Introduction and Historical Context:

The issue of citizenship is closely connected with the preservation of cultural identity, demography coordination and regional peace. The social contract theory prescribed for the people to repose their faith in a government, and form a contract with them, wherein the people of a state contribute their individual labour and resources into the larger pool of the nation and in exchange the state provides them with sufficient security, infrastructure and basic necessities. Universal understanding exists around that world that each country and its corresponding economy has a resource constraint i.e. a limited amount of resources to support a population, which in turn contribute to the cycle of resource management. Prosperous diaspora of a society provide for the not-so-privileged section through the social security net, the state being the facilitation agent in the process, but there exists a problem when the population appears to blow out of proportion to the production of resources, more so in a country like India with an already existing population battle to fight. The question of refugees and migrants in the state always invokes mixed emotions amongst the people. Various logical explanations are used to either counter or support the cause of such entities. The National Register of Citizens (herein after as ‘NRC’) is a tipping point in the history of the country, its success, failures, achievements, complications can only be pointed out looking at hindsight, maybe, twenty years down the line, but its history does reflect a lot on the motives, actions and mistakes of the administrators of the past, from creating a problem to finding its solution, NRC has been an interesting journey in itself.

Assam as a state has long had its share of experiences with migrations specifically from the states of Bihar, Orissa, and Bengal. The Colonial administrators required manual laborer for the blooming tea industry of the State, with expansion of the economy and renewed trade opportunities Rajasthani Traders found their way into the inner districts of the State, specifically in and around places having tea estates. The discovery of oil and coal deposits prompted the government to transport more labourers from the border districts of Rangpur, Bogra, Mymeshingh, Pabna (Districts of East Bengal Province) etc. Subsequently, the more educated Bengali populace were encouraged to settle in the ‘New Foundland’ of the British Raj and take up job in the lower rung of the administration, teaching and supervision of the local labors.[1]

Such prompted migration had its fair share of advantages like the arrival of cultivation techniques in the Brahmaputra Valley, introduction of multiple cropping, jute cultivation etc. But the major setback was noticed on the demographic scale of the state particularly in the border districts of Goalpara, Nowgong, Darrang, and the capital district of Kamrup.[2]

During the riots and melee following the partition of the Subcontinent, hordes of refugees started arriving in the country, the problem was aggravated in the state of Assam owing to the porous borders and the un-demarcated geography of the hill districts as well as the easy access through the Brahmaputra. In light of the situation, the Central Government passed the Immigrants (Expulsion from Assam) Act, 1950. The act bestowed power on the Central and state government to remove any person from the geographic limits of India, if they deem their presence as ‘detrimental to the interest of general public’ or any specific Schedule Tribe in India. However, an exception was placed over refugees coming to India from Pakistan on grounds of civil disturbance or fear of persecution. This specific exception proved to be a major roadblock in the years to come both for courts of law and the subsequent governments in state and at Centre.

The first exercise towards a NRC was carried out with the Census of 1951 wherein, a NRC was prepared by copying the names, sex, livelihood, age, names of next to kin alongside the house holding data within each village, the finalized registers were kept in the District Commissions’ offices and transferred to Police for verification of illegal immigrants.[3]

Operational Problems:

The lack of passport regulations in the early 1950s nullified any constructive attempt at the expulsion of illegal immigrants. Further the Foreigner’s Act 1946 wasn’t amended in time to include Pakistani nationals within the ambit of Foreigners, the said act was only amended as late as 1957, which brought Pakistani Nationals within the definition of foreigners in the Country. Effectively before the said amendment, Pakistani Nationals were not required to have any additional registration for staying and visiting the territory of India. It was only after this amendment that the Central Govt. issued a notification to deport all Pakistani Nationals staying in the Territory of India without any authority by law. Alongside the aforesaid, the Citizenship Act was passed only in the year 1955, effectively the date from which anyone could have been legally demarcated as a Citizen. All of these problems combined posed a serious administrative and legal lull in the 1950 for any effective action to be taken against the illegal immigrants.

Cognizance of the Problem:

The Census of 1961 was a major point in the history of NRC, it was the first time that the intensity of the problem was reveled for the first time. The census estimated that 2,20,691 infiltrators had crossed the border over into Assam. The people noticed the magnitude of the problem for the first time. The state government notified the police to carry out a search and expulsion operation. For its facilitation, 4 foreigners’ tribunal were setup to adjudicate on matters of illegal immigrants, and issue them ‘Deportation notices’ if found to be illegally residing in India. Following the Foreigners Tribunals Order 1964, the number of tribunals was increased to 9 for quick and effective adjudication of cases. However, following certain Human Rights Concerns and adverse publicity in the International Press, wholesale checking of villages and houses were instructed to be stopped and checking on basis of reasonable and evidentiary suspicion were to be conducted.

In February 1976 the Home Ministry issued a notification regarding the deportation of Bangladeshi Nationals. The Central Govt. instructed the state governments to not deport people who had come to India before March 1971.[4] Effectively, meaning to protect the people who had sought refuge in India during the massacre in East Pakistan.

The Assam Movement and Accord:

The problem of misplaced population and disturbing demography was not new for the people of Assam, but the proportions were realized after the newly independent country of Bangladesh, which emerged as the third player in the refugee crisis, owing to its turbulent political environment and limited opportunities, forced millions to immigrate to India. The numbers were staggering and surprising at the same time, because no one had anticipated the extent of the problem until then.

1977 General elections saw a rather good turnout in the State of Assam, Hiralal Patwari won the Mangaldoi Lok Sabha seat. However, his untimely death prompted a by election for the seat. Wherein it was noticed for the first time that there was a sharp increase in the voters within the voters’ list, an estimated increase of 77,000 new voters[5] most of whom were suspected to be illegal immigrants. For the first time the danger became apparent, the fear of natives turning a numerical minority in their own land was apparent and closer than ever, the new voters could easily swing the results in anyone’s favor undermining the electoral demography and demands of the people. Thus was triggered the Assam Movement in 1979 with the demand of exclusion of all the illegal immigrant names from the voters’ list, with time similar problems of demography shift were noticed in different districts across the State, which prompted the movement to take widespread proportions, which saw 855 martyrs for preservation of cultural identity, linguistic and demographic maintenance of balance. The chief demand for the movement was the identification and expulsion of illegal immigrants from the state of Assam. The movement concluded with the signing of the Assam Accord between the Rajiv Gandhi Administration, Govt. of Assam and All Assam Student Union with certain promises that were made by the government to the agitating students. The status of these promises will be analyzed in subsequent chapters.

Narratives and Chief Problems associated:

One of the chief arguments and the primary narrative used for a Pan India NRC can be found in the scribes of the Assam Movement itself. The primary contention is that of unusual rise in the population figures of a particular religion, a trend which has been studies for several decades from 1971 to 2011 shows a decadal rise of 3% population of a particular community, this is beyond natural explanations, and the only possible and logical reasons derived is that of illegal migration. The fear according to the expected estimates put the year 2040 as the time when the people in Assam will become minorities in their own state.[6] This puts a question on the cultural survival of the people in jeopardy, loss of linguistic identity, black clouds over resources and employment opportunity.[7]

Another major contention is the differential treatment with a particular state, wherein the cutoff date for the Citizenship Act has been placed as March 1948 for other states of the Northeast but the date for Assam has been specified as 25th March 1971, showcasing the intent of the Government of the time, to protect and safeguard the refugees, and making the state of Assam liable for them. Point to be noted is the fact that these actions are independent of any international obligations i.e. the excuse of fulfilling any international obligations can’t be used under Article 51(c)[8] read with Article 253[9] of the Constitution of India, because India is not a signatory to either the UN Refugee Convention 1951 or its Additional Protocols of 1967.

The Hon’ble Supreme Court has gone as far as to say that the Union Government has, by the means of the Illegal Migrants (Determination by Tribunals) Act, 1983 violated Article 355 of the Constitution by failing to protect the Citizens of the State of Assam against the external aggression and internal disturbance created by the hostile influx of refugees from Bangladesh[10](emphasis added).

NRC was created for the first time in the year 1951, but has not been updated since which has essentially been the death of this noble initiative. The records with respect to the same are obsolete, the sample size impractical and the methods ancient to say the least.

A Pan India NRC would also be plagued by regional problems related to identification of immigrants. Unlike Assam, every state in India can’t afford the cutoff date of 1971, the rest of the country still follows the usual date of 1948. Which would make it largely difficult to gather and showcase legacy data for most of the people, be it legitimate inhabitants or illegal immigrants. The problem of inter-state migration would be a major hurdle in the verification of data for NRC, wherein people working in cities away from their birth cities would have to prove their citizenship at two places, however the Hon’ble Supreme Court has relaxed the criterions for people having moved from their birth place to Assam on a permanent basis.[11]

 

 

Legacy data:

Legacy data is the chief indicator that has been used for updating the NRC. But a basic understanding of what Legacy data constitutes would put us on the track of understanding its inherent flaws.

Legacy data is based upon admissible documents, wherein if they can be shown and corroborated, then a person would be declared as a legal citizen of India. Such documents include (as of now)[12]: List A

1.      name of self, or parents, or ancestors in the 1951 NRC, or any electoral roll until 1971

2.      Land and tenancy records

3.      Citizenship Certificate

4.      Permanent Residential Certificate

5.      Refugee Registration Certificate

6.      Passport

7.      LIC Policy

8.      Any Govt. issued License/ Certificate

9.      Govt. Service employment certificate

10.  Bank/ Post office account

11.  Birth Certificate

12.  Board/University Educational Certificate

13.  Court Records/ Processes

Two additional documents: Ration cards (issued before 24th March 1971) and Circle officer certificate with respect to married migrating women can be accepted with corroborative evidence of the above documents.

If in case a person is unable to find his/her name in any of the List A document but has an ancestor within List A eligibility, then a List B document establishing relationship with the ancestor need to be produced:

1.      Birth Certificate

2.      Land Document

3.      Board/University Certificate

4.      Bank/LIC/Post Office Records

5.      Circle Officer/GP Sec. certificate in case of Married Woman

6.      Electoral Roll

7.      Ration Card

8.      Any other legally acceptable document

The list is indicatively exhaustive if not totally. The instances of rampart corruption in the country[13] and possibility of forgery of documents is a general rule rather than an exception at some point or the other.

The legacy data as incorporated in the NRC list for Assam is based upon the original NRC of 1951 and subsequent electoral rolls until 1971.[14] However a similar experiment in the nation would require a legacy data update from 1948 onwards with no cutoff date or any criteria to determine such date, since there has not been a single watershed event as drastic as Bangladesh Liberation that any other part of the country has been subjected to, except the Tamil Eelam Movement (but the People and Govt. of Tamil Nadu were promoters rather than opposers of sheltering the refugees), making it nearly impossible to figure out who is an illegal immigrant because appearance of name in even a single electoral list or any of the said document make a person a legible citizen.

This has been one of the chief criticisms of the NRC Update process, the exhaustive list of documents being considered. Primary issue with such documents is that the issuing authorities at that time didn’t have such strict regulations for issuance of the documents back in the 1960s and 70s making them easily accessible for implementation of the Social Welfare Policy of the Government.

Porous borders remain a primary issue while discussing illegal immigrants. India share a long coastline and land border with multiple countries, the security is lax more often than not. The borders are not as concrete as standards would expect to be. Until rigid border control methods are not implemented and border patrol made effective, NRC would be an exercise in wastage of time and money.

The Question of ‘Now What’?

Even if an idealistic assumption is made that the Pan India NRC is successful in identifying majority of illegal immigrants in the Country, and after passing through a lengthy and time-consuming process of adjudications and appeals, finally a conclusion over the question of nationality is reached. The entire point of this exercise remains unclear.

The IMDT Act, controversial is its applicability and effectiveness, did declare 29,700 people as foreigners and ordered for their deportation post the 1971 deadline. However, only 2442 people were actually deported back.[15] In such a case scenario what remains the point of the effort.

The normal procedure followed to date in cases of deportation is: the identified foreigners are handed over to the BSF, who take them under custody and keep them in a detention center. In the meantime, BSF take up the matter with Border Guards of Bangladesh (BGB) who go through their own verification and cross verification process. To alternatives remain with the BSF: push back and deportation. Both are different in the sense that ‘deportation’ necessitates the acceptance of the person by the concerned country, but ‘push back’ doesn’t necessitate acceptance, the latter being an adverse scenario wherein the person is often left stateless.

In absence of a formal agreement between India and Bangladesh or any other country for that matter, requires diplomatic channels to function overtime and look for a solution. However, in cases like that of Bangladesh, wherein an express denial to accept the illegal immigrants back, create an adverse scenario for the people trapped in this vicious cycle.

Life in detention camps remain the only possible answer to the question of ‘now what’? Since the chief contention behind NRC was to eliminate non-citizens from voters’ roll and avoid a demography change, which essentially looks fulfilled, detention camp appear as the only possible humane solution to the problem, wherein Rights under the Constitution are guaranteed to even Refugees and non-citizens except for the Right to Vote by virtue of the Hon’ble Court’s judgement in National Human Rights Commission v. State of Arunachal Pradesh[16].

Updating process:

The only reason that the NRC failed in 1951 was the non- updating of the register by the concerned authorities from time to time. For the same mistake to not be repeated again, a periodic review and update of NRC becomes a must for continuous monitoring of illegal immigrants in the country. A one-time exercise at the hands of the government may eliminate such foreigners from the border for once, but continued vigil and effort will only ensure that the same problem is not germinated in the future.

A proposed strategy can be a concurrent conduct of census and verification of NRC across the country, similar to the verification of electoral rolls before every major election.

The de novo revision strategy can also be applied, wherein the Election Commission will be notified through a red alert as soon as any polling booth or a constituency as a whole receives more than 4% increase in the registered voters, with reference to the last elections.[17] The red flagged constituencies or the particular polling stations can be thoroughly and easily verified by the Election Commission, instead of a Pan Nation NRC altogether at once, a system of continued vigilance will thus be developed.

Conclusion and Suggestions:

There remains no doubt that the entire process of NRC has been thought thoroughly and implemented to the best of capabilities of its coordinators. But there remains scope for improvement to the system of conduct and other aspects of its commission which can be improved by the means of deliberations, and possibly trial and error, provided it is applied on a Pan India Level, and is made a periodic exercise.

NRC remains as much of a legal question as it is a moral one, weighing the right of the refugees on one hand against the rights of the native communities. It essentially becomes the question of safeguarding the culture, language and ethnic values of a community against an illegal (not necessarily immoral) invasion at the hands of a historically connected by geographically divided communities, whether the state owe a primary responsibility to its citizens or a greater responsibility towards its commitment to protect human rights.

The following strategies can be followed ever and if a Pan India NRC is planned:

a.       The geographic and historical context of each state shall be taken into consideration before implementing the NRC on it. Therefore, validation of a Pan India NRC should be a process that shall be taken One State at a Time.

b.      The de novo revision strategy appears as the most effective and practicable out of the alternatives available in the same domain.

c.       An effective appeal and revision strategy, with a transparent window for information and intimation to public shall be incorporated so as to avoid allegations of corruption and arbitrariness

d.      An exhaustive list of Legacy documents and a limited strategy of legacy data shall be implemented, keeping in mind the social realities and unfair practices that have been involved with the documents (forgery and duplication) since the time of independence

e.       An agreement, uniform in nature with immediate neighbors of the country with respect to the taking back of illegal immigrants

f.        Enacting a legislation in the meantime to safeguard and codify the rights and duties of people residing in the detention camps

g.      Concrete steps to make the borders of the country rigid and no penetrable, be it from land, sea or rivers

h.      Issuance of Citizenship certificates in areas having reported drastic increase in the voting population from last elections

The Citizenship (Amendment) Bill, 2019 has reignited the debate for justification and preservation of human rights. The bill is progressive in its concept that despite not being a party to any refugee convention, India has committed itself as the safe harbor, and crusader against minority persecution, as the protector of minorities around the world. The melting pot of global civilizations would be an understatement for the said bill; however, the Government has to ensure at the same time, the conservation and protection of ethnic, cultural and linguistic groups within the Union, who have their fair share of apprehension regarding the same. As the Assam Accord had promised for laws for protection of indigenous Assamese culture and tradition, though remained unfulfilled, shall nonetheless be a model for creating a balance between the safe harbor of minorities and rights of linguistic identities.



[1] White Paper on Foreigners’ Issue; Home and Political Department, Govt. of Assam; 1, 5 Oct. 20 2012.

[2] Id. Annexure I C. at 5.

[3] Id. At 11.

[4] Id.

[5] Rajya Sabha TV, RSTV Vishesh: Assam Accord, (July 31, 2018) https://www.youtube.com/watch?v=qQHY8nB-5yE.

[6] Id.

[7] Sarbanada Sonowal v. Union of India, (2005) 5 SCC 665 (India).

[8] INDIA CONST. art. 51(c): Promotion of international peace and security The State shall endeavour to:

foster respect for international law and treaty obligations in the dealings of organised peoples with one another; and encourage settlement of international disputes by arbitration.

[9] INDIA CONST. art. 253: Legislation for giving effect to international agreements Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body.

[10] supra note, at 7.

[11] Kamalakhya Dev Purkayastha v. Union of India, Writ Petition (Civil) 1020 of 2017 (India).

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