one or more of the 8 documents in List B, called linkage documents, to establish relationship with such ancestor, whose name appears in List A documents. These documents shall have to be legally acceptable document which clearly proves such relationship. Prescribed list B documents are Birth Certificate, Land document, Board/University Certificate, Bank/LIC/Post Office records, Circle Officer/GP Secretary Certificate in case of married women, Electoral Roll, Ration Card, any other legally acceptable document. Providing any one of the documents of List A of any period up to midnight of March 24, 1971 shall be enough to prove eligibility for inclusion in updated NRC.

Now the important question is how can a landless person provide land documents to prove residency in Assam before March 25, 1971? How can an unemployed person submit Govt service or employment certificate? As revealed in the Socio Economic and Caste Census of 2011 ⁽²⁾, about 86% of the total population in Assam hails from rural areas. SECC further reveals that 56% of the residents in rural areas in Assam are landless and only 8.5% of rural population are employed in salaried Govt service. Education certificates issued by Board or University can be submitted by those residents who, at least, have completed class X standard. According to the 2011 census, only 8.23% of the literate population (28.15%) in Assam have cleared Board or University exams. The proportion of such people will be presumably much lesser before 1971.

Under these circumstances, a majority of the residents in Assam are unable to submit land documents, Govt employment certificates and Board or University educational certificates issued before 1971. Again, the registration of birth and death became mandatory with enactment of Birth and Death Registration Act in 1969. As such almost all residents in Assam who were born before 1969, are not expected to possess birth certificates issued by appropriate Govt. Authority. Further, Global Findex data of 2011, as published by World Bank ⁽³⁾, shows that only 35.25% of the Indian adults have accounts in any financial institution. Access to financial institutions would be more infrequent before 1971. Hence, Bank, LIC and Post Office documents or certificates cannot be submitted by majority of the Indians, specially marginalised sections of the society.

The remaining documents, under List A, like Court proceedings, passport, citizenship certificate and refugee certificate does not concern majority of the population. Even when such documents are available with the residents and were submitted to the authorities, such documents, in many cases, were rejected on the ground that their backend copies are not available and as such the documents submitted by them couldn’t be verified by the issuing authorities. This is because verification of documents with official records is an explicit and mandatory condition under NRC rules for Assam, vide Clause 3(1) of Schedule attached to Citizenship Rules, 2003. Refugee certificates, mainly, were not accepted on this ground. This situation may arise particularly in the case of LIC or Bank documents where the issuing authorities are not required, by any statute, to preserve original documents for such long period of time and are, consequently, unable to verify and certify these documents as sent to them by the NRC authorities. Similar is the case with various state Governments outside Assam. In many cases, it is learnt, that these documents were either returned unverified or there was no response from the issuing authorities.

Again, many people lost their households along with important documents due to natural calamities, like flood and inundation, which is a perennial problem in Assam. Hence, those residents who had to rely solely on these documents to prove their citizenship, were obviously at greater risk of being declared ineligible for inclusion in NRC. In such circumstances, their only hope rest with documents and records in the custody of Govt. like electoral rolls up to 1971 and NRC of 1951. Even such important Govt. records are either lost or destroyed and not available in many districts in Assam ⁽⁴⁾. There are, again, allegations that many people were excluded from the final NRC list due to procedural lapses or clerical error. For example, it is reported that in many cases, children were included in final NRC but not their parents. In some other cases, both parents were found genuine citizens and hence included in NRC but surprisingly not their children for failure to submit linkage documents acceptable to the authorities. Keeping aside the issue of document related difficulties or procedural lapses, another question which is hardly being raised so far is whether the NRC rules and procedures are also inherently flawed, discriminatory and unconstitutional and, as such, has the potential to exclude many genuine citizens based on their race, religion, language, dialect or place of birth? It is, therefore, of utmost importance to have a relook at some vital rules and procedures for NRC enumeration in Assam.

Flawed Cut-off date

NRC for Assam is being updated as per Rule 4(A) of Citizenship Rules, 2003 which requires proof of citizenship in Assam upto the cut-off date of March 24 , 1971 (mid night). This cut-off date was accepted on the basis of Assam Accord for regularising illegal migrants from East Pakistan and accordingly Section 6(A) of Citizenship Act, 1955 was introduced vide amendment (w.e.f. December 7, 1985) to grant deemed citizenship to Indian origin persons from East Pakistan who arrived in Assam before January 1, 1966 and also to grant citizenship to those persons who had migrated to Assam from East Pakistan on or after January 1, 1966 but before March 25, 1971 after ten years from the date they are being declared as foreigners by the concerned authorities.

For the purpose of inclusion in NRC, any person born in Assam or any other state in India is required to prove his or her ancestral residency in Assam, or their state of origin, as the case may be, before the cut-off date of March 25, 1971 with prescribed documentary evidence. However, this cut-off date of 1971 is about illegal migrants from East Pakistan (now Bangladesh) and is not applicable for Indian citizens as specified under Sub-Section 6A(7) of Citizenship Act, 1955 which reads as, “Nothing in sub-sections (2) to (6) shall apply in relation to any person – (a) who, immediately before the commencement of the Citizenship (Amendment) Act, 1985, for year is a citizen of India; (b) who was expelled from India before the commencement of the Citizenship (Amendment) Act, 1985, for year under the Foreigners Act, 1946 (31 of 1946).”

For example, if a person is born in Assam on or after  March 25, 1971 but before July 1, 1987, then he or she is a citizen of India by birth irrespective of the status of citizenship of his or her parents, on the basis of Section 3 (1) (a) of Citizenship Act, 1955. However, for inclusion in NRC, a resident in Assam is mandatorily required to prove his or her ancestor’s residency in Assam or elsewhere in the country before the cut-off date of March 25, 1971 through documentary evidence. Such compliance is not certainly required to prove one’s citizenship according to the provisions under Constitution of India as well as parent Citizenship Act, 1955. Hence, the cut-off date criteria prescribed for residents in Assam under Rule 4(A) (2) of Citizenship Rules, 2003 for inclusion in NRC is a clear violation of both Constitution of India as well as Citizenship Act, 1955.

There may be millions of such residents in Assam who were born after the cut-off date of March 25, 1971 but before July 1, 1987 and who could not establish proof of ancestral residency in Assam, or in their state of origin outside Assam, due to lack of documents, which are more than four decades old, or for any other reason and were, in consequence thereof, excluded from the final NRC despite being genuine citizens of India by birth. There might be another category of residents who have acquired Indian citizenship through registration or naturalisation after March 24, 1971. Obviously, they would fail to prove residency in Assam, or in their state of origin outside Assam, before March 25, 1971 and, hence would be excluded from final NRC. Therefore, the cut-off date criteria for Assam under the Citizenship Rules, 2003, by design, has the potential to exclude millions of residents in Assam who are genuine citizens of India by birth or otherwise as per Constitution of India or parent Citizenship Act, 1955.

Original Inhabitants benefit with unconstitutional discrimination

It is being widely debated that, for the purpose of inclusion in NRC for the state of Assam, the documents (List A), which are being prescribed to establish residency in Assam before the cut-off date of March 25, 1971, can be hardly produced by many residents in Assam who are mainly poor, illiterate and landless people, specially women. These documents, which are more than four decades old, in many cases, are either not available or if available with the applicants, the backend copies are lost at the end of the issuing authorities.

However, a little known fact is that such proof of residency in Assam prior to the cut-off date of 1971 with documentary evidence is not mandatory for those residents who are being categorised as Original Inhabitants of Assam, which, as commonly perceived, refers to the indigenous people of Assam. Such exemption was indicated in a letter issued by the State Coordinator in October, 2017 ⁽⁵⁾ which was addressed to district authorities in Assam, thus “It is reiterated that except for those covered under Clause 3(3), submission of an admissible and valid List A document is essential. However, for those persons who have not submitted any documentary evidence for List B, matter of issue of establishment of relationship with the Legacy Person (other than for those cases whose citizenship status has been ascertained beyond reasonable doubt under Clause 3(3)) would be referred to the DRCR under Clause 3(4)”. Which means Original Inhabitants of Assam are exempted from the mandatory requirement to establish residency in Assam before the cut-off date of March 25, 1971 with documentary evidence (List A).

The question which arises is how the NRC Coordinator could issue such guidelines exempting Original Inhabitants of Assam from the mandatory requirement to submit proof of residency in Assam prior to March 25, 1971? This question also arises because it is a mandatory requirement under Rule 4A (2) of Citizenship Rules, 2003, as applicable for Assam, that the citizenship status should be based on the National Register of Citizens 1951 and the electoral rolls up to the midnight of the 24th day of March, 1971. Later 12 other documents were prescribed along with these documents. However, an exception to this Rule 4A (2) has been made for Original Inhabitants of Assam in Clause 3(3) under Schedule attached to Citizenship Rules, 2003 which states, “The names of persons who are originally inhabitants of the State of Assam and their children and descendants, who are Citizens of India, shall be included in the consolidated list if the citizenship of such persons is ascertained beyond reasonable doubt and to the satisfaction of the registering authority.” Here, “shall” in legal parlance means “must”.

That is, the Original Inhabitants of Assam must be included in the NRC subject only to the condition that their citizenship status is ascertained beyond reasonable doubt and to the satisfaction of the registering authorities. Therefore, citizenship alone, including citizenship by birth, is the criteria for inclusion in NRC in respect of Original Inhabitants in Assam unlike others for whom it is mandatory to prove residency in Assam, either for themselves or their ancestors’, prior to the cut-off date of 1971 with admissible and legally valid documentary evidence.

With regard to the Original Inhabitants provision under the NRC Rules, a clarification has been posted on the NRC website, “As the law provides for the Original Inhabitants to be included in NRC, this provision is being implemented to ensure that no Original Inhabitant is deprived of this legal protection and is excluded from NRC due to unavailability of document or any such reason” ⁽⁶⁾. Also, according to information published in NRC website, Original Inhabitants of Assam and their descendants shall be included in NRC based on their citizenship status alone without any prescribed cut-off date criteria or without any mandatory requirement of documentary evidence for the purpose ⁽⁷⁾.

Such a discriminatory rule, where criteria for inclusion in NRC is differently applied, based on the status of inhabitancy of the applicant, is certainly a clear violation of Constitutional principles (Article 14 & 15). Even under Rule 4 of Citizenship Rules, 2003, as applicable for other states in India, there is neither such mandatory requirement to prove residency in India before any common cut-off date, nor there is any discrimination by way of exemption of certain categories of residents from such compliance.

Citizenship alone is the criteria for inclusion in NRC for residents of all other states in India, without any discrimination. Also, there was no such discrimination in the original Citizenship Rules, 2003. This discriminatory and unconstitutional Rule 4(A), as applicable for Assam, was incorporated under the Citizenship Rule, 2003 in the year 2009. Even the parent Citizenship Act, 1955 does not discriminate amongst citizens on such basis.

When the first partial draft of National Register of Citizens list was published on December 31, 2017, the NRC Coordinator, Prateek Hajela was asked in an interview ⁽⁸⁾ to explain why, in lower Assam, home to Bengali Muslim community, less than 40% made it to the list, whereas in upper Assam districts of Sibsagar and Jorhat more than 80% people were included in the list. The explanation was that in Upper Assam, a large number would be coming through the original inhabitant category, whose citizenship has been established beyond reasonable doubt through field verifications and local enquiry. As may be noted, the documentary evidence was also not mandatory to prove eligibility for inclusion in NRC for Original Inhabitants of Assam.

Unconstitutional NRC rules & role of Supreme Court

Since the entire process of updating NRC for the state of Assam has been monitored by Supreme Court Bench, it was expected that the Bench would be very much aware of the unconstitutional NRC rules and procedures. Towards the later stage of the process, the issue of citizenship by birth under Section 3 of the Citizenship Act, 1955, was raised by NRC Coordinator in his report dated July 10, 2019, before the Supreme Court Bench, for some specific cases relating to descendants of D Voters (DV), Declared Foreigners (DF), and cases pending before Foreigners’ Tribunals/Other Courts (PFT). In the said report, the NRC Coordinator cited Supreme Court Order dated July 2, 2018 wherein it was directed that those persons who are DVs or PFTs, as well as their descendants, are not to be included in updated NRC. The NRC Coordinator further emphasised in the report, “As descendance can be drawn from either of the parents, clarification appears to be required in cases where one of the parents is clear from all angles (not DV/DF/PFT and eligible for NRC inclusion) while the other parent is a DV or DF or PFT. It also appears that while deciding eligibility of descendants, provisions of Section 3(1) (b) & (c) of the Citizenship Act, 1955 may be important to be taken into account, though citizenship purely by birth and not by descendance (Section 3(1) (a) is not eligible for inclusion in NRC. It is humbly felt that the substance of Section 3(1)(b) & (c) is that while determining citizenship of any descendant born up to 3 December, 2004, citizenship eligibility of any one of the parents suffices, while for those descendants born on or after 3 December 2004, citizenship eligibility of both the parents needs to be taken into account.”

 Based on such observations, the NRC Coordinator sought approval from Supreme Court Bench on three courses of actions in respect of DV, DF and PFT. First of such proposed actions was not to include in the NRC all such applicants/claimants where parent/legacy person through whom eligibility is sought to be established is a DV or DF or PFT, irrespective of the status of citizenship of the other parent. Secondly, for those persons born before December 3 , 2004, if the parent through whom legacy is drawn is not DV or DF or PFT and is found eligible for inclusion in NRC, but the other parent from whom legacy is not drawn is a DV or DF or PFT, then, such descendants may be included in NRC. Next, it was proposed that those persons who were born on or after December 3, 2004, they will not be included in NRC if any of the parent is DV or DF or PFT even if the parent from whom legacy is drawn is clear from all angles.

In response, the Supreme Court Bench, in their Order dated July 23, 2019, directed NRC Coordinator to issue a public notice to enable all stakeholders to contest the prayers made by the State Coordinator in this regard, if they so desire. Subsequently, responding to the public notice, several Interlocutory Applications were filed contesting the action proposed by the state Coordinator primarily on the ground that the said action runs contrary to the provisions of Section 3(1) (a) of the Citizenship Act, 1955 which deals with acquisition of citizenship by birth in the case of every person born in India on or after the January 26, 1950 but before the 1 July, 1987.

After examining all objections raised by the stakeholders along with submission made by the state Coordinator, the Supreme Court Bench, in their order dated August 13, 2019 (W.P. (C) No. 274 of 2009), approved the proposals made by the state Coordinator. In a nutshell, the state Coordinator proposed and Supreme Court Bench agreed that the descendants of DV, DF and PFT who applied for inclusion in NRC on the basis of legacy or residency of their ancestors in Assam before the cut-off date of 1971, are not to be included in NRC irrespective of the citizenship status of the applicants per se.

Therefore, the Supreme Court Bench, has declined to allow all such appeals made in this connection and ordered that, “The entire NRC exercise having been performed on the aforesaid basis, the same cannot be now ordered to be reopened by initiation of a fresh exercise on certain other parameters that have been suggested on behalf of the intervenors/applicants on the strength of the provisions of Section 3(1) (a) of the Act.” Broadly, the issue was related to those residents in Assam who were under statutory obligation to apply for inclusion in NRC based on their ancestors’ residency in Assam prior to the cut-off date of 1971. The bigger question is, if citizenship by birth under Section 3(1) (a) was not to be allowed per se in the case of descendants of DV, DF and PFT, on the above ground, then why was the opinion of stakeholders at all invited through a direction of the Supreme Court? After all, the grounds cited by the Supreme Court while rejecting appeals in this connection very much existed at the time of issuing public notice inviting opinions from all the stakeholders. Also, the process that followed, consumed valuable time, energy and money from all concerned.

The question now arises as to whether the descendants, including the descendants of DV, DF and PFT, who were denied inclusion in NRC solely based on their citizenship status, are foreigners or genuine citizens of India? Obviously, many of them may be the rightful citizens of India by birth, in accordance with Citizenship Act, 1955, but were denied inclusion in NRC since they had no other option but to apply for the same on the basis of their ancestors’ residency in Assam before the cut-off date of 1971.

It is pertinent to mention here that Citizenship Rules, 2003 were not framed to define who the citizens of India are. The Rules only lay down procedures and criteria for inclusion of residents of India in the NRC based on their citizenship status. Also, the Citizenship Rules cannot violate the parent Citizenship Act. For this reason, mere denial for inclusion in NRC, because of some rules and procedures which are contrary to Citizenship Act, 1955 and Constitution of India, does not mean that the persons so excluded from NRC, the descendants of DV, DF and PFT in this case, are not citizens of India.

As such, there is a specific mention in the Supreme Court order dated August 13, 2019 in Writ Petition (Civil) No. 274 of 2009, that the issue raised could be best decided by the Tribunal, if so required, as and when appeals are filed. It implies that citizenship by birth, which was denied under Citizenship Rules, 2003 for the purpose of inclusion in NRC, especially in respect of those residents in Assam who are not covered under Clause 3(3) of the Schedule attached to Citizenship Rules, 2003, cannot be otherwise denied under the Citizenship Act, 1955.

In such case, what would be the fate of those residents in Assam who are not Original Inhabitants of the state and who were denied inclusion in NRC, either because they were unable to establish their or their ancestors’ residency in Assam before the cut-off date of 1971 or because they were unable to establish linkage with those ancestors with documentary evidence, as required under Citizenship Rules, 2003 (4A), but later declared as rightful citizens of India by birth at Foreigners’ Tribunals, as per provisions of Citizenship Act, 1955?

One may recall, the same Supreme Court Bench in an earlier order dated December 5, 2017 in Writ Petition (Civil) No. 1020 of 2017 along with several other Writ Petitions relating to Original Inhabitants of Assam, have categorically mentioned that citizenship alone is the criteria for inclusion in NRC.  As we can see now, such observation made by Supreme Court Bench, in the said Order dated December 5, 2017, was grossly incorrect. That citizenship alone is not enough for inclusion in NRC,  was later accepted by the same Supreme Court Bench as is evident from their subsequent order dated August 13, 2019 in Writ Petition (Civil) No. 274 of 2009. Such contradictory observations by the Supreme Court on an important issue, like citizenship, appear to be very rare.

It is worthwhile mentioning here that the issue of validity of Section 6A of Citizenship Act is being contested in the case of Assam Sanmilita Mahasangha & Ors. Vs. Union of India in Writ Petition (Civil) No. 562 of 2012, and the matter has been referred by the Supreme Court Bench, consisting of Justice Ranjan Gogoi and Rohinton Fali Nariman, to Chief Justice of India for constitution of an appropriate Bench to answer the questions rose in this regard. However, pending decision in this matter regarding the validity of Section 6A of Citizenship Act, 1955, the Supreme Court Bench directed in their Judgement dated December 17, 2014 for updating NRC in case of Assam considering that the same is valid (“As Section 6A of the Citizenship Act must be deemed to be valid until the larger Bench decides these matters, we will proceed, for the purposes of this order, on the footing that Section 6A of the Citizenship Act is valid”).

On the contrary, in the case of the NRC enumeration process for Assam, in spite of appeal, the same Supreme Court Bench did not agree to set aside the unconstitutional NRC rule on the issue of citizenship by birth under Section 3 of the Citizenship Act, 1955, on identical grounds, considering that the Section 3 of the said Act as valid till decided otherwise by the Constitution Bench.

However, as one may agree, merely because the purport and effect of citizenship by birth under Section 3 (1) (a) and (b) of Citizenship Act, 1955 is pending for decision before Constitution Bench, ipso facto does not make the Section 3 (1) (a) and (b) of the Act null and void for the purpose of the NRC enumeration process in Assam. Even otherwise, it would have been the more prudent course of action on the part of the Supreme Court Bench to await the decision in this regard before the finalization of NRC. The Bench, in their wisdom, however, decided to complete the exercise in accordance with the highly discriminatory and unconstitutional 2003 Rules and hence ordered, “We make it clear that subject to orders as may be passed by the Constitution Bench in Writ Petition (C) No.562 of 2012 and Writ Petition (C) No.311 of 2015, National Register of Citizens (NRC) will be updated.” There may be millions of citizens in Assam who have fallen victims to such unconstitutional rules, and now they have to approach Foreigners’ Tribunals to prove their citizenship through a difficult process which could have been otherwise avoided.

Interestingly, the Supreme Court in one of their earlier orders dated July 21, 2015, under Writ Petition No. 562 of 2012, had clarified that the expression “original inhabitants of the state of Assam” would include the “Tea Tribes” without explaining the basis for such categorisation. It is a historical fact that after discovery of tea in Assam, the British brought workers from Bihar, Odisa and other central Indian states. Also, as published in Assam Govt website ⁽⁹⁾, “There are more than 1000 (one thousand) tea gardens in Assam where workers originally coming from Orissa, Madhya Pradesh, Bihar, Andhra Pradesh and West Bengal have engaged themselves and subsequently settled in Assam permanently. They are known as Tea and Ex-Tea Garden Tribes, who are recognized as Other Backward Classes by the Government.” Tea Tribes, as may be seen, have migrated to Assam from outside the state. Further, Tea Tribes, like Bengalis in Assam, are also present in Bangladesh for centuries. But, whereas Tea Tribes were confirmed by Supreme Court as the Original Inhabitants of Assam, the Bengalis, more particularly Muslims, on the other hand, were reportedly not categorised as Original Inhabitants of the state ⁽¹⁰⁾. However, in absence of any official information about the communities categorised as Original Inhabitants of Assam or criteria for such categorisation, one can only infer this from available information in media. It has been reported that about 1.30 crore residents in Assam are being categorised as Original Inhabitants of this state ⁽¹¹⁾.

Historically, Bengalis are inhabitants of post-independent geographical area of Assam for centuries, before arrival of Tea Tribes as indentured labourers, after discovery of tea in Assam around 1934. In fact, Bengalis are earliest known inhabitants of undivided Karimganj district of Assam which was part of Sylhet district, now in Bangladesh, and later transferred to Assam through a referendum in 1947. Also, the presence of Bengalis in Cachar district can be traced back to earlier than 1750 A.D. ⁽¹²⁾.

In the Brahmaputra Valley, during the reins of Ahom kings and even earlier, many Hindus and also other religious communities migrated to Assam from Bengal and other parts of India. In fact, Census Report of 1931 by C.S. Mullan reveals that the proportion of Bengalis in Brahmaputra Valley (consisting of undivided districts of Goalpara, Darrang, Kamrup, Nagaon, Sibsagar and Lakhimpur) was 23.3%, as against Assamese population of 42.3% ⁽¹³⁾. The arrival of Muslims (1206 AD) was prior to the invasion of Assam by Ahoms. Again, similar to Karimganj District, the undivided Goalpara district was annexed to Assam by the British in 1874.

As can be ascertained from Census Report of 1931 ⁽¹⁴⁾ that Muslims were 43.9% of the overall population of undivided Goalpara district of Assam. Also, Bengalis constituted 53.97% of the total population of the district in 1931 ⁽¹⁵⁾. Therefore, Bengalis as linguistic community and Muslims as religious community have significant historical presence within the post independent boundary of Assam for centuries. One may debate, ad infinitum, about which racial, linguistic or religious communities migrated to Assam earlier and who came later, but such discourse would be of little or no relevance when the issue is citizenship in the light of our Constitution. This is ignored not only by all stakeholders but also by the law makers and even by the Supreme Court Bench, as custodian of our Constitution.

In another letter of November, 2017, addressed to the district authorities, laying down guidelines to decide about eligibility of applicants in updated NRC in respect of cases referred to District Magistrates (DM) under Clause 3(4) of the Schedule attached to Citizenship Rules, 2003, it was advised that the Verification Teams (VTs) “will also examine any additional evidence, if any, adduced by applicants, socio-cultural attributes of applicants such as language/dialect spoken etc” ⁽¹⁶⁾. On the contrary, language or dialect cannot be a determining factor to decide one’s citizenship as per the Constitution of India or parent Citizenship Act. This letter from the NRC Coordinator was attached as Annexure III to SOP for Claims and Objections, which was approved by the Supreme Court Bench.

Controversial Rule perpetuates discrimination in NRC enumeration

However, on the question of who are original inhabitants of Assam or what is the criteria for such classification has not been defined in the Citizenship Rules, 2003, nor published by the authorities in their website, leaving room for discretion which makes the process not just arbitrary but also non-transparent, apart from being fundamentally discriminatory. Later, a series of writ petitions were filed before the Supreme Court seeking directions from the Court as to the manner in which the expression “originally inhabitants of the State of Assam” appearing in Clause 3(3) of the Schedule to the Citizenship Rules, 2003, is to be understood. Direction was also sought for laying down the procedure by which Original Inhabitants of Assam are required to be identified.

In response, the Bench observed, in their order dated March 12, 2019, in Writ Petition No. 1020 of 2017, that, “Clause 3(3) contemplates a less strict and vigorous process for deciding claims for inclusion in the NRC insofar as persons who are originally inhabitants of the State of Assam are concerned. Identification of persons who are originally inhabitants of the State of Assam as against those who are not does not determine any entitlement for inclusion in the NRC which is on the basis of proof of citizenship alone and nothing else. Neither does such identification confer any special entitlement or benefit. This has, in fact, been clarified in several of the reports submitted by the learned Coordinator before this Court.”

The Bench, therefore, declined to define who the Original Inhabitants of Assam are or for that matter what is the criteria to define a community as Original Inhabitant of Assam. It was very surprising that the Supreme Court Bench, like the law makers of 2009, allowed an important terminology in the Citizenship Rules, 2003 to remain undefined leaving room for arbitrary use of the provision.

In the same order of Supreme Court Bench, it was further observed, “The exercise of upgradation of NRC is not intended to be one of identification and determination of who are originally inhabitants of the State of Assam. The sole test for inclusion in the NRC is citizenship under the Constitution of India and under the Citizenship Act including Section 6A thereof. Citizens who are originally inhabitants/residents of the State of Assam and those who are not are at par for inclusion in the NRC.”

On the contrary, the process of NRC enumeration certainly requires identification of those who are the original inhabitants of Assam as opposed to Supreme Court’s observation. Also, “less strict and vigorous” process is a legal protection for those residents in Assam who are Original Inhabitants of the state and is certainly a “benefit” or “entitlement” as against those who are not categorized as Original Inhabitants of Assam and for whom documentary evidence as proof of their or their ancestors’ residency in Assam prior to the cut-off date of March 25, 1971 was mandatory.

Our Constitution as well as Citizenship Act do not allow such discrimination amongst the residents in India on the basis of place of birth, more particularly ancestral place of birth. To adopt “less strict and vigorous” process or criteria for inclusion in NRC in respect of the Original Inhabitants of Assam and stricter or more vigorous process for other residents solely on the basis of origin or forefathers’ place of birth or inhabitancy is not only fundamental breach of Constitution (Article 15 and16) but also against humanitarian principles of equality before law.

Sadly, the Supreme Court Bench, seems to be unwilling to appreciate and recognise such unconstitutional discrimination on the important question of citizenship for the purpose of inclusion in NRC and, accordingly, they disposed off the matter with observation, “we do not find any reason to issue any direction or clarification as to the meaning of the term “originally inhabitants of the State of Assam” as sought for in the present Writ Petitions and the Interlocutory Application(s)”. It was virtually an endorsement by Supreme Court Bench on the arbitrary, discriminatory and unconstitutional NRC rules and procedures.

Criteria used in NRC mixed, document based and more

The NRC updation process in Assam drew widespread attention and debate over the past few years. A similar exercise in the past, whether during preparation of NRC of 1951 for Assam or preparation and updating of National Population Register in 2010 and 2015 did not generate any debate at either the national nor international level. A pertinent question that arises is what was the special feature of such exercise in Assam which has given rise to so much debate and criticism hitherto not seen in India?

One of the dominant reasons was that, it was perhaps for the first time that the residents were asked to mandatorily furnish documentary evidence as proof of residency in Assam, or their state of origin outside Assam, before the cut-off date of March 25, 1971, to be eligible for inclusion in NRC. As we have seen earlier, these documents, which are more than four decades’ old, are either lost or very difficult to provide by many residents of Assam, especially those who are poor, unlettered and marginalised. As such there is a common perception, especially outside Assam, that the exercise of updating NRC is a document based process for all the residents in Assam and failure to submit any of the prescribed documents means ending up being excluded from NRC.

However, again, everyone in Assam did not have to comply with such stringent requirements. There is discrimination in the rule specifying manner of scrutiny of applications on the basis of inhabitancy of residents of Assam. Clause 3(1) of Schedule attached to Citizenship Rule, 2003 requires that the information or documents submitted by NRC applicants must be verified with official records and the persons, of whom the information is found in order, shall be eligible for inclusion of their names in the consolidated list.

On the other hand, under Clause 3(3) of the same Schedule, prescribing the manner of scrutiny of applications exclusively for Original Inhabitants of Assam, there are no such mandatory criteria requiring submission of documents as well as verification of information or documents furnished by such applicants with official records. Similar to NRC rule applicable for other states in India (Rule 4), the only requirement under Clause 3(3) is to ascertain their citizenship status beyond reasonable doubt and to the satisfaction of the registering authority.

Hence, as reportedly stated by the NRC Coordinator in his interview ⁽¹⁷⁾, a large number of Original Inhabitants of Assam were thus included in the NRC after determining their citizenship status beyond reasonable doubt mainly through field verification and local enquiry. For obvious reasons, majority from the Original Inhabitants category were included in the NRC. On the other hand, it is reported that about 1.16 million of those excluded from final NRC were Bengali Hindus and East Bengal origin Muslims ⁽¹⁸⁾.

In this connection, the discriminatory treatment of the Gaon Panchayat certificate as a supporting document for inclusion in NRC may be cited as an example. The Guwahati High Court, in an order dated 28 February 2017, in the case of Manowara Bewa Vs. The Union of India & Ors, under Writ Petition (Civil) No. 2634 of 2016, rejected the Gaon Panchayat certificate as a legally valid document to establish citizenship of a person, for the purpose of inclusion in NRC.

There were several petitions filed in Supreme Court challenging the order of Guwahati High Court. It was a very important issue, since the claim of 47 lakh persons for inclusion in the NRC was based on certificates issued by Gaon Panchayat Secretaries. Most of those applicants were women, especially from marginalised section of the society. During the proceedings of the case, the NRC Coordinator, on being queried, informed the Court that, “out of the said number he expects about 20 lakhs claims to be in respect of original inhabitants, which fact, if proved, will not require any further proof or inquiry and all such persons will be included in the draft NRC. The Project Coordinator has also stated that about 3.6 lakhs (approximately) claimants are males who were not entitled to use the supportive document in question.”

This statement of NRC Coordinator appeared in Supreme Court order dated August 24, 2017 in the case of Rupajan Begum Vs. Union of India & Ors. under SLP (C) No. 13256 of 2017. After being asked to segregate Original Inhabitants category of claimants from others, the NRC Coordinator later informed the Supreme Court Bench on October 12, 2017 that, “approximately 17.40 lakhs persons are original inhabitants and on the basis of a detailed field verification the Registering Authority is satisfied with the citizenship status of those applicants.”

Based on such statement of the NRC Coordinator, the Supreme Court Bench, in their order dated October 12, 2017, issued directions that the claims for inclusion in the NRC of 17.40 lacs Original Inhabitants be processed accordingly. The answer to the question about the validity of Gaon Panchayat Secretary’s certificate and the fate of remaining 26.3 lacs claimants, who, the authorities believed were not from Original Inhabitants category, was kept pending for a later date.

What is noteworthy here is that the direction for inclusion in NRC in respect of 17.40 lacs applicants belonging to Original Inhabitants Category was issued even before any decision could be taken by the Supreme Court Bench about the validity of Gaon Panchayat Certificate. For the Original Inhabitant category of applicants, such course of action by Supreme Court Bench, inter alia means, that the legal validity of any documentary evidence do not have any material impact on their eligibility for inclusion in NRC. Their citizenship status and eligibility for inclusion in NRC can be otherwise decided through a process called “detailed field verification”.

Later, the Supreme Court Bench, vide their order dated December 5 ,2017 allowed the validity of Gaon Panchayat Secretary’s Certificate to a limited extent “only to establish a linkage between the holder of such certificate and the person(s) from whom legacy is being claimed. The certificate will be put to such limited use only if the contents of the certificate are found to be established on due and proper enquiry and verification.”

The submission of legally admissible and valid documentary evidence, whether to establish linkage with ancestors’ or to prove residency in Assam before the cut-off date of 1971 was, therefore, a mandatory condition for inclusion in NRC only for those applicants who are not from Original Inhabitants category or who are not covered under Clause 3(3) of the Citizenship Rules, 2003. Although some relaxation was allowed for linkage documents, particularly during claims and objections process, but submission of an admissible and valid legacy or List-A document, which are more than four decades old, was mandatory for this category of residents in Assam.

SC oversaw a sharply discriminatory process

It was observed that many people who migrated to Assam from other states in India were unable to provide documents to prove their residency outside Assam before the cut-off date of March 25, 1971. With due approval from Supreme Court Bench, the same legal protection, as applicable for Original Inhabitants of Assam, was later extended during claims and objection process, vide Govt. SOP, to those residents who came to Assam from other states, excluding those who had their origins in specified territory, that is Bangladesh ⁽¹⁹⁾.

It was decided that their cases would be dealt with under Rule 4 of the Citizenship Rules, 2003 and Clause 3(3) of its Schedule. That is, residents of India who do not have any origin in Specified Territory (Bangladesh) and have moved to state of Assam prior to March 25, 1971 or after shall be included in the NRC if the citizenship of such persons is ascertained beyond reasonable doubt to the satisfaction of the authorities disposing of claims and objections. Consequently, like Original Inhabitants of Assam, cut-off date criteria specified under Rule 4A is not applicable for them. Their inclusion in NRC is being allowed on the basis of their citizenship status alone, including citizenship by birth.

Also, like Original Inhabitants of Assam, documentary proof is not mandatory for those residents for inclusion in NRC as their claims would be dealt with in accordance with the provisions under Rule 4 of Citizenship Rule, 2003 and Clause 3(3) of the Schedule attached to Citizenship Rule, 2003. However, such relaxation has not been allowed for those residents who came to Assam from other states and who, in the opinion of the authorities, have origin in the Specified Territory (Bangladesh). Also it has not been explained or defined as to what exactly is meant when one says that a person has origin in Bangladesh. Whether origin means that the resident, who is an applicant for NRC, was born in Bangladesh or, in case the applicant is born in India, whether it also means applicant’s ancestral residency in Bangladesh? When almost every community of Assam has a history of migration to this state from outside Assam, even from China, Thailand, Tibet, Pakistan, Bangladesh, Nepal and other countries, such terminology used in NRC Rules like ‘Original Inhabitants of Assam”, “Origin in Bangladesh” etc. should have been defined in clear terms to remove ambiguity and arbitrary application of rules which may (and have) led to victimisation of some communities in Assam.

Be that as it may, the discrimination was further aggravated during the claims and objections process with due consent from the Supreme Court Bench. One may recall that the same Supreme Court Bench in their order dated March 12, 2019, in the matter of DV, DF and PFT, has declined to allow appeals concerning citizenship by birth under Section 3(1)(a) on the ground that, the entire NRC exercise having been performed on one basis, the same cannot be now ordered to be reopened by initiation of a fresh exercise on certain other parameters on the strength of the provisions of Section 3(1)(a) of the Citizenship Act, 1955. It was further ordered that such cases should be decided by the Foreigners’ Tribunals. Whereas, for residents who came to Assam from other states, and who do not have origin in Bangladesh, it was decided that their cases will be dealt with under Rule 4 of the Citizenship Rules, 2003 and Clause 3(3) of its Schedule which was contrary to Citizenship Rules, 2003. For them a different basis was approved by the Supreme Court Bench than what is permissible under the Citizenship Rules, 2003.

It was ultimately only those residents, who according to authorities have their ancestral origin in Bangladesh, mainly Bengalis and particularly Muslims, who were covered under unconstitutional Citizenship Rule (4A). Others, like Original Inhabitants of Assam and residents who have migrated to Assam from other states and who do not have any origin in Bangladesh, were exempted from such unconstitutional rules and procedures, first by the rule makers of 2009 and later, with the approval of the Supreme Court Bench, during the claims and objection process.

Conclusion

The cut-off date criteria under the NRC Rules for Assam is a flawed design which has the potential to exclude many residents in Assam, specially those born after March 24, 1971, who are genuine citizens of India by birth, but they are either unable to establish their ancestors’ residency in Assam or elsewhere in the country before the cut-off date or cannot establish linkage with such ancestors with documentary evidence.

Citizenship by birth is, therefore, not enough for inclusion in the NRC for vast numbers of residents in Assam which is a fundamental breach of our Constitution as well as the parent Citizenship Act, 1955. This Rule is, however, not applicable for the entire population in Assam.

Like the extent NRC rules for rest of India, citizenship alone, including citizenship by birth, is the criteria for inclusion in NRC for those residents in Assam who are categorised as Original Inhabitants of the state and also residents who have migrated to Assam from other states and who do not have origin in Bangladesh, as per clause 3(3) of Schedule attached to Citizenship Rules, 2003.

Interestingly, those who are Original Inhabitants of Assam and what are the criteria to determine who are Original Inhabitants of Assam are left un-defined. Even what are the criteria or proof required to determine who has origin in Bangladesh or who do not have such origin is not defined.

Again, for those residents covered under Clause 3(3) of the Schedule attached to Citizenship Rules, 2003, submission of documentary evidence as proof of their citizenship is not mandatory similar to citizenship rules for other states in India. Many of them were included in NRC through an “otherwise” method, more precisely through local enquiry and field verification. However, for the remaining residents of Assam, submission of admissible and legally valid documentary evidence (List A) is absolutely mandatory to prove their or their ancestors’ citizenship status or residency in Assam before the cut-off date of 25 March, 1971. When many such documents, which are more than four decades old, are either missing or not available, like NRC of 1951 or electoral rolls upto 1971, it is quite obvious that many residents, for whom submission of an admissible and legally valid document is mandatory, would fail to comply with such requirement and, eventually , end up being excluded from NRC.

The obvious question is how the criteria for inclusion in NRC can be differently applied based on the inhabitancy of residents that is on the criterion of who are the Original Inhabitants in Assam and those who do not belong to such category?

Inhabitancy is related to one’s place of birth, more particularly one’s ancestral place of birth, and our Constitution does not discriminate citizens on the basis of place of birth. Similarly, how one can discriminate against citizens on the basis of ancestral country of origin in matters concerning proof of citizenship?

If it is accepted, that due to a lack of documents, the original inhabitants in Assam, and other residents who migrated to Assam from outside the state, may fail to enroll their names in NRC and accordingly rules and procedures were (subsequently) framed whereby those residents were not required to mandatorily prove their or their ancestors’ residency in Assam prior to the cut-off date of 1971, subject to  a verification that their citizenship is otherwise established beyond reasonable doubt, then why was such a relaxation was not extended to others?

When the lack of documents is a genuine difficulty for everyone irrespective of caste, language, religion, ethnicity or place of birth then how can such a relaxation –that arises out of the same problem or issue – (in a discriminatory fashion) be restricted to certain communities based on criteria of place of birth or inhabitancy?

Such unconstitutional, arbitrary, biased and non-transparent rules and procedures, by design, have the potential and, are the dominant reason for the exclusion of millions of residents in Assam who were not categorised as the original inhabitants of Assam, mainly Bengalis and Muslims, from the final NRC.

Most importantly, how could the Indian Supreme Court Bench, who had directed and also monitored the NRC updating process in Assam, allow such discriminatory and unconstitutional rules and procedures to prevail, will remain a pertinent question.

The exercise for preparation and updating of NRC for Assam was not merely a “less strict and vigorous” process for some residents, categorised as Original Inhabitants of Assam, alongwith other residents who came from states outside Assam and who do not have their origin in Bangladesh.

This discrimination was in fact graver and unconstitutional which was not taken into cognisance by all stakeholders, not even by the Supreme Court Bench, monitoring the process. However, the process cannot be reversed nor may it be desirable to do so.

The reality is that many residents were excluded from the NRC because of an inherent flaw in the rules and procedures. The way forward, in the interests of justice would be for a significantly larger Bench, preferably a Constitution Bench of the Supreme Court, to comprehensively examine all the constitutional validity of rules and procedures of NRC process in Assam, since the people so affected by the discriminatory rules runs into millions.

Of particular importance would be the question of citizenship by birth which though recognised by the parent 1955 Citizenship Act was not enough to include many residents of Assam in the NRC. The mandatory requirement of admissible and legally valid documentary evidence (List A) to prove residency in Assam before the cut-off date of 1971, unlike those who are covered under Clause 3(3) of the Schedule attached to Citizenship Rules, 2003 as applicable for Assam.

If finally such discriminatory rules (2003 Citizenship Rules) are scrapped, then many of those excluded from the NRC, who are otherwise genuine citizens of India, will get a fair chance to prove their eligibility for inclusion in NRC, which has been otherwise denied.

(The author is an independent writer from Malabar hills, Mumbai, Views are Personal)

 

References :

1. What are the admissible documents? (http://nrcassam.nic.in/admin-documents.html)
2. Socio Economic and Caste Census 2011 (https://secc.gov.in)
3. The World Bank; Financial Inclusion Data/Global Findex; (http://datatopics.worldbank.org/financialinclusion/country/india)
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12. A Statistical Account of Assam (Volume – II), W.W. Hunter, 1839, pp 394, https://archive.org/details/in.ernet.dli.2015.174379/page/n393/mode/2up
13. Census of India, 1931, Volume III, Part II.-Tables, pp 226-243, http://lsi.gov.in:8081/jspui/bitstream/123456789/3133/1/33937_1931_TAB.pdf
14. Census of India, 1931, Volume III, Part II.-Tables, pp 256-257
15. Census of India, 1931, Volume III, Part II.-Tables, pp 226-243
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17. See (8)
18. Bangladeshi Bogeyman Myth EXPOSED in Assam!, Zamser Ali, 17 September 2019, Citizens for Justice and Peace, https://cjp.org.in/bangladeshi-bogeyman-myth-exposed-in-assam/
19. http://www.nrcassam.nic.in/pdf/SOP-claims-objections-pdf