Assam: How NRC intersects with existing citizenship determination processes

As notified by the MHA, those excluded from the final NRC have to appeal at an FT within 120 days of exclusion.

The stories of two soldiers who recently hit national headlines are illustrative of how this intersection stands to cause exclusion from the final NRC.

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Mohammad Sanaullah, 52

The Bengal-origin Muslim of Assam retired as subedar with Corps of Electronics and Mechanical Engineers (EME) in August 2017 after serving the Army for 30 years. He hit headlines in May after being declared an “illegal foreigner” and put in a detention camp. He was granted bail days later by the Gauhati High Court.

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After investigating him as a suspected illegal foreigner in 2008-09, the border wing of Assam Police lodged a “reference” case against him at an FT and he failed to prove his Indian citizenship. He said the investigation was fabricated. Even as the case continues at the High Court, Sanaullah’s name will not be in the updated NRC —- a “declared foreigner” cannot be included in the NRC.

“Had the FT case by border police not been there, I would have made it to the NRC. All my documents are in place,” said Sanaullah.

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According to state government data presented in an affidavit to the SC and in the Assembly this year, FTs declared 1,03,764 people foreigners between 1985 and August 2018.

Mazibur Rahman, 50

An Assamese Muslim of Golaghat district and a serving BSF man posted in Punjab, Rahman and his wife were declared “illegal foreigners” in December 2018. He made news earlier this month when his family learned of the development and hired a lawyer to appeal in the HC.

A Golaghat police officer said Rahman was “referred” to the FT as a suspected illegal foreigner based on a report by the local electoral registration officer (ERO), which was checked and referred as the same by the border police in 2008. “It is essentially a D-Voter case. A notice was issued by FT last year. Now the system of EROs marking people D is gone, but “references” of old cases still go to FT and notices are served,” the officer said.

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D-Voter category was introduced in Assam in 1997 to mark people in electoral rolls who were supposedly unable to prove citizenship during verification. Currently there are 1.2 lakh D-Voters in Assam.

“Rahman’s family is indigenous Muslim. They have land patta documents dating back to 1935. He and his wife will not be included in the NRC on August 31. We are appealing in the HC,” Nekibur Zaman, Rahman’s lawyer, said.

Zaman pointed out another intricacy in Rahman’s FT order: it was “ex-parte”. Section 9 of the Foreigners Act says that the onus of proving that a person is not a foreigner lies on the person. Thus, the “accused” has to prove he was an Indian and when he/she does not appear, the member can proceed “ex-parte”.

Earlier this year, MoS for Home G K Reddy told Parliament that FTs in Assam have declared 63,959 people foreigners through ex-parte proceedings between 1985 and February 28, 2019.

Politicians and community leaders accept that many exclusions from the final NRC will be due to the intersection with existing mechanisms.

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Shiladitya Dev, BJP MLA from Hojai —- which accounted for the highest exclusion among districts from the draft NRC according to government data —- said, “The EC, FT and NRC are simultaneously deciding who is a foreigner. Many people who were randomly marked D-Voters will be out of the NRC. There can be a citizen and a foreigner —- what is ‘doubtful’ voter? As for the FT, we all know their ‘sincerity’ —- a vast majority of cases are actually ex-parte, showing that the accused did not get a chance to present his case.”

Azizur Rahman, advisor to All Assam Minority Students’ Union (AAMSU), one of the stakeholders in the NRC updation case, said that in 2013 they made a suggestion to the SC in this regard. “We had said that since FT and NRC both have quasi-judicial powers, if someone can prove his/her Indian citizenship through documents in NRC, then that person should be accepted as an Indian citizen. But our suggestion was discarded,” he said.

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In May this year, the SC said that an FT order declaring a person illegal foreigner would prevail over the NRC inclusion or exclusion.

Meanwhile, to streamline the parallel processes, the state will roll out a centralised digital database —- called e-Foreigners’ Tribunal (e-FT) —- comprising all records pertaining to suspected illegal foreigners from FTs, border police and NRC, and a biometric-based database.

“The e-FT implementation is under way. Eventually, a centralised database will help the overall process,” Assam’s Commissioner and Secretary (Home and Political) Department, Ashutosh Agnihotri, told The Indian Express.