Can the National Register of Citizens procedure be saved from endemic contradictions? Can it really separate “illegal immigrants” from genuine “Indian Citizens”?

Such questions are coming back once again as a two member bench of Supreme Court allowed the process of “claims and objections” to begin from 25 September for the next two months. The bench did not state clear reasons for not allowing the earlier 15 documents of the “original modality” decided by a tripartite agreement but an indication is given in its acceptance of the report filed in sealed cover by Prateek Hajela, state coordinator of the NRC.

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As per the Supreme Court, the report is such that the sensitive nature of some of the information contained therein, if disclosed at this stage to any party, may affect the entire exercise. Therefore the SC kept the idea of accepting five documents like Citizenship and Refugee certificates open, subject to response from Hajela.

As it has been widely reported, Hajela earlier contended that there are cases of grave error in including names of many “illegal immigrants” or “foreigners” in the final draft. The hearing on 19 September in the SC could not resolve the issue of legacy data or date available on the 1951 census, which is currently being updated. On an earlier occasion, Hajela submitted before the court that there are cases of selling of legacy data and there is a “meeting of minds” between such fraudulent parties in claiming citizenship on the basis of someone else’s legacy data.

On the other side, former Army officers have been excluded from the NRC, which also excludes an INA veteran, who had been extradited to India by Myanmar. Similarly, out of the four million excluded people, a majority have their blood relations, such as parents or children included in the draft NRC, while they have been kept out.

In many cases, on being enquired why the name did not figure, the NRC Seva Kendras gave the reason as “no reason”. In some other cases, without explaining anything, the Seva Kendras cited “quality check” as the reason, thereby meaning that the documents were qualitatively not satisfactory.

This brings into picture the very idea of documentation attached to claims of citizenship. In order to support claims of being an Indian citizen, one is supposed to provide proof of one’s being in Assam before 1971 by furnishing at least one of the documents listed in the modality. The five documents, which the SC kept open, are originally listed in the accepted modality.

Documents such as Citizenship Certificate, Refugee Registration Certificate, Name in the 1951 NRC and name in electoral rolls up to 1971 et al were part of the modality, which have now been kept under temporary hold or suspension until the SC takes a call on them on 23 October, the day of the next hearing.

The point is constitutionally significant, as, for example, Citizenship Certificate issued by due authority under the Citizenship Act and it is the most invincible document that one can furnish. In a circular on 1 May, the state co-ordinator declared such a document as “weak document” with the reason that no back end copy to verify citizenship certificate is available with the state.

On the manner of verification of any record, which is issued by a public authority under law and possessed in private, is also public record, as per the Evidence Act of 1872. In the due process of verification of such records to decide upon the veracity of claims made on that basis, the schedule 4A of Citizenship Rules, 2003 stipulates that records be verified with the original, which in most cases is in possession of the claimant herself.

Can one get public records verified by issuing authorities? The chances are very slim yet in most cases the NRC authorities tried to do so. In a large number of cases, as can be guessed, issuing authorities are not in a position to verify records on time. Does that mean that a claimant be penalised by exclusion? In such cases going by law, it is possible to take “oral evidence” by witnesses and other such circumstantial evidence could have helped resolve cases before excluding a person from the draft NRC.

There is yet another unresolved legal issue on the matter of categorisation of people as “original inhabitant” and “non-original inhabitant”. The SC ruled that the NRC is not a procedure to determine who is an OI or NOI, rather it is a procedure to determine their citizenship, in which both are on the same pedestal, yet the verification reports prepared included this important categorisation.

This also brings out another constitutional issue —is there a definition of such terms in our Constitution? Such terminologies are used in 4A, which is drafted and enacted by the executive and the stipulation containing such terms has been implemented in the procedure of NRC in Assam.

As a result there is confusion between people in making claims and counterclaims of whether someone is an OI or not. One simple interpretation is heard in corridors of power — those whose surnames are not found outside Assam are OIs of Assam, which seems to be exclusionary, if not outright racist.

The complex historical reality of inclusion of various territories after the 1826 Yandabu Treaty, notably, the inclusion of the whole of lower Assam and ancient Kamrupa, created a complex and overlapping set of linguistic and cultural identities, regularly mismanaged by the powers that be. It had also given rise to the concept of “Bor Axom” or greater Assam.

Correspondingly, the notion of who is an Assamese or Asomiya has undergone “transformations”. The Bengalis of East Bengal origin, who are in Assam due to either, their lived territories being included or ceded from Assam, have been the biggest losers of this process of assimilation, as it was not always voluntary but was a response to circumstances. The victimhood of East Bengal origin people in genocides like Nellie, Mokalmua, Gohpur and others testify the fact that the quest for a unified Asomiya identity is still elusive.

The matter of finding a common set of linguistic and cultural co-ordinates from the past and the present led to imposition of claims and creation of social divisions between the native and the indigene, outsider and immigrant. The cognitive framework itself is tilted on this side or the other. Can the legality of the NRC, monitored by the SC, salvage it above this deeply divisive public discourse of “othering” that operates as a deep grammar of the whole procedure?

Finally the SC’s acceptance of 10 documents issued before 1971 — such as land deeds, permanent residential certificated from other states, passports issued until 1971, LIC papers, licence/certificate issued by govermental authority, service /employment proof in public sector, bank/post office accounts, birth certificates issued up to 1971, education certificates issued up to 1971 et al — assume that the government has back end proof of all such documents. It also assumes that those who are out of the list can have such documents prior to 1971.

This seems to be an affront on common sense. For example, was the state of Assam itself so organised as to issue such certificates prior to 1971? This also keeps open the fact that those who are not educated, those who do not have land, bank documents et al may not be regarded as Indian citizens.

Going by this the poor and marginalised will be left with no remedy unless the SC allows them a way out. Do they have to languish — if they cannot prove their citizenship with these highly systematised documents —in brand new detention camps?

The writer is a human rights activist and author based in Shillong.