By Aman Wadud*
In a particularly dangerous twist to the citizenship controversy in Assam, lakhs of Indians could lose their legitimate citizenship when their names are excluded from the National Register of Citizens (NRC). A new order issued by the NRC authorities could lead to the exclusion of even legitimate Indian citizens from the NRC if they are related to people designated as Declared Foreigners (DF). An estimated 2 million stand to be affected by this order alone!
On May 2, 2018 the State Coordinator of the NRC issued an order to all Deputy Commissioners of respective districts of Assam asking to keep the names of brothers, sisters and other family members of Declared Foreigners (DF) pending. If the NRC State Coordinator’s order dated May 2, 2017 is followed in letter and spirit, it will ensure more than two million names of Indian citizens are dropped from the NRC. The order issued by the State Coordinator of NRC to all Deputy Commissioners and DRCR of all districts states that:
“As per this Judgement, the Superintendent of Police (B) are required to make references of such persons, namely, brothers, sisters and other family members of Declared Foreigners (DF) to the Foreigners Tribunals and their names are accordingly not be included in the NRC until finalisation of such references. LRCRs will have to keep eligibility status of all such persons pending till decision on their Indian Citizenship is confirmed by the concerned Foreigners Tribunal similar to the procedure for D-voters. As such LRCRs will have to record their decisions as “Hold” with LRCR Remarks recorded as “DFS”. DFS will mean Siblings and other Family Members of Declared Foreigners (DFs).”
In other words if one person from a family has been declared a “foreigner” by a Foreigners Tribunal, the names of his siblings and other family members will not feature in the NRC.
A judgement of the Hon’ble Gauhati Court dated a year ago, May 2, 2017 doubted citizenship of siblings and other family members of a person already declared as “foreigner” by the Foreigners Tribunal. The Hon’ble Gauhati High Court in WP(C) 360/2017 stated that:
“Once a proceedee is declared to be a foreigner it would only be a logical corollary to such declaration that his brothers, sisters and other family members would also be foreigners. Therefore, it becomes the duty of the jurisdictional Superintendent of Police (B) to cause enquiry in respect of the brothers, sisters and other family members of the declared foreigners and thereafter, to make a reference to the competent Foreigners’ Tribunal against such brothers, sisters and other family members. As a matter of fact, State may issue general direction to all the Superintendents of Police (Border) to initiate follow up steps as above.”
Nowhere in this judgement did the Hon’ble High Court direct the State Coordinator of NRC to drop names of brothers, sisters and other family members of the declared foreigners from the NRC.
NRC is a process created to differentiate between citizens and foreigners, so why can’t NRC give everyone a fair chance to prove their citizenship through its very stringent and scientific process? Or does the NRC not trust its own system?
Since 1985, around one lakh (1,00,000) people have been declared as foreigners. Approximately 20,000 orders of Tribunal (mostly ex parte, that is issued without hearing both sides) have been set aside by different judicial forums. However, there are still 80 thousand declared “foreigners”. Let’s assume, on an average a so-called “foreigner” has 4 siblings. That makes a total of three lakh twenty thousand (3,20,000) siblings. Along with the declared “foreigners”, this makes up a total of four lakh (4,00,000) people. The family members of those 4 lakh people will include their children and grandchildren. On an average at least 6 family members of each person (very liberal estimate considering higher fertility rate among poor and illiterate people who have been declared as“foreigners”) thus it makes over two million people!
Timing of the Order
Now let us examine the timing of the order. On May 2, 2018, exactly a year after the High Court Order, the State Coordinator of the NRC asked the executing authorities to keep the names of siblings and other family members of a declared “foreigner” as pending. The State coordinator of NRC passed this order at a time when the complete list is scheduled to be made public in a few days. Was the order passed at the final moment to ensure no one can approach Supreme Court challenging the order dated May 2, 2018 before the NRC authorities comes up with its finalised list?
Moreover, the Supreme Court’s summer vacation started on May 18, 2018. It was on May 8, 2018 that the bench of the Supreme Court (SC) monitoring the NRC heard the matter. Although the State coordinator of NRC normally always remains present before the SC when the bench sits for monitoring the NRC process, the State coordinator of NRC didn’t make any mention about his order dated 02-05-2018 before the Supreme Court monitoring bench. Shouldn’t the State Coordinator of NRC inform the Supreme Court Bench about his order, which will arbitrarily drop names of lakhs of genuine Indian citizens from the final NRC?
The present BJP government in Assam has been cornered and on the defensive around the Citizenship Amendment Bill, 2016, which promises to grant citizenship to ‘illegal’ immigrants based on religion. The leadership of the party in power had no answers to the mounting protests around the Bill. Soon after the May 2, 2018 order came to light however, state leaders of the BJP have begun confidently stating that ‘Assam will know real enemy after NRC list comes out.’
BJP govt also stated that they will express their views only after the NRC is out. Majority people declared as “foreigner” are poor Muslims, the BJP leaders are aware that this arbitrary order will affect mostly Muslim families, post the order dated May 2, 2018 the confidence of BJP has soared like never before, as if they have succeeded in punching the blow they always wanted. A free and fair NRC would have left the BJP and other vested interested parties no place to hide their face; since the decade-long propaganda of the party would stand exposed.
The NRC is being updated as per provisions of the Citizenship Act, 1955 and other Rules. The last order dated May 2, 2018 is completely contradictory to Citizenship Act 1955. Sec 3 (1)(a) of the Citizenship Act states that every person born in India on or after the 26th day of January, 1950, but before the 1st day of July, 1987 shall be a citizen of India by birth. Now even if a person is declared as “foreigner”, his siblings might have born in India before the 1st day of July, 1987, which makes them a citizen of India by birth. Moreover, say a person actually illegally infiltrated in to India post March 25, 1971 and finally declared a “foreigner” by Tribunal, his siblings might have entered before the cut-off date as per sec 6A of the Citizenship Act,1955, that does not make them a foreigner.
There are many cases where one member of a family is declared as “foreigner” and the same Tribunal has declared their siblings as Indian citizens. So keeping the names of siblings of so-called “foreigners” pending in the NRC is illegal and contradictory to relevant statutes. This will only ensure unimaginable harassment of Indian citizens and make them stateless without any prior investigation whatsoever.
The Gauhati High Court vide order judgement May 2, 2017 has asked the jurisdictional Superintendent of Police (B) to enquire into the status of the brothers, sisters and other family members of the declared foreigners and thereafter, to make a reference to the competent Foreigners’ Tribunal. It is only logical that a trial should be preceded by a fair investigation. The Supreme Court and even the Gauhati High Court in a catena of judgements have stated that fair investigation is part and parcel of fundamental rights.
The May 2, 2017 judgement of the Hon’ble Gauhati High Court mentions about an enquiry by jurisdictional Superintendent of Police (B) before sending references to the Tribunal. If the jurisdictional Superintendent of Police (B) has already made an enquiry and the case is before the Foreigners Tribunal, it would have been logical on the part of the State coordinator NRC to ask its executing authorities to keep those names pending till the reference is disposed of by the Foreigners’ Tribunal. But here the jurisdictional Superintendent of Police (B) did not even initiate any enquiry against siblings and other family members of a “foreigner”, thus without any enquiry and reference to Foreigners Tribunal, their names will not feature in the NRC till their citizenship is not confirmed by the Tribunal. Where is the fundamental right to a fair investigation before sending the cases to Foreigners Tribunal for a fair trial?
The order dated May 2, 2018 also equates the siblings and family members of declared “foreigners” with D-voters aka “doubtful voters”. The Election commission of India in 1997 launched a scrutiny of voters’ list. If the Commission came across any voter whose citizenship documents appeared to be inadequate, the Commission marked them as ‘D’ voter or ‘Doubtful’ voter. Although the entire process is arbitrary but at least the Election Commission shows that there has been an investigation before marking a person as doubtful voter. How can NRC equate doubtful voters with siblings and family members of a declared “foreigner” against whom no enquiry has been done?
If names of hundreds of thousands of citizens are actually dropped after the May 2, 2018 order of the State coordinator NRC, they will have to go through trial to prove their citizenship before Foreigners Tribunal. Earlier only cases “investigated” by the Election Commission and Assam border police were ever referred to the Foreigners Tribunal. It is no surprise why authorities want to send these hundreds of thousands of cases for trial before the Tribunal.
Who are these “foreigners”?
The Assam Border Police Organisation has its presence in all Police stations of Assam. Ideally its job is to survey areas under its jurisdiction. If they come across any “illegal immigrant” the Border Police is expected to ask for citizenship documents and give reasonable time to submit such documents. If such people cannot provide citizenship documents, the Border Police is empowered to refer such cases (similar to a Charge sheet) to the Foreigners’ Tribunal.
But very often the Border Police randomly picks names of people from voters’ list and frames them as “illegal immigrants” without any investigation. They just record that they approached the concerned person and he failed to show any citizenship document. In many cases the Border Police approach poor and illiterate citizens, mostly daily wage labourers, rickshawallas , and even beggars; take their thumb impression on blank paper, prepare a case alleging such people to be “illegal immigrants” and refer the case to the Foreigners’ Tribunal.
The Election commission of India in 1997 launched a scrutiny of voters’ list. If the Commission came across any voter whose citizenship documents appeared to be inadequate, the Commission marked them as ‘D’ voter or ‘Doubtful’ voter. The ‘D’ voters cannot vote; they are disenfranchised. They were also deprived of benefits of the Public Distribution System. But significantly, the Election Commission framed citizens as ‘doubtful’ voters arbitrarily and randomly without meeting them and without any investigation whatsoever!
The ‘D’ from the voters’ list can be removed if the Foreigners Tribunal hold such people as Indian citizens after a full-fledged trial. The Election Commission sends such ‘D’ voter cases to the Superintendent of Police (Border) of respective districts, who refer the cases to the Foreigners Tribunal for its opinion on status of citizenship of the so called ‘D’ voter. The Foreigners Tribunal send notice to the concerned person to appear before it with citizenship documents and prove his citizenship. Earlier most people who appeared before the Foreigners’ Tribunal have been held as Indian citizens. But after BJP came to power there is surprising change in the trend.
The Foreigners Tribunals frequently hold people as “foreigners” because of minor anomalies of name and age in voters’ lists and other citizenship documents, or for not mentioning certain facts in their written statement etc. Mostly people have been held “foreigners” on technical grounds and because they did not have competent legal support. In many cases multiple notices are sent to members of same family. There are cases of different members of the same family getting declared as Indian citizen and ‘foreigner’ based on the same set of documents. Many people, who have proved their citizenship once, have received notices again from Foreigners Tribunal to prove their citizenship. Even people from UP and Bihar are also being held as “foreigners” or “Bangladeshis”!
Till December 2016, 80,194 people were declared foreigners, out of which 26,026 people were declared “foreigners” by ex parte order as under Section 9 of the Foreigners Act, 1946, the burden of proof is on the accused to prove citizenship. The hard truth remains- just because a person is declared as “foreigner” by the Foreigners’ Tribunal doesn’t necessarily mean they illegally entered India after March 25, 1971. It only means they have failed to prove citizenship because the Foreigners’ Tribunal declare a person a “foreigner” because of discrepancy, often minor, of age and spelling errors in their name or name in the documents of parents or grandparents through whom they claim citizenship, and also for not mentioning certain facts in the pleadings. At the end of the day Indian citizens are being declared as “foreigner” on hyper technical grounds.
After the BJP came to power, Chief Minister Sarbananda Sonowal met all Foreigners’ Tribunal members and said that the Tribunal members had got a golden opportunity to work for a national cause and they should not let go of such an opportunity, though the Chief Minister meeting members of a judicial body is ultra vires to Article 50 of the Constitution of India.
The services of these judicial officers are on contractual basis for two years or are extended from time to time on need and performance basis. On June 21, 2017, the state government showed the door to 19 members of the Foreigners Tribunals for their “under-performance” over the last two years. Further, the home department has also issued strict warning to 15 more members of the Foreigners’ Tribunal asking them to improve their efficacy. The 19 Tribunal members approached the Hon’ble Gauhati High Court.
By its judgment dated October 22, 2017, the Gauhati High Court has set aside the termination and stated that the assessment of the performance cannot be done by the government and the Gauhati Court should asses the performance of the members of the Foreigners Tribunal. Lawyers who regularly appeared before these 19 members say that they were judicious in their approach and were holding people as Indian citizens if they had proper documents. So, basically the BJP government was annoyed with the fact that these 19 Tribunal members were not declaring Indian citizens to be “foreigners”.
Under the BJP rule, results of Foreigners Tribunal have seen a surprising change. Till December 2016, 80,194 people had been declared as foreigners since 1985, but the number increased to 93,628 by November 2017. In just eleven months, 13,434 people have been declared as “foreigners”. To date, the number must have crossed one lakh.
Ask any lawyer who appears before Foreigners Tribunal regularly, and they will tell you how the attitude of the Tribunal has changed over the past one year. The pressure on the Tribunal members has become very apparent. There are one hundred Tribunals across Assam. The Hon’ble Supreme Court has increased the number of Tribunal from 36 to 100 to detect foreigners and not to declare Indian citizens as foreigners.
Most tragically, many Indian citizens are being declared as foreigners making them stateless. The people whose names do not appear in the NRC will have to get their name cleared from Foreigners’ Tribunal after a full-fledged trial. If people are continued to be declared as “foreigner” for ridiculously minor and common anomalies in their documents, most of the people will fail the acid test to prove their citizenship.
All this while, people had great hope because the updating of the NRC is being monitored by the Hon’ble Supreme Court. The process of updating the NRC is not faulty. If a free and fair NRC is published, following Supreme Court’s orders and judgment by letter and spirit, no Indian citizen’s name will be dropped. But the May 2, 2018 order by the State Coordinator of NRC will deprive free and fair chance to the siblings and other family members of a declared “foreigner” to prove their citizenship through NRC. The result will be humanitarian crisis of massive proportions. This will only create more problems than it solves.
*Lawyer based in Guwahati. Source: https://cjp.org.in/