FINAL NRC LIST KEEPS OPEN LEGAL WRANGLINGS
By Amritananda Chakravorty
For the millions of people in Assam who were waiting with dread on their citizenship claims, the ‘D’ day finally arrived on 31st August, 2019 when the final list of National Register of Citizens (‘NRC’) was published. In all, 3,11,21,004 persons are included in the NRC, while 19,06,657 persons residing in Assam have been excluded, inclusive of those who did not submit their claims, thereby proving that out of 3.3 crore applicants, more than 95% has been included in NRC. Even the 5% individuals who had been excluded from NRC can appeal to the Foreigner Tribunal in Assam, and would get another opportunity to prove their claim that they are citizens of India within 120 days of NRC publication. When the draft NRC list was published in July, 2018, more than 40 lakh persons were left out, which got reduced by more than 50% in the final list.
However, the publication of final NRC was accompanied by several reports of genuine citizens being left out of the NRC, including those with all valid documents, but owing to some discrepancy, their names were not included in the final list. In fact, even the BJP led Assam Government complained that many alleged ‘genuine citizens’, i.e., Bengali Hindus found their names missing from the NRC, while the champions of the NRC, i.e., Assam Public Works and All Assam Students Union (‘AASU’) were left with egg on their faces with the final number of exclusions from NRC, since it exposed their completely false claims of Assam being overrun by the ‘Bangladeshi infiltrators’.
The rhetoric of ‘illegal Bangladeshis’ had permeated through not just the body politic of Assam, but of the entire government machinery. In 2016, Kiran Rijuju, the Minister of State for Home, had stated in Rajya Sabha that according to the government, there were 2 crore Bangladeshi illegal migrants residing in India, without valid documents. In fact, in 1997, Late Indrajit Gupta, the then Home Minister of the United Front Government said in the Parliament that there were more than 10 million illegal Bangladeshis in India, with Assam having 4 million people. In all these statements aka rhetoric, no actual data/evidence was provided.
The bogey of infiltration has been fully busted, even though the NRC has widely termed as a flawed exercise, which had excluded lakhs of persons who had been born and living in Assam for generations. If that is the case, then the real exclusion numbers would be lot lesser. The final NRC has rattled all these groups so much that many plan to approach the Supreme Court again for ‘re-verification of NRC’, which is unlikely to happen.
This brings us to the question whether the Supreme Court should ever have intervened in the NRC process. On one hand, being a court monitored process lends the NRC exercise a solid legitimacy, and also an assumption of being fair and unbiased, while on the other hand, the question remains whether the Court should have facilitated the NRC process or questioned the entire idea of NRC itself, which is fraught with inconsistencies, especially in a poorly governed country like India.
In fact, the Supreme Court itself gave credence to the unverified and fear mongering numbers of millions of Bangladeshi ‘foreigners’ residing in Assam, thereby causing ‘external aggression’ or ‘internal disturbance’ in Assam, which the Union Government failed to prevent, in Sarbananda Sonowal v. Union of India (2005). In Sonowal, the Supreme Court was dealing with a challenge to the constitutional validity of Illegal Migrants (Determination by Tribunals) Act, 1983 (‘IMDT Act’), which provided for the “establishment of Tribunals for the determination, in a fair manner, of the question whether a person is an illegal migrant to enable the Central Government to expel illegal migrants from India”.
It was contended that the IMDT Act was too strict, and did not identify the illegal migrants quickly, which was agreed to by the Apex Court that noted that “it is far more easier to secure conviction of a person in a criminal trial where he may be awarded a capital punishment or imprisonment for life than to establish that a person is an illegal migrant on account of extremely difficult, cumbersome and time consuming procedure laid down in the IMDT Act and the Rules made there under.”
Thus, instead of ensuring due process is followed in the implementation of the IMDT Act, the Court was upset that the Act was detecting ‘foreigners’ quick enough and in large numbers. Further, the Court also observed that “the influx of Bangladeshi nationals who have illegally migrated into Assam pose a threat to the integrity and security of north-eastern region. Their presence has changed the demographic character of that region and the local people of Assam have been reduced to a status of minority in certain districts.”This is the exact sentiment of AASU and other Assamese groups as well as the BJP that have driven the entire NRC exercise in recent times.
Sonowal laid the judicial foundation of the misleading and dangerous rhetoric of ‘large scale influx of illegal migrants from Bangladesh making India’s borders porous and vulnerable’, without any factual basis, and this dangerous legacy was then carried forward in Assam Public Works v. Union of India, where Section 6A of the Citizenship Act was challenged, and is still pending before the Constitution Bench of the Supreme Court. (IPA Service)