Nearly three months after the final National Register of Citizens was published, on 31 August, nineteen lakh residents of Assam who were left off the list are yet to receive rejection notices explaining the grounds of exclusion. These residents are granted a 120-day period to appeal before the Foreigners Tribunals. Since the appeal lies against the reasons for rejection, this period cannot begin until the notices are issued. In fact, the Registrar General of India is yet to even officially publish the NRC in the Gazette of India, in the absence of which the document has no legal sanction.
Meanwhile, on 26 November, the Supreme Court case monitoring the NRC project was listed for hearing for the first time before the recently appointed chief justice of India, Sharad Arvind Bobde, who presided over the case with the judges Sanjiv Khanna and Surya Kant. A batch of NRC-related petitions that had been clubbed together were listed for hearing. Among these is an application filed by the Brahmaputra Civil Society and the Justice Forum Assam—both Assam-based organisations that have been involved in field research, advocacy and legal interventions on the NRC. The groups sought directions from the court to frame a standard operating procedure applicable to Foreigners Tribunals while adjudicating the NRC appeals. Ultimately, the case was not taken up on the day, and is yet to be listed for a new date.
The day before it was listed for hearing, Arshu John, an assistant editor at The Caravan, spoke to Abdul Batin Khandekar, the working president of the Brahmaputra Civil Society, about the current issues concerning the NRC that have been left unresolved after its publication. This included the status of doubtful voters, or D-voters, who were suspected of residing in Assam illegally, and consequently left out of the NRC. Individuals are designated as D-voters by the Election Commission and Border Police officials, and they have to prove their citizenship before the Foreigners Tribunals. Among other things, Khandekar discussed four key issues that he believed needed to be resolved before the appeals process against the NRC exclusions could begin.
Arshu John: At present, after the publication of the NRC, what are the issues that are left unresolved?
Abdul Batin Khandekar: There are four or five issues. First is the issue of D-voters. At this stage, after the final publication of the NRC, what will be the fate of these D-voters? Whether they will go for NRC appeal or whether there will be a case referred by the competent authorities. This is not clear. Around 1,20,000 voters are marked as D-voters, what will happen to them? When the draft NRC was published in July 2018, the determination of their citizenship was put on hold. Today, after publishing the final NRC, their claim has been rejected without any evaluation. Some of them have been waiting since 1997, some since 2010. For twenty years there has been no reference, there is no certainty that their cases will be referred now. What will happen now? What will happen to their descendants? Even if they allow them to appeal the rejection before the Foreigners Tribunals, it is a good thing, because they will get a chance to produce their documents.
But the unfortunate thing is that they have lost one opportunity already, because their application did not undergo any evaluation during the NRC process. When they were marked D-voters also there was no evaluation, I have the documents that show that, I had filed RTI applications.
The second issue is that there are several thousands of people who were marked D-voters and were subsequently declared Indians by the Foreigners Tribunals, but the NRC authorities did not consider their cases. They have already been cleared by the Foreigners Tribunals, but because they have not been included in the NRC, they will now have to appeal before the tribunals again. This number is not in hundreds, it is in thousands. We want that the district magistrate should be given the power to pass an order of inclusion for those people who were already declared Indians by the Foreigners Tribunals.
AJ: What RTIs had you filed and when?
ABM: I had asked for copies of the notice issued to D-voters providing them an opportunity to produce the documents proving their citizenship, and for copies of the verification report on the basis of which the people were finally marked as D-voters.
We had filed the RTIs in January 2018. We also filed a writ petition. We filed the RTIs before the election officers of all the districts in Assam, and all of them responded that they have no such records. This ambiguity about D-voters needs to be resolved.
AJ: Were the D-voters declared Indians before 31 August or after?
ABM: They were declared before and they had produced the orders before the NRC authorities but the authorities were totally hostile to them. I am saying this after we have roamed around ten–fifteen districts in Assam and spoken to people. We have not done a proper survey, it is based on our knowledge from our visits and the responses we have received on social media. But it is true. It is an obvious fact. The NRC authorities have not considered the strength of the orders.
AJ: On what basis did the NRC authorities refuse to consider the orders?
ABM: It is completely arbitrary. What happened is that the final extension that was taken in July 2019 was primarily for increasing the number of exclusions. There was so much pressure on the NRC authorities. The local media in Assam was talking about how they would not accept the NRC if the number of exclusions was less than 40 lakh, how they would do this and that. They created an atmosphere [owing to which] the NRC authorities were under so much pressure. So they started excluding people who were D-voters.
The third issue [pending after the NRC was published] is the case of people who wrongly identified their ancestors. The people who applied using legacy documents of wrongly identified ancestors, during the family-tree verification, they got excluded. But they were not allowed to change the legacy person during the claims process. They had to file their claims on the basis of the wrongly identified ancestors again, so they were excluded on that basis. They should have been given an opportunity to produce the documents of a legally acceptable ancestors. These are poor, illiterate people, there is a lot of scope for getting things wrong. [A legacy document refers to a document that identifies an applicant’s ancestor who was in Assam before March 1971, the cut-off date as per the Assam Accord, such as voter rolls or the NRC published in 1951. A linkage document refers to the documents tracing an individual’s legacy to an ancestor.]
The fourth issue concerns an order passed by the Supreme Court on 13 August 2019. As far as citizenship is concerned, the NRC authorities are aware of the citizenship status of an applicant’s parents. Section 3 of the Citizenship Act states that for those who were born earlier than 3 December 2004, if either of your parents are citizens, then they would treat you as a citizen as well. But the order states that the person with whom you submitted the linkage documents—only if they are not a doubtful citizen will you be considered a citizen. But the law is clear. Even if one of the parents is a foreigner—not just doubtful, even if one is a foreigner—and the other is Indian, the person will get citizenship. But the order states that after you link your documents to one ancestor, if they area citizen, only then will you become a citizen. The order put a condition, that you will be treated as a citizen only if you link your documents through a citizen. This increases their exclusion numbers.
Now this point, it remains in the appeal as well. You are not allowed to change your linkage documents in the appeal process. Then there is no purpose left in the appeal. This is totally against the law. The Citizenship Act states that if you born before 1987, then even if both your parents are citizens, then you should get citizenship. That was not considered either. On the other hand, those born after December 2004, even if one of their parents is not an Indian or doubtful, they have not been given citizenship. They have used Section 3 in a piecemeal manner just to increase the exclusions. Our request is that if either of the parents is an Indian citizen, then they should be allowed to prove it in the appeal.
All these issues need to be resolved before the appeals process can begin. For this, there needs to be a new SOP for Foreigners Tribunals for the appeals process, which can address and resolve all these issues.
AJ: What will be the nature of the proceedings before the Foreigners Tribunals during the appeals process? Will it be similar to the process before the NRC authorities, as cases for inclusion? Or will it be like proceedings before Foreigners Tribunals in D-voter cases?
ABK: It will be different depending on whether the reason for rejection is the legacy document or the linkage document. For those whose linkage documents were rejected, it will be relatively easy to find new documents to link yourself to your ancestor. But if your legacy documents were rejected, then it will be as good as a Foreigners Tribunal case.
AJ: It has been widely reported that Foreigners Tribunals act with a bias and motivation to declare foreigners. Given that, how do you think the tribunals will be during the appeals?
ABK: We are scared about this. It is because the evaluation of the tribunal members is based on the number of foreigners they declare. This is also why we need an SOP for Foreigners Tribunals.
AJ: Is that one of the things you have sought in your application before the Supreme Court?
ABK: We have prepared a draft SOP and we have submitted it to the court. It has been tagged with the main case, but it has never been taken up for hearing. In any case, we don’t expect our application to be heard tomorrow [on 26 November]. We are keen to observe how the new chief justice hears the case.
This interview has been edited and condensed.