NRC & Foreign Tribunals

Relevance:
GS-2 Issues and challenges pertaining to the federal structure

Context:  
Concerns about the names of people who have failed to show up in the final updated list of the National Register of Citizens (NRC) have been raised. However, even those whose names appear on the list have no assurance that they will not be deemed ‘illegal immigrants’ sometime in the future. They are the people for whom there is still no closure, no prospect of permanent security and dignity of citizenship. Home Ministry has said those who are left out will be given an opportunity to move the Foreigners Tribunals. The time limit to appeal has been increased from 60 to 120 days. 

Background:

Assam has been the largest recipient of migrants especially from Bangladesh (erstwhile East Pakistan). These migrants influenced the demography of the state and also caused loss of opportunities and posed a heavy burden on the state’s resources for the people who are native of Assam. 

National Register of Citizens (NRC) has been used as a tool to identify illegal immigrants of East Bengali (or now Bangladeshi) origin who entered Assam on or after 25 March 1971 – the date East Pakistan became Bangladesh – and have been living there since.

In the final NRC list published by the government has excluded 19 lakh persons. Now the questions arise – What will be the fate of these 19 lakh persons who have been declared foreigners according to the list.

Several religious and linguistic minority groups are also opposing the NRC as discriminatory and undemocratic.

What is the National Register of Citizens (NRC)?

National Register of Citizens, 1951 is a register prepared after the conduct of the Census of 1951 in respect of each village, showing the houses or holdings in a serial order and indicating against each house or holding the number and names of persons staying therein.

The NRC was published only once in 1951.

NRC in Assam- Series of Events

• The issue of its update assumed importance as Assam witnessed large-scale illegal migration from erstwhile East Pakistan and, after 1971, from present-day Bangladesh.
• This led to the six-year-long Assam movement from 1979 to 1985, for deporting illegal migrants.
• The All Assam Students' Union (AASU) led the movement that demanded the updating of the NRC and the deportation of all illegal migrants who had entered Assam after 1951.
• The movement culminated in the signing of the Assam Accord in 1985.
• It set March 25, 1971, as the cut-off date for the deportation of illegal migrants.
• Since the cut-off date prescribed under articles 5 and 6 of the Constitution was July 19, 1949 – to give force to the new date, an amendment was made to the Citizenship Act, 1955, and a new section was introduced.
• It was made applicable only to Assam.
• There had been intermittent demands from AASU and other organizations in Assam for updating the NRC, an Assam based NGO filed a petition at the Supreme Court.
• In December 2014, a division bench of the apex court ordered that the NRC be updated in a time-bound manner.
• The NRC of 1951 and the Electoral Roll of 1971 (up to midnight of 24 March 1971) are together called Legacy Data. Persons and their descendants whose names appeared in these documents are certified as Indian citizens.

What is the Assam Accord?

• In 1985, the Indian Government and the All Assam Students’ Union (AASU) signed the Assam Accord. Through this accord, all those foreigners who had entered Assam between 1951 and 1961 shall be given full citizenship including the right to vote.
• All those migrants who came to Assam between 1961 and 1971 will be denied voting rights for 10 years but enjoy citizenship rights.
• People who entered the state after 24 March 1971 will be treated as foreigners and will be deported.

Purpose: To separate “illegal” immigrants from “legitimate” residents of Assam.

Nodal Agency: Registrar General and Census Commissioner India.

Who is doing this updation?

The state government machinery under the Registrar-General of India. Citizenship being a subject on the Union List, the Centre is responsible for the policy decisions, guidelines, and funds for the NRC update.

How updation of NRC was done?

The criteria to identify the residents of Assam were done on the basis of the Assam Accord. The people were excluded on the basis of the following criteria:

1. Doubtful Voters: These have disenfranchised as they failed to prove their citizenship.
2. Descendants of Doubtful voters
3. Persons whose cases have been pending before the foreigners’ tribunal.
4. Descendants of persons whose cases are pending before the foreigners’ tribunal

Eligibility to register under the updated NRC:

• People whose names appear in the 1951 NRC List
• People whose names appear on the voter list up to the midnight of March 24, 1971
• Descendants of the above.
• People who entered India between January 1, 1966, and midnight of March 24, 1971, and declared by foreign tribunals as Indian Citizens.
• Persons who are original inhabitants of Assam and their children and descendants who are citizens of India.
• Persons who can provide any one of the following documents issued upto midnight of 24th March 1971 as mentioned in the list of documents admissable for citizenship.

Why was Midnight of March 24, 1971, selected as the cutoff date?

Midnight of March 24, 1971, was the time agreed on in the Assam Accords. March 25, 1971, is when the Bangladesh Liberation War began. Thus it was assumed the major migration would have happened after the Werst Pakistan planned a crackdown on the East Pakistan Army on March 25. 1971. Hence this date was selected. 

The methodology of determination of citizenship apart from NRC

Election Commission’s D-Voter category: Introduced in 1997 during roll revisions, this exclusive-to-Assam voter category effectively strips a suspected foreigner or ‘illegal’ immigrant of voting rights or bars them from applying for a Voter ID in the future;

Foreigner Tribunals: First introduced by virtue of the Illegal Migrants (Determination by Tribunal) (IMDT) Act of 1983, and later reintroduced in 2005 under the Foreigners Act 1946, these tribunals issue summons to suspected ‘illegal’ migrants, both D-Voters and through direct referrals of the Assam Police’s border wing. Once a tribunal declares a foreigner as an illegal person, he or she is sent to a detention camp or deported to Bangladesh.

Impact

• An updated NRC is likely to put an end to speculations about the actual number of illegal migrants in Assam in particular and the country in general.
• It will provide a verified dataset to carry out meaningful debates and implement calibrated policy measures.
• Publication of an updated NRC is expected to deter future migrants of Bangladesh from entering Assam illegally.
• The publication of the draft NRC has already created a perception that staying in Assam without valid documentation will attract detention/jail term and deportation.
• More importantly, illegal migrants may find it even more difficult to procure Indian identity documents and avail of all the rights and benefits due to all Indian citizens.
• Inclusion of their names in the NRC will provide respite to all those Bengali speaking people in Assam who have been, hitherto, suspected as being Bangladeshis.

Challenges

• Flawed Process – People who found themselves on the first list that was released on January 1, 2018, didn’t find their names in the second. Even the family of a former President of India did not mention on the list.
• The parallel processes of NRC, the voters' list of the Election Commission, and the Foreigners’ Tribunals with the help of the Assam Border Police have led to utter chaos, as none of these agencies are sharing information with each other.
• Though the draft provides a window for re-verification, due to a large number of people being excluded from the list, it will be very difficult to physically verify all of them.
• Since such ‘non-citizens’ can resort to judicial relief to substantiate their citizenship claim, it can lead to overburdening of the judiciary which already reels under a large number of pending cases.
• There is uncertainty about the future of those left out from the list.
• Expelling them to Bangladesh is not an option since Dhaka has never accepted that they are its citizens or that there is a problem of illegal immigration. In the absence of a formal agreement, India cannot forcibly push the illegal migrants back into Bangladesh.
• Moreover, raising this issue can also jeopardize relations with Dhaka. Such an attempt would not only damage bilateral relations but also sully the country’s image internationally.
• Apart from deportation, the other option is large scale detention camps – which is an unlikely option for a civilized democracy like India.
• Another option is instituting work permits, which would give them limited legal rights to work but ensure they have no political voice. However, it is not clear what will be the fate of children of such individuals.
• With no end to uncertainty, NRC seems to be a process without an end.

FOREIGN TRIBUNALS

Nearly 40 lakh people were excluded from the final draft. In the course of the year, 36 lakh people filed claims against the exclusion; the remaining four lakh did not apply. These claims which are filed are heard by the Foreigners Tribunal. 100 Foreigners Tribunals currently exist across the State. 

Now, the final list of NRC is to be published by August 31 and to give a proper hearing to those excluded from the final list and to handle the influx of applications, the Ministry of Home Affairs sanctioned 1,000 additional F.T. to be setup in Assam. 

FT is headed by a member appointed under the Foreigners Tribunal Act, 1941 and Foreigners (Tribunal) Order, 1984. Specific guidelines are issued by the government from time to time.

A member can be a retired judicial officer of the Assam Judicial Service, a retired civil servant not below the rank of Secretary and Additional Secretary with judicial experience, or a practicing advocate not below the age of 35 years and with at least seven years of practice. The member is also required to have a fair knowledge of the official languages of Assam (Assamese, Bengali, Bodo, and English) and the State’s historical background giving rise to the foreigners’ issue.

Lacunas in the functioning of Foreigners Tribunal

1. Qualifications to serve on the Tribunals have been progressively diluted and the vague requirement of “judicial experience” has now been expanded to include bureaucrats.
2. Tribunals are given sweeping powers to refuse examination of witnesses if in their opinion it does not serve any purpose to the case at hand. Further, tribunals need not give reasons for their findings or orders. This makes the entire process more arbitrary.
3. Tribunals are left free to regulate their own procedure for disposal of cases.

Problems in dealing with cases of NRC by the Tribunal

• 64,000 people have been declared non-citizens in ex-parte proceedings, i.e., a proceeding where the other party was not heard. Most of the time, people in Assam are not served notice about the date of their hearing. Hence, they are left with little recourse to do after passing the date of their hearing.
• For most officials at the Tribunals, deciding about the citizenship of a person is a mere mechanical process. However, such a decision rendering a person stateless impact not only on their citizenship but various rights which accrues to them through citizenship including basic human rights.
• Thus, the process followed by the Foreigners Tribunal has resulted in fundamental dehumanization and devaluation of individuals that have enabled the manner in which the Foreigners Tribunals operate.
• The onus to prove citizenship lies in the person who is accused of being a non- citizen. In this aspect, parliamentary legislation that sought to place the burden upon the state was struck down as being unconstitutional.

Way Forward

India, as a country which follows the ideology of ‘Vasudhaiva Kutumbakam’, should not be hasty in taking decisions that can disenfranchise her citizens – contradicting its centuries-followed values.

The need of the hour is that Union Government should clearly chart out the course of action regarding the fate of excluded people from final NRC data and political parties should refrain from coloring the entire NRC process through electoral prospects that may snowball into communal violence.

There is a need for a robust mechanism of legal support for the four million who have to prove their citizenship to India with their limited means.