Insiders, Outsiders and Improper Legalese: Test of Citizenship and ‘Foreigners’ in Assam

Prasenjit Biswas

A large number of Indian citizens who voted and elected governments in Assam as well as the central legislature are subjected to a process of verification of their citizenship documents. Now after verification, if a large number is rendered disenfranchised and stateless, the legal implication is that peoples’ representatives who are elected are elected by illegal electorate. So natural justice demands that these elected representatives cannot hold offices legitimately in case the electorate is found to be ‘foreigners’ and not citizens of India! 

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The first draft of National Registrar of Citizens (NRC) published in the midnight of 1st January, 2018 created more confusions than it resolved. It generated a discourse of Othering and exposed the exceptionalist and exemptional nature of the law-making in the context of Assam. The Citizenship Amendment Rules, 2003 concerning registration of citizens and issuance of identity cards under section 18 of the Citizenship Act, 1955 created an exception in case of Assam by adding a Schedule 4A under which updation of 1951 National Register of Citizens is presently carried out. No other state of the country follows rules laid out in Schedule 4A except Assam. The first draft of updation is now published that called for serious reflection on this whole legal process conducted under the supervision of two-judges bench led by Justice Ranjan Gogoi of the Supreme Court of India.

These special provisions inserted at various stages to the mother Act of 1955 on the ground leads to ‘profiling’ of people in terms of their religious and linguistic identities. Such profiling has a political angle. People who came to Assam until March 24th, 1971 due to referendum and partition of Assam as also due to separation of certain territories such as Khasi and Jaintia hills, Mizo hills etc. from Assam are somehow either accommodated or they have to prove their citizenship once again. Overall, the special provisions Schedule 4A are based on assumptions like ‘original inhabitants’ of Assam, which smacks of an unfounded category within the very idea of citizenship. The nondiscriminatory and equality based notions of citizenship enshrined in the Constitution of India of citizenship of “persons” as enshrined under fundamental rights and the rules framed in 2003 do not quite gel with each other. Special proviso 4A further undermines persons belonging to linguistic and religious minorities, as they are subjected to suspicion and arbitrary process of proving their citizenship by twisting basic presuppositions and principles of “equality before law” that have guided framing of the Indian Constitution.

People waiting to check their names in first draft of NRC publish on 31st December 2017

People waiting to check their names in first draft of NRC publish on 31st December 2017 (Photo: thehindiu.com)

Especially the procedure for verification of documents under the overall execution of the NRC coordinator seems to be a difficult procedure. The documents are sent to issuing authority for verification. There are interesting legal issues here- for how many years an issuing authority is supposed to preserve a copy of the original document issued by them to a client  and whether the issuing authority is legally obligated to re-verify a document at the call of another office such as NRC department. Without taking into account these issues, documents are sent to the issuing authorities. The outcome is that large amount of documents remained unverified and the reason given is that records are not available and manpower for verification exercise too is not readily available with various State and Central governments. Now those whose records remain unverified, they will be subjected to arbitrary administrative hassles, especially when various ethnic bodies are suspect and target those who minority groups as “Bangaladeshis” and who are going to be excluded from updated list.

This is a slippery slope situation that makes the circumstances very grave and punishing for no fault of the victims of this systemic exclusion. It is assumed that those names that are not included are not genuine Indian citizens and god forbid, any genuine Indian citizens excluded due to this cumbersome verification process will have to struggle a long way to get back the status of being a citizen. Such cases will be referred to Foreigners’ Tribunal and after a cumbersome legal process one may be able to get a legal redress. Now politicians take hold of the slippery situation. They have started asserting that no genuine Indian citizen will be excluded without addressing the issue of procedure. That the applicant remains as the possible sufferer at the other end of this process of verification is no one’s concern. Instead, Assam’s former Chief Minister Tarun Gogoi said indigenous people won’t have to bother about such a situation, meaning non-indigenous religious and linguistic minorities only will have to be concerned if they face any such exclusion from updation. Another much celebrated democratic voice from Assam Akhil Gogoi has asserted in Delhi that two crores of Bangladeshis have to be deported from Assam. Noted intellectual Homen Borgohain asserted that certain parts of Assam such a Barak valley, Dhubri and lower Assam have only been parts of Assam’s geography but never a part of History. This is how linguistic and cultural and religious minorities are purged from imagination of Assam in which NRC process adds to the existential fear and agony of being reduced to rightless noncitizen. Recent assertion by Assam Chief Minister that those whose names will not figure in updated NRC, their fundamental rights will be taken away and they will be given only the right to food, shelter and life magnified this existential fear among those who are Indian citizens and whose names may not figure due to an inefficient procedure.

What Homen Borgohain has argued opens up a Pandora’s box. His concern is that it is because of the Bengali speakers of Barak valley and certain other lower Assam areas that Assamese is rendered as the language of minority in Assam. So he argued that Barak valley should be separated from Assam to regain “only the Brahmaputra valley as the land of Axomiya speakers”. It is widely believed in this context that the targets for disenfranchisement and de-citizenization are linguistic and religious minorities whose fears are compounded by a long drawn process of verification without stating any reason why certain documents are found incorrect or kept pending. Much needed transparency and statement of proper reasons for pendency to applicants who assume themselves to be genuine Indian citizens is not shown much respect. Rather the process resorted to arbitrarily drawn procedures by the Executive which are unfriendly and not supported by existing legal framework.

The larger point is that large number of Indian citizens who voted and elected governments in Assam as well as to the central legislature are subjected to this process of verification. Now after verification, a large number is rendered disenfranchised and stateless, the legal implication is that peoples’ representative who are elected are elected by illegal electorate. So natural justice demands that these elected representatives cannot hold offices legitimately in case the electorate is found to be ‘foreigners’ and not citizen of India! While the State NRC coordinator stated before the Supreme Court that in the first draft, the office has verified 2.38 crores cases of roughly 3.40 crores applicants, the draft incorporated only 1. 9 crores of people, keeping out 1.4 crores. This indicates as if a large section within this left over people may prove to be ‘foreigners’ and later they are to be rendered stateless. Before the second draft of the NRC, the coordinator stated that children who are born after 2003, their names will be included provided both their parents’ names and not one of them find a place in the NRC. The basic principle that those who are born in India will be Indian citizens is in the way of getting amended in an extra-legal manner by the Executive. This is legally implausible as the bottomline condition for children to be an Indian citizen is that one of the parents is Indian and the other is not an illegal migrant. A large number of post-2003 children now face this new conundrum. In the first draft, those whose names are part of “legacy data”, available right in the NRC database are excluded, citing that their verification is pending. No one is able to understand how the verification is conducted. Updates in the forms of press statements are yet to be substantiated by disclosure of full information to the applicant in the website.

The situation created its ripple effect in Bengal with Mamata Banerjee pronouncing that Bengal will give shelter to people who would suffer due to such a cumbersome process. She created storm in the tea cup by her repeated pronouncements to this effect. Political opinion in Assam got sharply divided on her protestation.

Overall, the situation needs able handling and skillful mediation to complete the NRC process in a just and fair manner.


Prasenjit Biswas chairs Barak Human Rights’ Protection Committee and is a political analyst.

A version of article was published in The Statesman under the title of “Insiders, Outsiders and Improper Legalese on 15 January 2018.

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