A Prophet is without honour in his own country. Substitute ‘citizen’ for ‘prophet’ and you will get the gist of the various writ petitions filed under Article 32 of the Constitution of India assailing Section 6A of the Citizenship Act.”
These were the opening remarks of the judgment that set a timeline to update the National Register of Citizens or NRC in Assam. These remarks were made in favour of the petitioner who challenged Section 6A of the Citizenship Act alleging large-scale illegal immigration in Assam. Almost four years later, when the NRC has finally been published under existing laws, majority of the citizens who have been abused, dishonoured and persecuted for decades in the name of illegal migrants, proved their citizenship and are included in the final list of the NRC. A prophet was indeed without honour in his/her own country.
Today, 3,11,21,004 names have been included in the final NRC, while 19,06,657 names have been excluded from it. These excluded people are not foreigners; they have 120 days to appeal before the Foreigners Tribunal, except those whose cases are already pending before it. Many genuine citizens have not been included in the final list. Cousins have not made it, even though their parents have. I am getting similar news from various other places. Will Prophet still be without honour in his country?
Was illegal migration ever a ‘grave threat’?
The updated National Register of Citizens is the first-ever exercise carried out in India to find out the exact number of citizens and doubtful citizens. No one knew the exact numbers of illegal migrants. But that didn’t stop various groups and politicians from stating imaginary numbers. Even constitutional authorities gave exaggerated numbers. Then home minister Inderjit Gupta said in Parliament on 6 May 1997 that there were 10 million illegal migrants in India. Quoting the home ministry and Intelligence Bureau sources, the 10 August 1998 issue of India Today gave a breakdown of these illegal migrants. According to the report, Assam had four million illegal immigrants.
On 8 November 1998, Lieutenant General S.K. Sinha, then governor of Assam, submitted a report to then President K.R. Narayanan on the “grave threat” posed by illegal immigration. In the report, he said, “The dangerous consequences of large-scale illegal migration from Bangladesh, both for the people of Assam and more for the Nation as a whole, need to be empathetically stressed. No misconceived and mistaken notions of secularism should be allowed to come in the way of doing so.”
Primarily on the report of S.K. Sinha and statement of Inderjit Gupta, the Supreme Court in 2005 in the Sarbananda Sonowal case went on to hold that Article 355 of the Constitution had been violated, as the Union had failed to protect the state of Assam against the external aggression and internal disturbance caused by the huge influx of illegal migrants from Bangladesh to Assam. This judgment became a precedent and “external aggression” became a justification to decide cases under the Foreigners Act and declare many as “foreigners”.
On 14 July 2004, in response to an unstarred question on the deportation of illegal Bangladeshi migrants, then home minister Sriprakash Jaiswal submitted a statement to Parliament that said the estimated number of illegal Bangladeshi immigrants in India as on 31 December 2001 was 1.20 crore, out of which, 50 lakh were in Assam.
The statement was retracted in 2004 following this clarification:
“The clarificatory note made it clear that the reported figures were not based on any comprehensive or sample study but were based on hearsay and that too from interested parties.”
Despite the clarification, the statement of the home ministry made in Parliament was quoted in the judgment delivered by the NRC monitoring Bench of the Supreme Court in 2014.
The NRC final list has proved that S.K. Sinha was wrong, it proved the imaginary numbers of Inderjit Gupta to be exaggerated. Did they lie to the nation and stoke hatred against a certain section of citizens? If yes, didn’t they betray the Constitution on which they took oath?
Criticisms by the BJP
After the final draft of the NRC was published in July 2018, leaders of the Assam unit of the BJP started casting aspersions on the NRC, by repeatedly stating that lakhs of Bangladeshis have been included in the draft NRC. BJP MLA Shiladitya Dev continuously attacked the NRC. He said the NRC would legalise illegal Bangladeshi Muslims. Comparatively lesser exclusion of people in the border districts was used by the BJP to discredit the NRC process. Himanta Biswa Sarma said, “Not enough names have been cut in Hailakandi, Karimganj, Dhubri, Goalpara [districts]…. The whole point of the NRC has become futile.”
Assam CM Sarbananda Sonowal even went to the extent of saying that legislative measures could be explored in case of wrongful inclusion and exclusion. As the date of the publication of the final NRC list approached, the attack on the NRC by the BJP became more severe. The BJP state president Ranjeet Kumar Dass recently said, “Be ready for an NRC that has full of names of foreigners and excludes many Indians.”
It is pertinent to mention here that although the NRC is monitored by the Supreme Court, it is executed by government employees under the leadership of the state coordinator. Despite that, when the BJP realised the NRC won’t serve their purpose, they started questioning it. But the majority in Assam, including those affected by the exercise, continues to support a free, fair and credible NRC.
I have been conducting awareness programmes on the filling of the NRC application forms in different districts of Assam. Although the process was complex, there was widespread support for the NRC as people wanted closure after decades of harassment and persecution in the name of illegal migrants. The fact that the entire process is monitored by the Supreme Court gave people confidence that it would not be like the earlier arbitrary exercises carried out by the Assam Border Police and the Election Commission.
It is a fact that the four-year-long process was not easy. Searching legacy data, filling up application forms, standing in the long queue outside the NRC Seva Kendra, attending several rounds of hearing, was painful and time-consuming. Productivity of people came down, particularly the poor were hit economically. People still peacefully took part in the entire process.
During the entire process, two episodes caused unimaginable harassment.
First, the false and malicious ‘objections’ filed by various organisations. Before the 31 December 2018 deadline, around 3 lakh objections were filed against people who were included in the final draft of the NRC. Almost all of these objections were filed on the last day of filing. Before the last day, the number of objections was less than 800. Objections were filed against everyone from 5-year-old children to old and ailing citizens.
Notices were sent to people against whom objections were filed, including their family members to depose as witnesses. Many families sold their cattle and savings to hire buses and attend the objection hearings. According to the SOP, both objector and objectee should appear in the hearing. But objectors almost never showed up and hearings were decided ex parte.
The second episode was when notices were issued to thousands of people in the first week of August, only 24-48 hours before their hearings at places 300-400 km away. Overnight people sold their cattle and ornaments to hire vehicles and attend it. Four people died in different accidents while travelling. On the midnight of 5 August, a bus carrying 24 passengers from Kamrup to Golaghat (around 300 km away) was hit by a truck carrying molten tar near Guwahati.
The passengers sustained burn injuries. They were treated at Gauhati Medical College Hospital. When I reached the hospital past midnight, a woman was holding her 3-year-old daughter, both covered in molten tar. She was crying and asked what will happen to her NRC hearing scheduled next morning. Few incidents depict the urge for an NRC more than this. Locals in upper Assam district, where they went to attend hearings, took care of them by providing food, medicine and places to rest.
NRC as a tool to correct historical wrongs
Most see the NRC as the final citizenship test and a potential tool to stop decades of harassment and persecution in the name of detecting foreigners.
Although it has been propagated that Assam is flooded with illegal migrants and people here don’t have documents, history tells a different story.
All these decades, people who were abused as illegal migrants or Bangladeshis have migrated to present-day Assam from undivided Bengal and then East Bengal.
Migration started from Bengal to present-day Assam in the mid-19th century. There was large-scale migration after the Partition of Bengal. The British encouraged Bengali Muslims farmers to migrate to uncultivated stretched of the Brahmaputra Valley, after several districts of East Bengal had reached limits of cultivation.
These Muslim peasants worked very hard and brought previously uncultivated lands under cultivation. In the 1931 Census, the superintendent had said that more than half a million people had migrated. Radhakamal Mukherjee in his book, Changing face of Bengal, wrote that between 1900 and 1930, at least one million Bengalis peasants went to Assam and brought new land under cultivation.
The British adopted the ‘Line System’ in 1920 in the districts of Kamrup and Nowgong to stop Bengali Muslim immigrants from acquiring certain areas. In 1928, they came out with the ‘Colonisation Scheme’ that allowed immigrants to settle in large areas of the Nowgong district. These are proof of the scale of immigration, pre-Partition.
India’s first President Rajendra Prasad toured upper Assam immediately after the 41st session of the Congress, which was held in Gauhati in the year 1926. In his autobiography, he writes:
“In my tour of Assam I found large tracts of uncultivated land in Nowgong district. There were no signs of human habitation for miles around, except a few huts here and there. There was no shortage of water and the land was covered with green foliage. There was no sign of the land ever having been ploughed. I was told that there was plenty of such land in the province and, according to the law of the land, anyone who brought the land under the plough and settled there became the owner.
The adjoining Mymensingh district of Bengal (now in East Pakistan) is thickly populated area. Many Muslim families migrated from Mymensingh to Nowgong and settled on the land and when they began cultivation became its owners. As more and more unused land came under the plough, the ratio of the Muslim population began to rise.
When I heard of all this, I had an idea. Chapra is one of the most densely populated districts of Bihar and its people generally have to go out of the province in search of work every year. Thousands of them go to Assam and work as labourers and after earning some money return to their homes. They never thought of settling down in Assam. I saw Biharis and men from Chapra almost everywhere in Assam. I thought that if, instead of just going to Assam to earn something and returning to Chapra, they permanently settled down on the land there, not only would their future be assured, but also the pressure on the land would be reduced in Chapra.
I sounded the Assamese on this subject and they welcomed it. They told me that they liked the Biharis labourers and did not like the people of Mymensingh, whose treatment of local population was far from satisfactory. Some thought it better to have the Hindus of Bihar than Muslims of Mymensingh. The communal feeling was uppermost in men’s minds then and Assam was no exception. They welcomed the idea also because by themselves the Assamese were unable to bring the land under the plough. But the influx of Muslims from Mymensingh was upsetting the population ratio and the Assamese wanted to retain a majority in the Brahmaputra Valley. The influx from Muymesigh could be countered only by allowing Bihar Hindus to settle down on the land.” (Autobiography, Rajendra Prasad, Penguin India, Pg 252-253)
In 1951, the Muslim population in Assam was 24.7 per cent. The people, India’s first president is referring to, are the one often abused as Bangladeshis. The NRC only proved history right.
Over 19 lakh names have been excluded from the NRC. Apart from people who couldn’t prove their presence or their ancestors’ in the territory of India before 24 March 1971, a large number of declared “foreigners”, “doubtful voters” and their children have been excluded from the NRC list. Following the order on 13 August 2019, the Supreme Court and the state coordinator of the NRC issued a letter to all deputy commissioners stating that—
a) For any NRC applicants/claimants (irrespective of the year of birth), if parent/legacy person through who eligibility is sought to be established is doubtful voters (DV) or declared foreigners (DF) or pending before Foreigners Tribunal (PFT), then such persons will not be included in NRC irrespective of the status of the other parent.
b) For those persons born before 3 December 2004, if the parentage /legacy persons through whom legacy is drawn is not DV or DF or PFT and is found eligible for inclusion in NRC, but the other parents from whom legacy is not drawn is a DV or DF or PFT, then such descendants may be included in NRC.
c) For those persons who are born on after 3 December 2004, they will not be included in NRC if any of the parents is DV or DF or PFT even if the parent from whom legacy is drawn is clear from all angles.
In 1997, more than 3 lakh people were marked as “doubtful voters” overnight without any prior investigation whatsoever. More were added in later years. Majority of the “doubtful voters” were women, mostly newly-wed. Although many cases were already adjudicated, some could prove their citizenship, others not. Many people marked as “doubtful voters” are still disenfranchised and didn’t receive any notice from Foreigners Tribunal to prove their citizenship. Their children are now not in the NRC list. Most marked as “doubtful voters” are poor and illiterate and have a high fertility rate. It is apparent that a large number of children have been excluded from the NRC.
All excluded people have to appear before the Foreigners Tribunal. So, it is more important than ever that the tribunal acts in a fair and judicious manner and adjudicate each and every case following due process of law.
On 19 July, in reply to unstarred question No-3804, the minister of state of home affairs stated in 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, very often people are 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 citizenship.
Fair trial is a part of the fundamental rights under Article 21 of the Constitution, and the tribunal has to ensure that fundamental rights of even a single person are not violated. The Constitution itself will be put to test in each and every case before the Foreigners Tribunal.
Deportation, detention and human rights
Although those excluded from the final NRC will not be detained immediately, but once a person is declared as “foreigner”, he or she may be detained, with an intent to deport. There are already around 1,100 detainees in six detention centres across Assam.
Before deporting a foreigner, the country of origin has to confirm the nationality of the foreigner. According to the affidavit by the state of Assam filed in February 2019 before the Supreme Court in WP (C) 1045/2018, only four declared foreigners have been deported since 2013. In a recent visit to Dhaka, external affairs minister S. Jaishankar said that the NRC is India’s internal problem. To date, India has not spoken to Bangladesh about deporting “declared foreigners”.
If a person is detained after being declared a “foreigner”, and if he or she doesn’t get any relief from higher judicial forums, he or she will be detained indefinitely, if he or she can’t be deported. Indefinite detention is inherently illegal and inhuman. A “foreigner” detained indefinitely is denied a dignified life, and also a dignified death.
The Assam government has said in the assembly that in the last 3-4 years alone 25 detainees have died inside detention centre. The Supreme Court vide its order on 10 May in WP(C) 1045 /2018 has directed to release those detenues who have completed more than three years in detention. This order has rightly put an end to indefinite detention. Although three years of detention without any chance of getting deported is not reasonable.
A large number of cases will be now tried before 321 Foreigners Tribunals. Many the NRC has excluded could be declared as “foreigners”. It has become apparent that Bangladesh will not accept “declared foreigners” as their citizens; this will make “declared foreigners” stateless persons.
Having been denied the right to a nationality by any state, stateless persons will be vulnerable to various kind of abuses. Stateless persons are at the risk of being deprived of access to basic rights, including access to education, health care, employment, the right to buy or sell property, open bank accounts, or even get married. India is not a contracting party to the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness. But Articles 14 and 21 of the Constitution applies to both citizens and non-citizens.
The Supreme Court in NHRC vs. State of Arunachal Pradesh 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 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.
Article 21 of the Indian Constitution should be the guiding force to treat those that the NRC excludes or “declared foreigners” fairly under the rule of law. The four-year exercise of NRC has come at a huge social price already. Care must now be taken to ensure that the list does not unleash a fresh wave of anxiety and polarisation among the people of Assam.
The author is a lawyer at Gauhati High Court and is helping many who are struggling in Assam’s detention centres. Views are personal.