The Illusive Citizen: the Predicament of determining Citizens between politics and the law in Assam

Introductory Remarks:
Politics in Assam has for long been dominated by contestations over belongingness and citizenship, today, popularly intertwined with the process of ‘updating’ the National Register of Citizens. In is important to examine the history of this project of ‘updating’ the National Register of Citizens (hereinafter referred to as NRC) in Assam and how it came to find a place in the political imagination in the province. It would not be incorrect to point out that the Assam Accord  signed in 1985, which marked the culmination of a six-years long anti-foreigner agitation in the Brahmaputra valley of Assam was conspicuously silent about the ‘updating’ of the NRC, though it did provide that 24^th March, 1971 would be the cut-off year for ‘regularization’ of foreigners in Assam. This led to the insertion of a new provision in the  Citizenship Act, 1955, viz Section 6A which delineated special provisions as to citizenship of persons covered by the Assam Accord. While most of the other clauses of the Accord have been implemented, only those provisions related to illegal immigration of ‘foreigners’ still remained wanting, despite the rhetoric that rent the air since the signing of the Accord in 1985. It is probably because of this shortcoming, the three parties to the Assam Accord, viz, the All Assam Students Union, the Government of Assam and the Government of India decided to come back to the table to review the implementation of the Assam Accord which was also carried prominently in the press.  The Hindu reported in its 8^th May, 2005 edition that,
 “Prime Minister Manmohan Singh agreed to the AASU demands for implementation of the Accord within a timeframe; effective measures to seal the Indo-Bangladesh border in a year’s time; updating the National Register of Citizens with March, 2, 1971 as the cut-off date within two years time and issuance of photo identity cards after updating the NRC.”

The issue of the ‘updating’ the NRC therefore arrived into formal official narratives only with the Agreement of 2005 and not earlier as many would want to argue. It is interesting to note that neither the Assam Accord nor subsequent agreements clearly defined the term ‘foreigner’ though the primary focus of the Anti-Foreigner Agitations was focused on identification and deportation of the same. But this accord and agreement notwithstanding, the issue continued to drag on till in 2008, the Government of Assam took up the matter of the construction of national Register of Indian Citizens in august, that year, with the Government of India.

Since 2005, the judiciary in Assam has become a pro-active arm of the state machinery in its quest of determination and construction of citizenry in Assam. By 2008, judicial anxiety on citizenship was out in the open as one of the judgment even went to the extent of pointing out that, “… large number of Bangladeshis present in the state of Assam… have become the kingmakers.”^[1] The institutions of government were perhaps not immune to and insulated from the popular outpourings of society in which they were located. The ghost of partition came back to haunt the society, especially its politically sensitive elite who had felt that the foreigners issue had never really been buried for good despite the Accord of 1985. The Gauhati High Court judgement in WP (C) No.5696 of 2002 dated 25.7.2008 was only one of the major judgments on the issue of illegal immigration from Bangladesh into Assam as it was widely reported in the press and generated wide public debates. Many more judgements that came subsequently also reflected similar sentiments. It was evident that a broad consensus was emerging on the construction of a national register of citizens which would be the touchstone for citizenship claims with both the political and legal authorities. When the Government of India came out with The Citizenship (registration of Citizens and Issue of national Identity Cards) Rules,2003 in their effort to prepare the National Population Register, it was perhaps only in time with the broad political atmosphere in Assam. The proposal under the rules was to make a National Register of Indian Citizens.(Order appended to clause 2 of the Rules,2003). As the foreigners issue again witnessed an upsurge in 2005 and the political situation became critical, the government of Assam and the government of India again sat in consultation with the All Assam Students Union (ASSU) which led to a formal proposal for the updating of the national register of citizens in Assam, 1951, for the first time as a possible solution of the popularly sensitive foreigners issue. The political leadership took shelter behind popular logic with the Chief Minister pointing out in a letter to the Prime Minister that “updating of the national Register of Citizens 1951 is looked upon as the solution to the vexed foreigners issue in the State and there seems to be a consensus among cross section of people with regard to the updating of National Register of Citizens”[2] It is at this critical moment that an septuagenarian, Pradip Kumar Bhuyan prepared a draft of the writ petition and got Abhijit Sharma of the Assam Public Works, a voluntary NGO file the petition bearing W.P. (C) 274/2009 at the Supreme Court of India(The Assam Tribune, 31^st July, 2018) seeking to “delete the illegal voters from the voters list of Assam and in that process seeks an updation of the National Register of Citizens, 1951.” (para 18, S.C. Judgement dt. 17.12.14). By 2012,Assam was in the throes of another conflagration as, in public perception, nothing much had taken place to resolve the issue of illegal migration of foreigners either at the politico-administrative level or the political level. The All Assam Students Union was successful in organizing protest meetings and processions on the foreigners issue and the press reports indicated the reverberation of the slogans of the Assam Movement again in 2012.  The match stick to the powder-keg came in the BTAD areas in 2012 which witnessed a conflict between Bodo inhabitants and Bengali-Muslim settlers who were pilloried as ‘Bangladeshis’. It is at this time of conflict and tension, that the project to prepare the National Register of Citizens received a fillip. The process of upgradation of the NRC was also not without its share of contests and controversies with civil society organizations like Assam SanmilitaMahasanghaIndiginous Tribal Forum and NDFB (Progressive) and political parties like BJP and AIUDF crossing paths on the issue.[3] (Telegraph: 16^th September,2012) It is in this situation that the Supreme Court decided to take up the hearing of the Assam Public Works led writ petition. By 2012, many other organizations came together to form an umbrella organization, named Assam SanmilitaMahasangha and intervened in the petition filed by Assam Public Works. By the time the Supreme Court of India begun hearing of a writ petition on the issue in August 2013, the modalities for the NRC had not been finalized and neither was any fundamental legal framework identified for the process except the order from the Registrar General of Citizens Registration for the same by 5^th December,2013. (Gazette Notification dated 6^th December,2013). However the matter acquired seriousness as the Supreme Court, like the Government of India also went about supporting the exercise and in its Judgement on 17^th December 2014 and directed that the upgraded National Register of Citizens (NRC) for Assam be published by the end of January 2016 on the basis of a prescribed time schedule. It is interesting to note that the judgement of 2014 was in response to the petitions which called for linking the current exercise of NRC with the NRC of 1951. This is where all the problems of the process came to be rooted. It is also important to note that the fundamental legal bases of the two Registers, viz the NRCof 1951 and the NRC of 2018 are distinct and separate. While the NRC, 1951 was completed under the Census Act of 1948 which makes the register a contemporaneous document prepared by field staff engaged in course of census operation and was legally “not open to inspection nor admissible in evidence” (ALR 1970 (A&N) 206 para15), admittedly the current NRC is being prepared under the Citizenship Act 1955 read with the Citizenship Rules, 2003. To the best of our knowledge, the Courts and the various orders and judgement have not as yet constructed any legal framework to reconcile the two Acts which have distinct origin and purposes. Neither has any legal framework been evolved to legitimize the use of the NRC,1951 as evidence in matters governed by the Citizenship Act by any amendment or an enabling clause. The matter is more complicated now as we know that the district offices have not maintained the NRC-1951 data for all the districts as was mandated in the Census of 1951 and the matter is today admitted by the government of Assam as well. While the government was forced to rely on other documents produced by the people, from those districts where the NRC 1951 was absent or fragmentary, to enlist their names in the NRC, 2018, it therefore raises serious questions on the legality or legitimacy of ‘updating’ NRC,1951 in the province of Assam as a whole. It is also important to mention that the province of Assam in 2018 is surely not the same as it was understood in 1951. The new states that were formed on the debris of composite Assam since 1963 had surely not taken adequate care to maintain the NRC 1951 records which have since been destroyed. Thus despite repeated reminders from the authorities in Assam, they have not been very forthcoming with the information.    

The Historical Antecedents
In popular perception of many Assamese elite, the NRC was a document that was inextricably linked to the goal of sanitizing of Assam from the scourge of ‘foreigners’ who are often synonymous only with people of east-Bengali origin and post-partition had become synonymous with the east-Pakistani/Bangladeshi. It is important to remember that when post-colonial Assam was conceived and constructed by the dominant Asomiya speaking political leadership of the Brahmaputra valley, it was imagined as linguistically homogenous and insular with the transfer of the district of Sylhet to East Bengal, reflected in the APCC Election Manifesto of 1945 and the Governor’s address to the first session of post-colonial Assam Assembly post-partition, as he declared that, “the natives of Assam are masters of their own house… The Bengali no longer has the power… to impose anything on the people of…Assam”^[4]. But this attempt to arrive at a ethno-linguistically homogenous citizenship in post-colonial Assam appeared to be defeated as the flow of refugees soon turned into an unstoppable tide. As these immigrants became vote-banks of the ruling party in power,^[5] they became more assertive. In the backdrop of the Chinese invasion the government became wary of the immigrants and began to make a fresh security appraisal. A text of the draft prepared by the Intelligence Bureau in its background note was stated that, “the number of illegal immigrants into Assam from Pakistan over the course of the last 12 years has been very conservatively estimated about 250 thousand. Local unofficial estimates, however put this figure even higher.”(Text of the PIP Scheme)[6]The Intelligence Bureau therefore observed in a circulated proposal that, “The fact that such a large number of immigrants succeeded in illegally crossing the frontier and settling down unnoticed would prove that the measures so far taken have not been effective”[7] and proposed for initiating the national registration of citizens as a means to tide over the vexed citizenship issue. This scheme which was drafted by the intelligence bureau officials proposed that a “National Registration System and the issue of Identity Cards should be adopted”[8] for all the residents of Assam and the North Eastern region. It is probably in this context that the government agencies began to assert the importance of documents like the National Register of Citizens as a document for verification of citizenship and identification of infiltrators from Pakistan.

The birth of Bangladesh on the partition of Pakistan in 1971 made the situation more critical. It added the ‘Bangladeshi’ dimension to the ‘foreigners’ imbroglio and gave a new lease of life to the existing resentment in Brahmaputra valley against the Bengali speaking population living in Assam. By late 1970s, the presence of foreigners in electoral rolls had come to become a major issue in Assam politics. The Assam Anti-Foreigners Agitations were launched in 1978 over a by-election and which came to a close with the signing of the Assam Accord in 1985.The NRC was also viewed in academic and political circles as a fulfillment of the vision of a sanitized Assam that promised to be free of ‘Bongals’. It was therefore often mis-understood as part of the “mandate of the Assam Accord.” [9](Dutta: Feb,2018 EPW) and many academics working in the Brahmaputra valley thought of it to be a part of it as the Accord, signed in conclusion of the Assam Movement against ‘foreigners’. It is pertinent to remember that the NRC, which today is believed to be extremely critical to the ‘national’ life of Assam did not find any mention in the famous Assam Accord signed in 1985. In fact it was a process that was proposed administratively in 1965 and was politically sanctioned only in 2005, only to be constructed since 2015, after the division bench of the Hon’ble Supreme Court passed an order in favour of updating the NRC, 1951 in December 2014. While the process commenced in 2015, the final draft NRC could only see the light of print on 30^th July, 2018 after a lot of delay. But this list again opened a can of worms as more than 40 lakhs applicants did not find their names in the list.The Supreme court therefore in recent orders reopened the process of filing a fresh round of filing of claims and objections from the 25^th of September up to 15^th of December, 2018.While the schedule for the publication of the NRC has missed its original timeline, the NRC including the draft register is, in reality, far away from its completion and final publication to the satisfaction of the people of Assam even if the process of completing the formalities for the enrolment of names in the National Register of Citizens is completed according to the Supreme Court Schedule.

NRC Assam model: Building the Castle with fragile pillars.
In retrospect, it is probably important to reflect on the process and possibilities of the process itself. The process of NRC updating in Assam has been devised on the basis of 14 documents on the basis of which a person has to show his linkage with his ancestors or his existence within the territory of India prior to 25^th of March, 1971.Failure to produce such link would result in non-eligibility to have his name entered in the NRC and hence be stigmatized as a probable foreigner. It is important to look into the statistics which are available in the public domain in forms of various reports/writings, to understand as to how many people can produce these documents. The documents are publicized in the web site of NRC Assam. The official notification states that:

“There will be two requirements for inclusion of names of any person in updated NRC –
1. The first requirement is collection of ANY ONE of the following documents of List A issued before midnight of 24^th March, 1971 where names of self or ancestor appear( to prove residence in Assam up to midnight of 24^th March,1971.
1951 NRC or Electoral Rolls up to 24^th March, 1971(midnight) or Land and Tenancy Record or Citizenship Certificate or Permanent Residential Certificate or Refugee Registration Certificate or Passport or LIC Certificate or Any Govt. issued License/ Certificate or Government service/Employment Certificate or Bank/Post Office Accounts or Birth Certificate or Board/University Educational Certificate or Court Records/ Processes.

Further two other  documents viz (1) Circle Officer/GP Secretary Certificate in respect of married women migrating after marriage ( can be of any year before or after 24^th March,1971) and ration cards  issued up to midnight of 24^th March, 1971 can be adduced as supporting documents. However these two documents shall be accepted only if accompanied by any of the documents listed above.

2. The Second requirement arises if name in any of the documents in List A is not the applicant himself/herself but that of an ancestor, viz, father or mother or grandfather or grandmother or great grandfather or great grandmother ( and so on) of the applicant. In such cases the applicant the applicant will have to submit documents as in List B below to establish relationship with such ancestor, i.e. father or mother or grandfather or grandmother or great grandfather or great grandmother etc whose name appears in List A. Such documents shall have to be legally acceptable document which clearly proves such relationship.

The documents listed in List B are:
Birth Certificate or Land Document or Board/University Certificate or Bank/LIC/Post Office Records or Circle Officer/G.P. Secretary’s Certificate in case of married women or Electoral Roll or Ration Card or any other legally acceptable document.

Provided that any one of the documents of List A of ANY PERIOD up to midnight of 24^th March,1971  shall be enough to prove eligibility for inclusion in updated NRC.”

In the first category of the documents the most important and most controversial are of course the NRC 1951 and the voters list till 1971. But before discussing these two documents, it is important to examine the statistics related to some of the other documents in the list and examine their validity. The second category of documents can be broadly classified under the head of literacy rate, employment, institutional births etc . The third set of documents are theLand & Tenancy Records If we depend on the statement of Sri ArunJatley, the finance minister of Indiain the Rajya Sabha in 2015 April,100 million households and 300 million people in India do not own land,(Livemint on 4.5.15)The Brahma Committee set up by the State Government of Assam in its report, as reported in the press, points out that 90% of the natives in Assam do not have permanent land ownership papers. (The Economic Times, 2^nd May, 2017) It is important to ponder as to how many people can produce land documents as proof and which can make us wonder as to how one could depend on the same to construct the NRC.  Though the figures are of 2015 and 2017 but the same nevertheless can reveal what the conditions might have been in 1971 or before.  The fourth, fifth and the Sixth document being Citizenship Certificate, Permanent Residential Certificate andRefugee Registration Certificate, which one could be sure were issued only to registered refugees from East Pakistan, who arriving before 1971, as is the mandate of the present exercise would be a defined number i.e about 21 lakh people out of a total of 3 crore 29 lakh applicants, as is discussed below.  The PRC or Permanent Residential Certificate is issued only issued for educational purposes and it would overlap with the literacy figures which is discussed separately. The Seventh document is the Passport, about which the Business Today reports on 24.7.17, that only 5.5 per cent of India’s population has passports. (Business Today Online, July 24^th, 2017) The next set of documents is LIC policy. The Financial Express it its report dated 24.9.2006 stated that 20% of the insurable population is only covered in the country. The figures in 2006 was itself so small and one is left wondering what the number of such policy holders could be between 1951 and 1971. This brings one to the Ninth Document in the list which is any Govt. issued License/Certificate. If the figures of issuance of Driving License is taken, which is an accepted document for many purpose, the Times of India on 16.7.17 reported that there are 997 regional transport offices (RTOs) in the country with 1.15 Crores license being issued/renewed every year.So in a population of more than 130 Crores new license and renewals together comes to 1.15 Crores, every year that too after Maruti revolutionized the automobile sector in India in the early eighties   One can therefore make a guess what the figures might have been in 1970s and prior as the document has to be prior to 1971 when only the rich owned motor vehicles in India.

If the scenario of self-employment is considered, the Indian Express on 18th March 2018 reported that Eleven percent of the adult population in India is engaged in “early-stage entrepreneurial activities”, and only five percent of the country’s people go on to establish their own business as per a survey.  If the employment statistics on the basis of Figures released by the RBI are considered, it would show that only a small section of the people filing the NRC applications can produce such certificate. The next document is the Govt. Service/ Employment Certificate, the document No 10. The Indian Express report shows that in 2011-12 only 17.61 million or 1 crore 76 lakhs are in Government jobs, which was 13.13 million in 1974-75. So all over the country only 1.76 Crores government job holders were available in 2011-12 and if one goes back further it was 13.13 million in 1974-175. Further, in 2011/12 there were 12.04 million (1 crore 24 lakh) formal private sector jobs, which meant that 2.3% of the work force are in formal private sector.Thus, the size of the formal sector, based on RBI data till 2012, is about 6% (government + private sector).The rest 94% are in the informal sector. Majority are farmers, farm labourers and daily wage workers. The figures that may be relevant here is the number of Government job holder, which even if relaxed to include the private sector would also not be sufficient to overcome the hurdle. Statistics of People below poverty line also is a big factor to understand as to how people are placed in their fight for survival. The Planning commission figures of 11-12 says 29.8% Indians are below poverty line. BBC News on 23.3.2012, through Soutik Biswas, Delhi Correspondent reports that 37.2. % of Indians were living below poverty line in 2004-2005. (I.e. earning less thenRs 28.65/- per day in a city and Rs 22.42 in village). The Telegraph on 11.4.17 reports that the Union Rural Development Minister Shri Narendra Singh Tomar in response to a question fromSmtiRaneeNarah in Rajya Sabha in 2011-2012 stated that 101.27 lakh people live below poverty line in Assam.   i.e. 31.98 % of the total population. These figures are of 2011-12 and not of the seventies or the sixties, which could not have been any better. The Eleventh document is the Bank/Post Office Accounts. If one looks into the Jandhan Accounts opened as a part of initiative by the present Government, 30,71,10,972  accounts ie, approximately 31 crores accounts were openned in India and 1,25,20,340  were opened in Assam alone. This literally means that 31 crores of Indians did not have any account even in 2014-15. Birth Certificate is the twelfth in the list. If the Census of India figures of 2015 is any indication only 2.3 crore people in India have their birth registered at the national level and only 1005681 names have been registered for their birth in Assam in the same year out of a population of more than 3 crore. Considering that the figures are so marginal even after the making of  compulsory registration of births and deaths in India in 1969, one can only imagine the percentage of people who could probably produce such certificates between 1951 and 1971.With regard to Registration of births, reports suggest that after 30 years since 1969 Act came into force, still less than 55 %  the births were registered which means that even by 1999 standards 45% of the country’s population born in 1999 did not have a birth certificate. The figures also do not improve if an analysis of the people who can produce the 13^th Document i.e. the Board/University Educational Certificates, is made. Census figures from Assam reveal that only 18.53 % of people were literate in 1951 which rose to 33.94% in 1971. This means that more than 66% of the population were illiterate in 1971 and had no possibility of producing any such Board/university educational certificate even if it assumed but not accepted that these entire literates population had passed matriculation.The last document which is Court Records/Processes, which would cover only a minuscule percentage of population, considering the fact that people do not move to adjudicatory forums as a matter of everyday practice. Even if one were to take the records of crimes committed and registered, it is an acknowledged fact that the number of reported and registered crimes is substantially lower than that which is actually committed. If we were to go by the statement of Justice Deepak Mishra, about 3.3 crore cases were pending in different courts of India in 2017. While the figures, in itself are staggering, it has to be contrasted with the total population of 135 crore population of the country, which is only minuscule. If the said figure is any indication, it can be safely argued that the number will be even smaller till 1971, considering that 24^th March, 1971 is the permissible cut-off date for any adduced document to prove claim for inclusion into NRC.
 
These documents apart, the ration Card is included as a Link document. However, the document is a debatable one as the Times of India had reported on Jan 22, 2016 that nearly 3.75 crore bogus ration cards have been issued. Further, the linkage is not very clearly possible as the ration cards issued earlier did not contain names of Family members in the 1970s.This brings one finally to the document at Serial No 1 being the NRC of 1951 itself which is being projected as the mother of all documents. The said document it appears is supposed to have been prepared in terms of the Census Act, 1948, though the said act does not provide for or envisage the preparation of any such national register. Further, what is more interesting to note that Section 15 of the Census Act, 1948 specifically says that any document, records prepared under the Act are not admissible in evidence, a proposition, which is also validated by the Hon’ble Gauhati High Court in 1970 (AIR 1970 Assam and Nagaland 206) which held the NRC,1951 to be inadmissible in evidence. Even the Voters list of Assam cannot be said to be conclusive as the territorial character of the province has undergone a lot of change between 1951 and 1971 and in case of those constituencies which do not fall within the meaning of present state of Assam, most of the records are unavailable in Government offices of other states. Moreover, the linkage with these two documents must be shown by the other 12 documents. It is also pertinent to point out that if we are to go by the government statistics, most of the people who could have the possibility of their names in the NRC, 1951 or the voters’ lists till 1971, would be dead by now.The average life span of an Indian is 67.5 according to the Census 2011. As per the census 2011 person above 60 in Assam is 20,79, 000 of the population, which means that 20,79, 000 of people in NRC 1951 would make it without any supporting document assuming that all of them are alive in 2015, which is the most unlikely.

In lieu of a Conclusion
Analysis of the above parameters reveals the precarious condition of the majority of population of the country and the people of Assam, if they are to prove their belongingness or roots in this state on the basis of any officially sanctioned documentary evidence. Thus the basic question that arises is, whether, a person who cannot produce any of these documents shall automatically cease to be a citizen of this country or not. It is also important to note that the Citizenship Act, 1955 does not state anywhere that persons who cannot or do not have documentary proof shall be considered as non-citizens. It is important to consider that we live in a country where sizable sections of people are still illiterate with the national literacy rate standing at 74% in 2011 and lives are prone to natural calamities and destruction.  It is probably needed to pause and ponder about the fate of such person whose eligibility to be included in the NRC still remains doubtful. The main concern today is whether the NRC can be completed in a fair manner, however solemn and desirable it might be or would the term “Fair NRC” end up as an oxymoronfor millions of genuine Indian citizens who to live a life of stigma in Assam or be haunted by the possibility of a life of stateless-ness in a ‘detention camp’. This is something that is unprecedented and we are yet to come to terms with till recent times.

(This article was first published on December 11, 2018, in the edition of East Wind: The North-East Journal and is being reproduced here with the permission of the author)