Doubts Over Accuracy Of 1951 NRC And Its Updation Process In Assam
The NRC process is going on even when the challenge against constitutionality of Sec.6A of Citizenship Act is pending in SC.
India is one of the very few countries in the World, which has a proud history of holding Census every ten years. The Indian Census has a very long history behind it. The first census of Independent India was conducted in 1951, which was the seventh census in its continuous series. The enumeration period of this Census was from 9th to 28th, February 1951. A three-day revision round from 1st to 3rd March was undertaken to update the data as on sunrise of 1st March, the reference date. An Individual Slip was canvassed which contained 14 questions. The particulars like name, relationship, birthplace, sex, age, economic status, principal and subsidiary means of livelihood were obtained for each individual. The information on religion, mother tongue, literacy was also obtained. Out of 14 questions, 13 questions with its subparts were common for all states while 1 question with subparts relating to fertility, unemployment, infirmity, size of the family was optional for certain states. After completion of Census 1951, the central government ordered for preparation of NRC. But the legal and political meaning and usages of this NRC had remained dormant for all other states except Assam. In Assam, NRC 1951 was prepared only by incorporating responses of 11 questions obtained from individual during Census 1951. In other words, NRC 1951 was prepared in the state of Assam by transferring Response / Data of 11 questions out of 14 questions and 3 questions were excluded. These three excluded questions are as follows:-
(Q.No.6) whether the respondent was a "displaced person"? (Q.No.8) Bilingualism ? (Q.NO.13)(1) Indigenous Person: - (a) whether the respondent was "an indigenous person of Assam"? (b) If so, State in the nearest bigha- (i) the land you own; (ii) the land you have rented in cash or in-kind from others.
Surprisingly, the Census reports do not explain why these three questions were excluded from NRC 1951 of Assam. The census data was recorded manually before 1961 after 1961 data was captured electronically. National Register of Citizens (NRC) means the register containing the names of Indian citizens. National Register of Citizens, 1951 is a register prepared after the conduct of the Census of 1951, in respect of each village showing the houses or holdings in a serial order and indicating against each house or holding the number and names of persons staying therein. These registers covered each and every person enumerated during the Census of 1951 and were kept in the offices of Deputy Commissioners and Sub Divisional Officers according to instructions issued by the Government of India in 1951. Later, these registers were transferred to the Police in the early 1960s. Assam is the only state in the country that has an NRC. The NRC 1951 was prepared under the purview of the Census Act, 1948.
But, Section 15 of the Census Act, 1948 will make such records of census neither open to inspection nor admissible in evidence. Section 15 of the Census Act, 1948 runs as follows:-
"15. Records of census not open to inspection nor admissible in evidence :- No person shall have a right to inspect any book, register or record made by a census-officer in the discharge of his duty as such, or any schedule delivered under section 10, and notwithstanding anything to the contrary in the Indian Evidence Act, 1872,no entry in any such book, register, record or schedule shall be admissible as evidence in any civil proceeding whatsoever or in any criminal proceeding other than a prosecution under this Act or any other law for any act or omission which constitutes an offence under this Act."
The NRC of 1951 was challenged by Bhanbhasa Seikh alias Banbasha before Gauhati High Court in the year 1967, which in 1969 ruled that it was not admissible as evidence of citizenship. Similarly, in another case being W.P.(C) No.6090 of 2016 (Abdul Majid –versus- union of India), the Gauhati High Court opined in para 11 of the Judgment dated-15-03-2018 as follows-
"NRC 1951 was prepared on the basis of the Census Act, 1948. As per section 15 of the Census Act, 1948, records of census are not open to inspection and thus not admissible in evidence. Therefore in Bhanbhasa Sheikh versus Union of India, 1970 Assam LR 206, a single Bench of this court categorically held that NRC extracts produced to prove domicile in India is not admissible in evidence for any purpose. We are in complete agreement with the views expressed by the learned Single Judge in Bhanbhasa Sheikh (supra)."
In an article in the Economic and Political Weekly "ASSAM-National Register of Citizens, 1951" Vol. 16, Issue No. 8, 21 Feb, 1981 opposing the AASU's demand to make the 1951 NRC the base to identify 'foreigners' in the state of Assam, Anil Roy-choudhury wrote-
"…..the authors of the NRC were the enumerators by whom the Census was done. Its basis was the information collected during the census. The enumerators had to complete the work of enumeration in only 20 days. If due to under-enumeration in an area or otherwise the name of a person was omitted in the census, then his name was automatically excluded from the NRC also, and if a person was accidently not enlisted, he had no opportunity to get enlisted in the NRC subsequently. He could also not file objections. As the NRC was not publicly exhibited and was not a public document, a person could not even know if his name was at all included. The whole matter rested on the whims of the enumerators or their supervisors, a completely one-sided affair. No indication was given to the people of the terrible consequences which might overtake them at some future date if their names were not included in the National Register of Citizens, 1951. Nobody knew at that time due to the mistake or inefficiency or worse, of an 'unqualified' or 'ill-qualified' enumerator, he and his descendants would be declared to be foreigners at some future date and face deportation."
NRC 1951 document was not complete and as it was a secret administrative document, people could not verify it. The Assam Government admitted in the State Assembly that the NRC of 1951 is not available in Cachar, Karbianglong, Baksa, Chirang, Dima Hasao and Sivsagar district. In Tinsukia district alone, names of 626 villages are not available in the 1951 NRC while in Nalbari, Barpeta, Lakhimpur districts more than 200 Villages names are not available. Government figures also mention that in Nalbari, the 1951 NRC of 481 Villages is partially damaged while NRC is totally damaged in 523 villages in Lakhimpur district.
The NRC was meant to be updated regularly, but it never was. The idea of updating the NRC in Assam stems from the demand to identify illegal migrants who infiltrated into the State from the erstwhile East Pakistan/Bangladesh as per the 1951 NRC. The All Assam Students Union (AASU) and All Assam Gana Sangram Parishad (AAGSP) had spearheaded the six-year-long (1977-85) historic Assam Movement in support of the above demand. The movement, which witnessed serious violence, bloodshed, and mass-killings in places like Nellie during 1983, ended with the signing of the "Assam Accord" in 1985 between the Centre, the State, and the AASU, in the presence of the then Prime Minister Rajiv Gandhi. The Accord contained a provision that all 'foreigners' who came to Assam after March 25, 1971 should be detected and deported under the Illegal Migration Determination (by Tribunals) Act,1983(IMDT).
Those who are of the opinion that the NRC is not linked to the Accord may not know the February 2, 1980 meeting between then Prime Minister Indira Gandhi and AASU leaders. This was the beginning of talks on the Assam problem. The student body's only demand was expulsion of foreigners as per the 1951 NRC. The 75 minute meeting couldn't reach a solution only because the Gandhi regime wanted the AASU team, led by its president Prafulla Kumar Mahanta, to accept March 25, 1971 as the cut-off date to verify foreigners and not the 1951 NRC.
The AASU and AAGSP finally had to relent to 1971 as the cut-off year in the Rajiv Gandhi regime for various reasons– the Nehru-Liaquat pact and the Indira-Mujib pact. Though 1971 became the citizenship cut-off year for Assam, many also overlook the fact that the base date and year for citizenship in Assam is January 1, 1966. The reason is, those who entered the state between January 1 1966 and March 24, 1971, would not be expelled from the state and that their names would only be taken off the electoral rolls for a period of ten years and thereafter they would regain their citizenship.
The final round of talks between the Prime Minister and the student leaders were held on the night of 14 August 1985. In an atmosphere of happy and joy, faith and belief, an agreement was signed on 15 August, 1985 between the Government of India, the Government of Assam and the AASU-AAGSP representatives. This is known as Historic Assam Accord, 1985. After this agreement, Mr. Rajiv Gandhi, the Prime Minister of India very proudly declared from the ramparts of Red Fort, Delhi as follows:-
"We have just reached an agreement, signed just five hours earlier at 2.45 a.m. with the Assam students.......The six year old Assam problem has been settled following an Accord arrived at between the Assam students and the Government. This will eliminate tension from the body-politics of the country and help accelerate its growth. Ten months ago there was a distinct threat to the unity and integrity of the Country. The Government on assuming power had made Punjab and Assam Problems, its numbers one priority. Now with the singing of the Accord and lessening of tensions, nobody can countenance even the existence of a threat."
Para two of the Statement of Objects and Reasons of the Citizenship Amendment Act, 1985 says that Assam Accord being a political settlement, legislation is required to give effect to the relevant clauses of the Assam Accord relating to the foreigners issue. Now the question is how can a political settlement /the Assam Accord between a students' organization and the Home Ministry be a legal document? After Assam Accord, the Citizenship Act, 1955 was amended to include Section 6A with effect from 07/12/1985 which introduced- "Special Provisions as to citizenship of persons covered by the Assam Accord". To implement the various Clauses of Assam Accord a new Department has been established by the Government of Assam in the name of "Implementation of Assam Accord Department" during the year 1986. Section 6A created a threefold system to separate illegal immigrants from original residents and legal migrants:
- All residents of Assam who entered the state until 1 January 1966 would be regularized;
- Those who came between 1966 and 25 March 1971 would be disenfranchised for ten years, then deemed to be citizens;
- Foreigners who came to Assam on or after 25 March 1971 would continue to be detected and deported.
Updation of NRC of 1951 has been a long standing demand but not reflected in the above-mentioned Assam Accord. However, in view of the mounting pressure by various parties and organizations on the revision of electoral rolls, a formal decision to update the NRC in the state of Assam was first taken by the Centre in 1999, but the work did not begin. Later, in a tripartite meeting between the central government, the Assam government, and the AASU on May 5, 2005, it was decided to update the NRC. Based on recommendations of the Group of Ministers in 2008, The Citizenship (Registration of Citizen & Issue of National Identity Cards) Rules, 2003 was amended in 2009 to put necessary legislative framework in place for updation of NRC by inserting Rule 4A and procedures after Rule 18 i.e. appended Schedule. The NRC preparation in Assam is to be carried out by taking into account the names of persons included in NRC 1951 or in any of the Electoral Rolls up to the midnight of 24th March, 1971 or in any one of the other admissible documents issued up to mid-night of 24th March, 1971, which would prove their presence in Assam or in any part of India on or before 24th March, 1971. All the names appearing in the NRC, 1951, or any of the Electoral Rolls up to the midnight of 24th March, 1971 together are called Legacy Data. Thus, there will be two requirements for inclusion in updated NRC–(1) existence of a person's name in the pre-1971 period & (2) proving linkage with that person. For getting their names included in the updated NRC, citizens shall have to submit Applications Forms (family-wise).
However, nothing much progressed beyond talks. In July 2009, Assam Public Works—an NGO—filed a case in the Supreme Court demanding updation of the NRC, vide W.P(C) No.274 of 2009. In 2010, the government decided to hold pilot projects of NRC updating in two revenue circles in the State, namely Chaygaon (Kamrup District) and Barpeta (Barpeta District) revenue circles. But violence in Barpeta district stalled work. It was only after the Supreme Court's direction dated 17th December, 2014 to the government to update the NRC that work on updating the list began in full swing in the State of Assam.
The statues governing NRC updation in Assam that are :
- The Citizenship Act, 1955
- The Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003 (As amended by 1. G. S. R. 803(E), dated 9th November, 2009 (with effect from 9/11/2009.)
- Ministry of Home Affairs (Office of Registrar General, India), Order No. S.O. 596(E), dated 15th March, 2010, published in the Gazette of India, Extra, Part II. No. 504 S.3 (ii), dated 16th March, 2010 p.1.)
Finally, under the supervision of Supreme Court of India the NRC updation process has started in Assam in the month of February, 2015. The process of NRC Update is divided into the following phases:
(i) Publication of Legacy Data,(ii) Distribution & Receipt of Application Form, (iii)Verification Process (iv)Publication of Part Draft NRC (v) Publication of Complete Draft NRC(vi)Receipt and disposal of Claims and Objection(vii) Publication of Additional Draft Exclusion List (vii) Publication of Final NRC .
The Referral Order
It is in this context that the challenge to Section 6A of the Citizenship Act, 1955 came before the Supreme Court vide referral order dated 17th December, 2014 by Hon`ble Justice Nariman which framed thirteen questions of law and passed an order under Article 145(3) of the Constitution, referring the matter to a larger Constitutional Bench of the Supreme Court. But surprisingly, after elapsing of about five years the issues regarding said thirteen questions are not resolved till today. On the other hand, the Supreme Court agreed to extend the deadline for finalization of the NRC to August 31 as requested by Prateek Hajela, State Coordinator for NRC, in view of the recent flood situation of Assam which had affected the data updates. The court passed the following order on 23rd July, 2019:-
"Having regard to the grounds on which the learned coordinator, in his report dated 10.7.2019, has sought for extension of time up to 31.8.2019 for publishing the final NRC, extension prayed for should be allowed. We accordingly grant the aforesaid extension of time, namely upto 31.8.2019."
It is clear that NRC 1951 is not admissible in evidence as per section 15 of the Census Act, 1948 as well as two verdicts of Gauhati High Court. But the Government of Assam was uploaded the Legacy data with image of NRC 1951 in the website for public search/inspection in the month of February, 2015.So,it is gross violation of Section 15 of the Census Act,1948. Moreover, the NRC 1951 is an incomplete document in the State of Assam. NRC 1951 updation process is carried out in the state of Assam in accordance with Section 6A of the Citizenship Act, 1955 as amended up-to-date along with other allied rules. But the NRC monitoring bench of the Supreme Court framed thirteen questions of law including constitutional validity of Section 6A of the Citizenship Act and passed an order under Article 145(3) of the Constitution, referring the matter to a larger Constitutional Bench of the Supreme Court and the question of constitutional validity of Section 6A of the Citizenship Act, 1955 are sub judice till date.
So, if the Constitution bench as discussed above declares Section 6A unconstitutional, then the entire exercise of NRC may become redundant. Since the petitioners of the said case are asking for a uniform Cutoff date for the entire country, it could mean that many people already included in the NRC would no longer be eligible. But as per direction of the Supreme Court, the final NRC is scheduled on 31st August, 2019.
On the other hand, those left out from NRC Final list will have a series of options for appeal, which is a long haul. The various points of appeal imply that the process of establishing citizenship or illegal stay in Assam could take years, if not decades. First, there are the quasi-judicial Foreigners Tribunals, which those left out of the final NRC will approach by filing Appeal Memo. If their Appeal is rejected again, they have the option of approaching the High Court and the Supreme Court. In case, the concerned person does not prefer an appeal within the period of sixty days before the Foreigners Tribunal in Assam, then the Central Government or the State Government or the District Collector or the District Magistrate may refer to the Foreigners Tribunal for its opinion the question whether the said person is a foreigner or not within the meaning of Foreigners Act, 1946.But the time limit for such reference by the Government to Tribunal is not been provided in Foreigners (Tribunal) Order,1964 as amended up-to-date . Only after that there is the prospect of being sent to one of the six existing detention camps in the state of Assam, or one of the 10 being planned.
The Supreme Court recentlyallowed conditional release of those who have completed three years in detention, against a bond. So for lakhs of people, what the future holds is uncertain as ever. Only a long Court/Tribunal battle is certain, while a stateless identity with curtailed rights is a possibility. Deportation, if it ever happens, appears a long way away. Hence, the doubts over accuracy of 1951 NRC and its updation process is moving around in intellectual people`s mind in the state of Assam. The Indo-Bangla border is of 4096 km in length and the Assam portion of the border with Bangladesh is 267 Kms. Out of which 44 Kms. is river side. It is a fact that a huge portion of Assam-Bangladesh border is unfenced and not properly manned - unlike western border of India, and hence porous even after 70 year of independence. In my opinion, fencing and manning of the entire portion of Assam-Bangladesh border is more important than updation of NRC involving a cost of about more than 2000 crores.
---------------------------------(The author is a practicing Lawyer in various courts of Assam. He can be contacted at firstname.lastname@example.org. Views are personal)