Nurjehan Begum, a 45-year-old home maker from the flood-ravaged Bongaigaon district in northwest Assam, struggles to be optimistic. The devastating combination of the recent floods and COVID-19 lockdown has exacted a significant toll on her family. But that is not her biggest fear: 2020 marks the end of Nurjehan’s three-year confinement in one of Assam’s six dreaded detention centres, the final destination for those who are deprived of their right to citizenship in the state. While she is silent about the trauma she has experienced, Nurjehan does not hesitate to share her deepest fear — her family could now face the same fate, as they too have been excluded from the National Register of Citizens (NRC).
On August 31, 2019, the final list of the NRC in Assam was released. This was considered to be the culmination of decades of strife and agitation in the state over the question of continued presence of “illegal immigrants” and the urgent need to identify and deport them. The NRC was envisaged as a comprehensive record of citizens in Assam, identified by the law of the land as persons who had migrated to Assam before March 25, 1971. The legal home for the NRC is found in the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003. The updation of the NRC was sanctioned by the Supreme Court, which, in 2014, began monitoring the entire process.
Five years, 5,5000 employees, and Rs 1,200 crore were only the visible administrative costs — this does not include the lives that were lost, primarily out of fear of exclusion. The loss of citizenship, after all, is the loss of one of the most crucial rights a person can have; in its absence, one’s entire body of rights disappears. Conversations on the ground revealed that initially, people from across the spectrum agreed on the NRC. People who belong to the ethno-religious category of Bengali-Muslim origin were relieved at the prospect that inclusion in the NRC would end the cloud of suspicion over their heads. On the other end, of the spectrum, the indigenous Assamese population welcomed the NRC as fulfilling the aim of weeding out “immigrants”.
The result of the NRC list has been well documented — 1.9 million people were excluded from its ambit and now face the prospect of filing appeals against this exclusion before the quasi-judicial body known as the Foreigners Tribunal (FT).
Set up in 1964 under the Foreigners (Tribunals) Order, the FT is the main legal body with the power to determine who is a citizen in the context of Assam. As has been extensively documented, this process of citizenship determination is riddled with flaws. The burden of proving one’s status is on the person who faces scrutiny. S/he is expected to provide stringent documentary proof of citizenship, despite there being no clarity from the state on what documents meet this evidentiary standard. (It has been held that Aadhaar cards, PAN cards, land records, birth certificates and passports may not amount to proof.) Oral testimony is frequently disregarded, and the tribunal is quick to dismiss paperwork on flimsy grounds such as minor errors in spelling or dates. The main test of citizenship according to the Tribunal is the ability to trace one’s legacy to a person who had been residing in the state before 1971. Applying such a high standard of documentary evidence flies in the face of the ground realities of the country. Moreover, there are serious concerns around the judicial independence of the tribunals. Members are appointed by the home and political departments of the Assam government, and the performance of tribunal members is incentivised based on the number of persons they declare as foreigners. This implies biases entrenched in the system. As a result, around 1.3 lakh people have been declared foreigners since the inception of the FTs. Like Nurjehan, many declared foreigners are sent to languish in detention centres.
The potential repercussions from the NRC exclusions could be catastrophic. It does not help that the appeals process is fraught with delays; one year on, there is no sign of when this process will begin and decisions such as the re-checking of rejection orders to exclude people only add to the uncertainty.
Vulnerable populations are poised to suffer grave consequences in the absence of legal clarity. For instance, there are multiple instances of children who have been excluded from the NRC. Will they be extended protections as per the law governing juveniles in the country? Will they be separated from their parents and sent to detention if they are unable to prove their citizenship? What guarantees are in place for the protection of their rights? We only have questions to which there seem to be no answers.
The state machinery’s track record is one of see-sawing. In 2019, the Ministry of External Affairs described the NRC process as “statutory, transparent, legal”, a “fair process based on scientific methods”. In almost the same breath, it has called for the NRC to be scrapped. Shifting these goalposts for political gains reflects an extraordinary lack of regard for the people who have been excluded. Those included in the NRC are also waiting for the final list to be gazetted.
The authorities have not been treating this matter with the gravity that it deserves. Justice delayed, as the adage goes, is justice denied. The state needs to take urgent steps to move the NRC process forward as soon as possible and to ensure that guarantees of due processes are in place. Otherwise, in the words of Nurjehan Begum, “citizenship will remain a dark cloud looming over (our) lives”.
This article first appeared in the print edition on September 1, 2020 under the title ‘Year of uncertainty’. Baruah is a Guwahati-based lawyer and graduate student at the Fletcher School of Law and Diplomacy, Boston. Wadud is a Guwahati-based human rights lawyer. Both work with the Justice and Liberty Initiative, which takes on cases of those deprived of citizenship in Assam
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