Image courtesy: NDTV.com
May 22, 2019
By: Tahmina Laskar
The Supreme Court-monitored updation of the the National Register of Citizens (NRC) exercise, aimed at identifying illegal immigrants is being carried out in Assam. When the draft NRC was published on July 30, 2018, there was a huge controversy over the exclusion of 40.7 lakh people from it. The draft NRC which was prepared last year had included the names of 2.9 crore people out of the total 3.29 crore applications. The final list of the NRC is expected to be published on July 31, 2019. The process of identification of illegal immigrants in the state has been widely debated and is a contentious issue in state politics.
Thousands are likely to be declared non-citizens when the NRC is finalised. But with no clear plan in sight on what will happen to those excluded from the NRC, the focus has shifted on creating more detention centres which are constantly in news for all the wrong reasons. The issue, however, is much more complicated than it seems on the surface.
Assam saw two major episodes of large-scale migrant influx around Partition and in run-up to Bangladesh war in 1971. Influx of immigrants was always a major concern occupying the minds of the inhabitants of the State. By the end of 1979, a popular resistance movement known as the Assam Movement took shape in Assam led by students group, the All Assam Students Union (AASU) and an umbrella alliance of regional political parties, the All Assam Gana Sangram Parishad (AAGSP). The agitation demanding identification and deportation of illegal immigrants finally culminated into the Assam Accord signed in 1985. The Accord listed down a number of measures to be taken for the state to deal with the issue of immigration.
Section 6A of the Citizenship Act – introduced through an amendment in 1985 – was the legislative enactment of the legal part of the Assam Accord. Section 6A divided “illegal” immigrants of Indian origin (i.e., those whose parents or grandparents were born in undivided India) who came into Assam from Bangladesh into three groups: those who came into the state before 1966; those who came into the state between 1966 and 25th March, 1971 (the official date of the commencement of the Bangladesh War); and those who came into the state after 1971. The first group (pre-’66) was to be regularised. The second group (’66 – ’71) was to be taken off the electoral rolls and regularised after ten years. The third group (’71-onwards) was to be detected and expelled in accordance with law.
Meanwhile, two years before the Accord and Section 6A, Parliament had also passed the Illegal Migrants (Determination by Tribunals Act) of 1983 (IMDT Act). This Act authorised the government to set up tribunals for the purposes of determining whether migrants were illegal.
Under the Act, the government framed the Illegal Migrant Rules of 1984. The Illegal Migrants Act and Rules were challenged before the Supreme Court in Sarbananda Sonowal vs Union of India. Relying upon a 1998 report by the Governor of Assam, the Supreme Court held that there was a “flood” of Bangladeshi migrants into Assam, which the statutory regime had failed to check. This, the Court held, amounted to “external aggression” against the State of Assam, and under Article 355 of the Constitution, it was the duty of the Union to protect every state against external aggression. Holding the statutory regime of the Illegal Migrants Act and Illegal Migrants Rules to be directly responsible for this failure, the Court held the Act and Rules to be unconstitutional. After Sarbananda Sonowal, therefore, the Tribunals under the IMDT ceased to function, and the statutory regime reverted to Section 6A of the Citizenship Act, the Foreigners Act and the Foreigners Tribunal Order. Consequently, the statutory regime governing migration to Assam now became Section 6A of the Citizenship Act, read with the Illegal Migrants Act of 1983, and the Illegal Migrant Rules of 1984.
Identifying foreigners in Assam: The issue, process and complexities
The recent Supreme Court order in Supreme Court Legal Services Committee v. Union of India & Another, relating to detention centres in Assam has generated a lot of debate. The SC order mentioned that those housed in detention centers in Assam who are awaiting deportation and have completed more than three years of detention should be released, subject to conditions such as mentioning the execution of bonds, providing a verifiable address of stay, recording biometric detail of the detenue, and regular reporting to Foreigner’s Tribunals.
The court also agreed that the Assam government should be given some more time to indicate the progress made on the diplomatic level, among others, with regard to deportation of declared foreigners and setting up of additional foreigners' tribunals. The Supreme Court had previously expressed its displeasure that ‘foreign nationals’ kept in a detention centre in Assam were separated from their families, and asked the state government to look into the issue with some urgency to ensure families are not broken up.
In connection with the same issue, the Centre also informed the Supreme Court that the process of framing guidelines for keeping foreign nationals in detention centres across the country was "under preparation" in November 2018. However, there has been no further news on any development in this regard.
While the order, on the face of it, seems to be a progressive step towards ending the agony of detenues, the issues involved are much more complex, considering the fact that the updation of the NRC is underway in Assam. As mentioned before, the roots of this process lie in the “Assam Accord” which was effectively a political compromise between the government and the leaders of the Assam Agitation.
Recently Citizenship Amendment Bill, 2019 passed in the Lok Sabha proposed to amend the Citizenship Act 1955 to make illegal migrants who are Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan, eligible for citizenship. Essentially, this bill conditionally allows persons who would otherwise be illegal immigrants to have regular citizenship on the basis of their religious identity. The bill was accused of being constitutionally weak and malicious in its intent and was finally stalled. Such developments also add to the complexity of the issue illegal immigrants at hand.
Different process leading to detention
There are several ways through which a person may be declared a non-citizen in Assam. If the Border Police finds someone’s citizenship ‘doubtful’ during surveillance, it can send the case to the relevant Superintendent of Police (Border), who in turn will refer the matter to the Foreigners Tribunal (FT). But there are also other ways in which people can end up before the Foreigners’ Tribunal.
In 1997, the Election Commission of India (EC) introduced the Doubtful Voter (D-Voter) category. While revising of electoral rolls, the EC appointed Local Verification Officers (LVOs -- generally employed contractually), who can declare a person ‘doubtful’. Their report goes to the Electoral Registration Officer (ERO) who sends it to the SP (B) concerned, who in turn refers the case to the FT.
One can be declared a non-citizen if his/her name is not included in the National Citizen’s Register. The National Register of Citizens (NRC) is the register containing names of Indian citizens.
The provisions governing NRC updation in Assam are The Citizenship Act, 1955, and The Citizenship (Registration of Citizens and Issue of National Identity cards) Rules, 2003.The modalities for NRC updation have been developed jointly by the Government of Assam and the Government of India in adherence to these statutes.
During the preparation of the NRC, a report can be made of person(s) not being able to provide valid proof of citizenship as required by the process. This too goes through SP (B), leading to the person ending up before the FT. As in most parts of the world, when a person’s citizenship is questioned, the onus to prove it lies is on the individual. Thus, those adjudged to be foreigners by the FT would be sentenced to detention until their deportation.
On 2 July, the Supreme Court, while monitoring the NRC update process, allowed NRC authorities to keep immediate families of those marked as D voters out of the final draft till their cases were sorted out by the FTs.
CHRI’s RTI Interventions
In the complex matrix of the processes that lead to detention, non-inclusion of people in the NRC in Assam there is an apprehension that tens of thousands could be declared non-citizens when the register is finalised. As mentioned previously, since deportation is almost impossible, the focus of authorities will be on the detention policy or dispersal within the state/region/country.
To unearth conditions in detention centres and the process of NRC, CHRI filed a series of RTI applications, seeking information on the procedures and criteria followed in preparing the NRC, publishing its draft copies, and declaring of D voters.
Findings on detention centres
These RTIs were filed simultaneously with the Home and Political Department in Assam and the Ministry of Home Affairs (MHA) at the Centre. The MHA transferred the RTI to the Home and Political Department of Assam and the Central Public Information Officer, Foreigner’s Division.
In its reply, the Foreigner’s Division said that the information sought was unrelated to their office. The Home and Political Department of Assam transferred the RTI to the Inspector General of Prisons in Assam. The IG Prisons in turn forwarded it to various detention centres. Eventually, we received responses from the Goalpara district jail, the Central Jail in Tezpur, the Kokrajhar district jail, the Central Jail in Dibrugarh and the Central Jail in Jorhat which serve as detention centres.
Our application had sought information such as the number of detenues and age-wise and gender-wise, rules meant for them; and the regulations and manuals pertaining to the manner of admission and care of detenues in the said detention camps. The replies we received stated that admission and care of detenues was conducted as per Assam Jail Manual rules. None of the replies, however, furnished any information on funds allocated and the expenditure involved in the establishment and maintenance of the detention centres.
The also revealed that a total of 554 detenues were lodged across five detention centres in Kokrajhar, Tezpur, Jorhat, Dibrugarh and Goalpara. Available RTI data also showed that there were 29 children held in three centres, of which 16 are female and 13 were male. In addition, there were three births at two centres as well – two female children and one male.
Eleven deaths have been reported from four centres, as of February 2019.
We received detailed information about the 153 detenues being held at the Kokrajhar District Jail, such as their names, ages, relationship details, address in Bangladesh (where applicable), date of admission in the centre, date of transfer from other jails and case numbers. A little more than 13% -- 21 of the 153 -- are elderly persons and notably, none of them are shown as having an address in Bangladesh, unlike several younger detenues named in the list supplied by the centre.
Findings on the NRC process
We filed simultaneous RTIs regarding the draft NRC with the Office of the State Coordinator, NRC Assam and the nodal authority for the process, the Office of the Registrar General and Census Commissioner of India. The Office of the Registrar General and Census Commissioner of India transferred our RTI to the Office of the State Coordinator, NRC Assam.
The responses received from State Coordinator, NRC Assam directly and on the transferred RTI were the same. It only stated that every hard copy of the Draft NRC was held in the offices the Deputy Commissioner, SDO (C), Circle Officer, BDO, NSK, Gaon Panchayat/VCDC and the Polling Station. They pleaded ignorance on the remainder of the information sought on the total number of copies of draft NRCs, stating that this information was “not available”.
RTIs were also filed with the Office of the State Coordinator, NRC, Assam seeking information on the process of updating the NRC. The response stated that for inclusion in the NRC, applicants were required to prove their eligibility by showing residence in Assam or any part of India up to 24 March (midnight) 1971 by submitting the stipulated Legacy (List-A) and Linkage (List-B) documents. The List-A and List-B documents, however, were not included in the reply received. These are available with the official website of NRC Coordinator.
The reply also said that persons deemed ‘D’ Voters, descendants of ‘D’ Voters (DVDs), persons against whom cases are pending in the Foreigners’ Tribunal (PFT), or the descendants of PFTs were kept ‘on hold’ in the NRC. The reply stated that there is no information on standard operating procedure (SoP) for the inspection of the draft NRC by individuals.
Our RTIs also sought information on any quality checks performed to verify the accuracy of entries in the draft NRC by Circle Registrars as mentioned in the Supreme Court’s Daily Order dated 2 July 2018 in the matter of Assam Public Works Vs Union of India and Ors. [Writ Petition(s) (Civil) No(s). 274/2009].
In response to this, we received a copy of a letter containing instructions for these quality checks (QC), which also informed us that circle registrars had conducted 19,13,242 checks. However, no information was available for incorrect entries into the NRC or who was accountable for them; neither was the number of Letters of Information (LoI) sent to those not included revealed to us.
The replies also denied offering any information on the district-wise break-up of applicants kept on hold and the number of LoIs sent to such applicants, stating that this information could not be furnished as according to a Supreme Court order dated 31 July 2018 (WP (C) No. 274/2009- APW vs Union of India & Others). Howeever, a perusal of the order reveals that nowhere did the Court embargo the disclosure of such information.
These findings indicate a lack of clarity the treatment of persons declared to be non-citizens by the NRC. Therefore, the fate of the persons held in detention centres in Assam too remains unclear; they might continue to remain there, at least for the near foreseeable future, without hope of release.
 The National Register of Citizens (NRC) was prepared last time after conduct of the Census of 1951, by recording particulars of all the persons enumerated during that Census. The NRC exercise in Assam will be now update information to include the names of those persons (or their descendants) who appear in the NRC, 1951, or in any of the Electoral Rolls up to the midnight of 24th March, 1971 or in any one of the other admissible documents issued up to mid-night of 24th March, 1971, which would prove their presence in Assam or in any part of India on or before 24th March, 1971. All the names appearing in the NRC, 1951, or any of the Electoral Rolls up to the midnight of 24th March, 1971 together are called Legacy Data. For getting their names included in the updated NRC, citizens shall have to submit Applications Forms (family-wise). Application Forms so received by the state government shall be verified further and on basis of these verifications the updated NRC shall be prepared. However, to afford another opportunity to the applicants before publication of the final NRC, a draft NRC shall be published after verification of the Application Forms and the applicants will be given chance to submit claims, objections, corrections etc. After verification of all such claims and objections, the final NRC would be published.
 The accord brought an end to the Assam Movement and paved the way for the leaders of the agitation to form a political party and form a government in the state of Assam soon after. Though the accord brought an end to the agitation, some of the key clauses were yet to be implemented. As per the accord, all people who came to Assam prior to January 1, 1966, would be given citizenship. Those who moved in between January 1, 1966, and March 24, 1971, would be “detected in accordance with the provisions of the Foreigners Act, 1946 and the Foreigners (Tribunals) Order 1964”. Their names would be deleted from the electoral rolls and they would remain disenfranchised for a period of 10 years. Lastly, the accord provided a resolution to the case of those who entered Indian borders after March 24, 1971. The exercise of the updation of the National Register of Citizens (NRC) which now being updated in Assam has its roots in the terms and conditions of the Assam Accord. The update process of NRC started in the year 2013 under the monitoring of Supreme Court of India.
 A three-judge bench of the Supreme Court held that the statutory regime, with its reversal of the burden of proof clause (placing the burden of proof upon the State rather than the alleged illegal migrant), and its procedural requirements of filing applications (“… accompanied by affidavits sworn by not less than two persons residing within the jurisdiction of the same police station in which the person referred to in the application is found, or residing, corroborating the averments made in the application.“), was insufficient to check the problem of illegal migration.
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