National Register of Citizens: Rhetoric v/s Reality

Much water has flown down the Brahmaputra since the last National Register of Citizens (NRC) in Assam was prepared in as early as 1951, immediately after Independence. The present NRC, which has been prepared after almost seven decades, was initiated in 2014 on the orders of a Special Bench of the Supreme Court after a batch of petitions were filed seeking updation of the Register.

The modalities and standard operating procedure for preparation and updation of the NRC in Assam were prepared after a series of discussions with the state government and several other stakeholders under the leadership of a state coordinator who acted as the eyes and ears of the Supreme Court throughout this long and arduous exercise.

Applications for registration in NRC were started in May 2015, and the same were last received by August 31, 2015. Thereafter, the state coordinator began the process of scrutinising and verifying applications under constant supervision and monitoring of the Supreme Court. During this process, persistent objections and suggestions were placed before the Court by all stakeholders and surprisingly, also by the State of Assam and Union of India. A series of reports were regularly presented by the state coordinator to the Supreme Court in a sealed cover that even the Union and state were not allowed to see.

The exercise was conducted on a stringent process of scrutiny which was primarily based on a list of prescribed "Legacy Data" and its subsequent "Family Tree Verification" in order to erase any doubt arising on the descent of an applicant. It is pertinent to understand here that this process of NRC is peculiar to Assam and is based on the grounds of descent under special provisions of Section 6A of the Citizenship Act.

Before the final publication, concerns regarding re-verification of included names were raised by both the state and Union who believed that in the bordering districts, which witnessed the concentration of one community, included persons in NRC should be rechecked for abundant precaution. These prayers were considered by the Supreme Court and found untenable in light of the submission by the state coordinator that a substantial number of persons have already been re-verified in the course of hearings that unfolded during the disposal of claims and objections.

Eventually, on August 31, 2019, when the National Register of Citizens for Assam was published by the Office of the State Coordinator, two major aspects drowned in the hue and cry that arose due to the exclusion of 19,06,657 persons. First, that the present NRC saw the light of the day after seven decades due to the singular effort of the Supreme Court of India which insisted that this process should be concluded once and for all. Second, that more than 31 million took a sigh of relief as they were found eligible for inclusion in NRC pursuant to thorough and tough scrutiny.

With clouds of doubt having receded from over 95 per cent of the state's population, restoring dignity, a new fact also emerged – that only 1.9 million people, out of a total 33 million applicants, were actually found ineligible for inclusion in NRC. On the contrary, this figure of 1.9 million people is not final. These people are still citizens of India till such time that a designated Foreigners' Tribunal adjudicates their claim by way of due process and declares them definite foreigners. There is an entire road map for availing all legal remedies with even the government now providing legal aid.

It is important to examine that this final figure of 1.9 million consists largely of people who are already Declared Foreigners, Doubtful-Voters (commonly called D-Voters), descendants of such category of persons and persons who have not filed their claims, etc. Thus, after deleting such categories and assuming that a good number of people will emerge victorious in their legal battle before the Foreigners' Tribunals, the final figure of people who may eventually be left out will be much lower than the figure we have today. Although there are many who may make an informed guess, this exercise in speculation is left to them.

The present exercise of updating NRC in Assam, having been conducted under the constant watch of a special bench of the Supreme Court headed by the Chief Justice, adds further credibility to the exercise. The past hysteria, built by overstated figures and apprehensions of illegal migration in Assam, which has been constantly propagated by major political factions, both from Guwahati and New Delhi, stands shattered.

The magnitude of this false narrative thus propagated ensured that the entire body politic of the country began believing this perception that there are a very large number of so-called foreigners in the state of Assam. Further crystallisation of this ill found perception in the year 2005, when the Supreme Court itself made an observation that there is "external aggression and internal disturbance" in Assam due to a "huge influx" of illegal migrants from Bangladesh. These observations were made while striking down the Illegal Migrants (Determination by Tribunals) Act, 1983 in Sarbananda Sonowal vs. Union of India. The judgment not only lent credibility to unassessed apprehensions but also formed the basis of subsequent judgments that hinged upon the fate of millions in Assam.

It is very important to know that while arriving at this conclusion, the Court relied heavily upon a report sent by the Governor of Assam to the President of India. This was a report sent in 1998 by then Governor of Assam Lt Gen S K Sinha (retd) stating unabashedly that there is an unabated influx of illegal migrants from Bangladesh into Assam which threatens to reduce the native Assamese people to a minority in their own home state. The report further stated that the Muslim population in Assam has shown a rise of 77.42 per cent between 1971 and 1991.

Based on population records and not accounting for a number of reasons such as migrations between districts due to floods, the report assumed that the rise of Muslim population must mean that there is a large scale migration from Bangladesh. In Para 22 of the report, it stated that no misconceived and mistaken notions of secularism should be allowed to come in the way of addressing the dangerous consequences of large-scale migration.

The Supreme Court, in its judgment, did not only stop at striking down the legislation, but it also went further in stating that there can be no manner of doubt that the state of Assam is facing "external aggression and internal disturbance" on account of large-scale illegal migration of Bangladeshi nationals.

Along with striking down the IMDT Act, the judgment called for all references being sent to Foreigners Tribunals to be decided as per Foreigners (Tribunals) Order, 1964 – thus, taking away the cover provided to a suspect foreigner.

The 2005 verdict became the bedrock for all future references in the judicial as well as political realm with regard to the perceived infiltration into Assam. The same threats of influx of illegal immigrants, relying heavily on the Sonowal verdict, are also found in the 2014 judgment of the Supreme Court, in a batch of petitions concerning constitutional validity of Section 6A of the Citizenship Act, 1955. Most recently, in the 2019 judgment in Abdul Kuddus vs. Union of India, relying upon the same 2005 verdict, Supreme Court denied any statutory right of appeal from the decisions of the Foreigners Tribunals (FT), albeit one may challenge the order of FT by way of a writ before the concerned High Court and from there to the Apex Court.

With the outcome of the final NRC indicating a mere 5 per cent of population in Assam being not eligible (at present) for inclusion in the National Register, the observations in the 2005 judgment and in subsequent judgments that relied upon the verdict in Sarbananda Sonowal are now bound to come under a cloud, apart from all the political rhetoric that was used to ridicule an entire community for political gains.

Since the 2005 judgment was based on facts and figures and relied upon by the Supreme Court, the present NRC which is again conducted under the constant watch of Supreme Court after 2014, seems to be an order of acquittal for an entire community.

(The author is an Advocate-on-Record practicing in the Supreme Court of India)