The ongoing updation of Assam’s National Register of Citizens followed the directives of a two-member bench of the Supreme Court but the methods applied by the authorities for verification are quite novel and unheard of.

Does anyone in the rest of the country know about “legacy data” and “family tree”? Indeed this Assam-specific provisions in the Citizenship (Registration of Citizens and Issue of Identity cards) Rule, 2003 under section 4A creates unheard of categories like “original inhabitant”(under clause 3.3) and “parental linkage” (under clause 4.4) to verify the antecedents of an applicant for inclusion in the updation process.

The burden of proof is shifted to the applicant in case of any doubt, while an administrative memo issued by the Union home ministry in 2015 directed confiscation of various documents collected through valid means from such suspected category of individuals and people.

Although the Centre’s instructions are meant for the whole of India, yet in the case of Assam, it has negative ramifications and harassment for the so-called suspects. Can suspicion be the basis of jurisprudence and, on this basis, the status of an innocent citizen altered?

One may be curious to know the ideas behind “legacy data” and “family tree”. The former was published by the NRC authority of Assam allotting code numbers to all the names included in the 1951 Census as well as in electoral rolls up to 1971. The applicants have to refer to such names to establish their antecedents.

The matter, however, is more complex than one thinks. Because, many electoral rolls since 1952 are not available, as undivided Assam, prior to 1971, included the United Khasi and Jaintia Hills (now Meghalaya), Naga Hills (Nagaland), Mizo Hills (Mizoram) and their electoral rolls were not readily available. Indeed the 1951 Census was so incomplete that many districts and places do not find mention therein. Some places do not exist anymore.

As far as the “family tree” is concerned, the NRC authorities have deployed such a concept to weed out fake legacy claims in cases where family-wise unrelated people referred to the legacy of the same ancestors. The procedure assumes that the validity of an individual’s claim to citizenship lies in genuineness of his/her belonging to the same line of descent from a common ancestor. But the problem is that families get dispersed, members of the same family get separated and live apart in different contexts and hence all of them have to be forced to accept each other as members of the same family.

Separated, estranged and divorced members of a family will now get legal notices to testify each other’s claim of common belonging, all because of shared legacy data of common ancestors. If the Citizenship Act, 1955 had stated such a procedure, it could have been deployed in the whole country and then probably the Assam-specific application of such an invented procedure could have had a reasonable legitimacy.

This takes us back to a little bit of history of independent India’s extremely ingenuous story of adult franchise and preparation of electoral rolls. Ornit Sahni’s (Faculty at University of Haifa, Israel) book entitled, How India Became democratic: Citizenship and Making of the Universal Franchise (2018),  records with due diligence that transition to adult franchise had an Assam-specific obstacle in registration of Partition refugees leading to historic declaration by BN Rau, advisor to Constituent Assembly of India, that all refugees have to be registered on mere intent of staying at a place and their names should be included in the electoral roll of the place.

Against this, many civil society bodies of Assam wrote to the Constituent Assembly asking for exclusion of those people who are not born in Assam, causing concern among victims of Partition from being excluded from citizenship of India. Needless to say that such contestation did not arise in case of refugees from West Pakistan in due process of registration and enfranchisement!

This bit of history tells us that the newly-independent state of India was sensitive enough to recognise humanitarian concerns post-Partition and the same continued through the Indira-Mujib agreement (1972), the 1985 Assam Accord, and the  Centre’s granting of residency in India to displaced refugees who came from neighbouring countries following religious persecution and other forms of civil and political disturbances.

The only difficulty was that the latest ordinance excluded persecuted Muslims, by going against the spirit of secularism and non-discrimination on the basis of religion or any other such social categories. What happened to many non-Muslim detainees who are languishing in various detention camps, post-2015, is a matter of grave concern as the Centre’s ordinance has pushed many to detention camps. The number of detainees is on the rise, while many are able to prove themselves to be genuine Indian citizens despite initial arbitrary proceedings against them.

In such a context of uncertainty, certain organisations, led by former insurgents, demanded that land rights be limited to indigenous communities, excluding tea tribes, who have been in Assam prior to the 1826 Treaty of Yandabo with then governor of Burma.

Certain other organisations want Assam divided to create a Union Territory. The atmosphere is dominated by legal procedures of an uncertain kind and suspicion between communities asserting their homeland claims. In the Bodoland autonomous areas, there is already a ban  on owning land by non-Bodos and the picture is getting murkier as many residents fear they may be declared stateless, disenfranchised and deprived of their fundamental rights guaranteed in the Constitution.

The constitutional right to citizenship, which is subject to fulfillment of specific conditions, allows an escape route for those who are non-citizens. They are guaranteed right to life, which includes right to livelihood with only a restriction on participation in the electoral process, but gives an expansive definition of personhood based on dignity and freedom from inhuman treatment are given a go-by in such a situation.

Added to this is a process of deportation by force across the border in no man’s land or restriction of fundamental rights of freedom of movement to residents of an enclave by security forces — this has a larger ramification of a “state of exception” in the making. As if along with checkpoints, there are racial and political categories of suspect and a process of isolating them for penal retribution by wielding new forms of administrative powers. Does this gel with a vision of equality before law and equal citizenship, as it is not just a matter of a particular state but the whole of India?

The unintended consequence of this process of NRC updation in terms of racial “othering” and profiling led to severe social conditions. The suicides of Hanif Khan and Bijit Sen are two cases that point to the helplessness of ordinary citizens before this procedure of NRC updation in which right to legal redress is taken away. Hanif Khan, as revealed by his wife, believed that he would be beaten up by the police as he thought his name will not figure in the updated NRC. If this is the perception created among linguistic and religious minorities by a process, which is supposed to uphold constitutional values, the task of a democratic state has to be much more sensitive.

Bijit Sen’s helplessness and anomie cannot be downplayed as a mere psychotic response of a victim. Indeed the victim’s testimony tells volumes about the kind of agony and anxiety created by the uncertainty involved in this scrutiny.

The diversity of India’s citizens in terms of multicultural and multi-religious background of peoples, which still creates confusing identities, cannot be legally reduced to “legacy data” and “family tree”, as the basic spirit of inclusion accepted by the Constituent Assembly, has to be upheld in all cases.

The writer teaches Philosophy at North Eastern Hill University, Shillong