Citizenship is a Unique Ordeal for the Assamese, Thanks to the Law

The law allows there to be a different set of rules to be applied to ascertain citizenship of those from Assam.

Why is this whole NRC business such a big deal?

Over 40 lakh people in Assam or from the state have been excluded from the second draft of the National Register of Indian Citizens (NRC), which was released on Monday, 30 July. The NRC is supposed to separate illegal immigrants in Assam from those who have a right to be there, and is meant to be a definitive list of citizens from the state.

While this seems innocuous enough, the situation in Assam is more fraught because it requires everyone in or from the state to submit documents to prove they are not illegal immigrants, rather than the state identifying suspected illegal immigrants and then asking for proof.

What this means is that even those who were born in Assam, have grown up there, paid taxes, voted, and whose families have also done so, also need to prove they’re not illegal immigrants. The long-standing MLA or MP who everyone knows and who knows everyone, the social worker who’s dedicated their life to social service in some remote area, even the patriotic jawan standing guard in Siachen, whose home is in Assam. All of them could find themselves facing deportation if they don’t find themselves on the final version of the list.

And this could happen even if they have submitted a valid birth certificate, have residence proofs, voter ID cards, even passports, because to qualify for the NRC, they have to also show legacy data for their families – going all the way back to 1951.

How many of those outside Assam would have been able to show the documentation to prove that? And even if they were, how accurate would it have been? After all, we find discrepancies in our documentation even today, and back in the day, this used to be even more prevalent.

Sounds unfair? You’re not alone. Unfortunately, all of this isn’t just being done on some whimsical basis – the law actually allows there to be an entirely different set of rules to be applied to (effectively) ascertain citizenship of those from Assam. Here’s how this works.

Aren’t all people born in India citizens of the country?

Not all of them. Children of foreign diplomats or enemy aliens born in India are anyway excluded from citizenship. For all others, it depends on their date of birth. According to Section 3 of the Citizenship Act 1955 (as amended), this is how it works:

1. DOB from 26 January 1950 - 30 June 1987: They are a citizen by birth.
2. DOB from 1 July 1987 - 2 December 2004: They are a citizen if born in India AND either parent is a citizen of India at the time of the person’s birth.
3. DOB from 3 December 2004 onwards: They are a citizen if born in India AND either both parents are born in India, or one parent is a citizen and the other is not an illegal migrant at the time of birth.

How are things different for the people in Assam?

Strictly speaking, things are only supposed to be different for people in Assam who are covered under the Assam Accords – that is, foreigners who have come to Assam. However, the mechanism used to decide who’s a foreigner and who’s not is the NRC, and so effectively it has created a different process for everyone in Assam.

People, thus, have to show that either they or their families were on the original NRC compiled in 1951, or the electoral rolls in Assam up to 1971. If they can’t show electoral rolls, other documents like tenancy records, passports etc for that time will suffice.

How can there be a different set of criteria for Assam?

That’s because the Citizenship Act itself allows this. Section 6A was added to it in 1985, to reflect the Assam Accords, which created a threefold system to separate illegal immigrants from original residents and legal migrants:

1. All residents of Assam who entered the state until 1 January 1966 would be regularised.
2. Those who came between 1966 and 25 March 1971 would be disenfranchised for ten years, then deemed to be citizens.
3. Foreigners who came to Assam on or after 25 March 1971 would continue to be detected and deported.

The requirements to show connections with the 1951 NRC and pre-1971 electoral rolls come from Rule 4A of the Citizenship Rules (meant to facilitate the Citizenship Act), which was added in 2009 after pressure in the state to implement the Assam Accords.

Do all citizens of India need to prove their citizenship? Do all of us need to apply to be on a National Register of Indian Citizens?

No, there is no requirement for the average Indian citizen to prove their citizenship, or get their name added to a register. The Citizenship Rules 2003 do envisage a nationwide register, but this has not been put into place.

So effectively, people in Assam have to do something nobody else in India has to. Isn’t that unconstitutional?

Cases have been filed before the Supreme Court challenging the constitutionality of Section 6A of the Citizenship Act (which forms the foundation for all of this), though the challenges are actually predicated on harm to the state of Assam because Section 6A allows a different system of regularisation for illegal immigrants as compared to the rest of the country.

Justices Rohinton Nariman and Ranjan Gogoi were hearing these cases in 2014, but while they ordered the updated NRC to be finalised (by 31 January 2016, a deadline that has been left far behind), they referred the constitutionality questions to a Constitution Bench. No progress has been made on the cases since.

So what options do the 40 lakh people excluded from the second draft of the NRC have?

At this moment, the best those excluded from the list can do is attempt to get themselves included in the final NRC, which is to be prepared by 31 December 2018.

There will be a window from 30 August to 28 September to file forms to demonstrate they have been wrongly excluded from the list. Those who made their original application to be on the NRC before September 2015 can fill in new claim forms, while others can file corrections.

This whole process is complicated because most of those excluded from the list will not even be informed why this is happening. Only 1.5 lakh of the excluded people – whose names were part of the first draft of the NRC published in December 2017 – will be informed of the reasons for their exclusion, reported The Times of India. Others will have to file an application with the local registrar to know why they were excluded.

What happens after the finalised NRC is published in December 2018?

There is no clarity about what will happen to those who don’t make it to the finalised NRC. Till it is out, the Supreme Court has reiterated that no action can be taken against anyone not on the draft lists, and Home Minister Rajnath Singh has confirmed that nobody would be declared a foreigner till then.

After the final list is out, however, the fates of those not on the list will rest with the Foreigners Tribunals which make determinations of who is a foreigner and who should be deported. Deportations will then need to be ordered by the Centre, but it is difficult to say how they will deport people to Bangladesh or other countries since those countries are unlikely to accept them.