By Aman Wadud*
Following the outrage post the controversial May 2 order of the NRC (click HERE), that directed relatives of those designated as Declared Foreigners (DF) to be kept ‘pending’ and not included in the National Register of Citizens (NRC)**, even if they satisfy requirements, the state coordinator of the NRC was compelled to issue a clarification.
On May 25, 2018, the State Coordinator of the NRC issued another order stating that, “With reference to the subject cited above and in continuation with the letter under reference, it is hereby clarified that recording of decision as ‘Hold’ by Local Registrar of Citizen Registration (LRCRs) for any such person, namely , brothers , sisters and other family members of Declared Foreigners (DF) will be taken only after receipt of information from respective SP(Border) that reference has been made of such person to the Foreigners Tribunals.”
While in some way this tweaking of the earlier May 2, 2018 order is welcome, the constant shifting of the goal post (a regular and questionable practice over the past months), has again generated confusion. The NRC, under Supreme Court supervision has been entrusted with responsibility of finalising the list of citizens of nearly 3.29 crores people of Assam. But this constant and almost arbitrary change of stands has added to confusion and fear psychosis among the people. On the ground the Superintendent of Police (Border) in some districts have already started collecting names of siblings and family members of Declared Foreigners without any investigation whatsoever.
On May 2, 2018 the State Coordinator of the NRC issued an order to all Deputy Commissioners in all districts of Assam asking to keep the names of brothers, sisters and other family members of Declared Foreigners (DF) ‘pending’. This order (that may be read here) issued by the State Coordinator of NRC to all Deputy Commissioner and District Registrar of Citizen Registration (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 plain words, this order, that misrepresents the efforts underway, means that 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 three Judge bench of Hon’ble Gauhati High Court had earlier issued guidelines on how to send Reference cases to the Foreigners Tribunal. The High Court in the State of Assam vs Moslem Mondal ha specified that:
“Fair investigation and fair trial being the basic fundamental/human right of a person, which are concomitant to preservation of the fundamental right of a person under Article 21 of the Constitution, there has to be a fair and proper investigation by the investigating agency before making a reference to the Tribunal. In such investigation the attempt has to be made to find out the person against whom the investigation is made, so that the person concerned is given the opportunity to demonstrate at that stage itself that he is not a foreigner.”
The Gauhati High Court’s Order further states that:
“The reference by the referral authority also cannot be mechanical. The referral authority has to apply his mind on the materials collected by the investigating officer during investigation and make the reference on being satisfied that there are grounds for making such reference. The referral authority, however, need not pass a detailed order recording his satisfaction. An order agreeing with the investigation would suffice. The referral authority also, while making the reference, shall produce all the materials collected during investigation before the Tribunal, as the Tribunal is required prima facie to satisfy itself about the existence of the main grounds before issuing the notice to the proceedee.”
The Superintendent of Police (B) comes under the Home Ministry and presently is under the BJP-ruled government of Assam. This is a government which rode to power spewing venom against Muslims, even stating during the election campaign, that 35 constituencies are dominated by Bangladeshi Muslims!
The prevailing fear among the minorities is that this government –disregarding Supreme Court directives, even subverting them — will pressurise all local administrative authorities presently under them to bend the rule, disregard the above mentioned judgement of the Gauhati High Court and send more cases under ‘Reference Cases’ without any investigation whatsoever. That is exactly what is happening right now.
There is a fear and awful chance that all siblings and family members of declared foreigners against whom fresh References are being sent will not find their names in the NRC following directions of the Order dated May 25, 2018.
*Lawyer based in Guwahati. Source: https://sabrangindia.in/
**The National Register for Citizens (NRC), a record of ‘legitimate’ Indian citizens living in Assam, is being updated for the first time since 1951. The ostensible objective is to weed out ‘Illegal Bangladeshi immigrants’