THE EFFICACY OF NRC AND THE ROLE OF FOREIGNER'S TRIBUNAL
Updated: Feb 1
‘If Assam’s population increased at the same rate as the rest of India from 1901 to 1971 (130%), her population would now be 7.6 million rather than 15 million, a difference of 7.4 million’ (Weiner, 1978).
Illegal immigration from Bangladesh has been a consistent cause of social and political upheaval in the state of Assam. The National Register of Citizens (NRC) is a result of this very cause. The NRC is a register maintained by the Government of India containing the names of all legal Indian citizens. It materialised in 1951, to detect and deport illegal immigrants residing in India. Assam was the only state that was asked to maintain this registry due to the unabated immigration from East Pakistan (now Bangladesh).
The issue of illegal immigration in Assam can be traced back to the pre-colonial period, but it gathered pace post the liberation of Bangladesh in 1971. The religious and linguistic patterns of Assam went through a marked change because of it. The Muslim population grew steadily from 24% in 1971 to 31% in 1991 to 34% in 2011 (Khanal, 2018). This led to a decisive shift in the cultural identity of Assam, resulting in increasing fears among indigenous people towards the preservation of their Assamese culture. This issue was given a communal angle to suit the vested interests of political parties, who were conspicuously using immigrants as a part of their vote bank. The Election Commission of India ordered a revision of the electoral rolls during the Assembly elections of 1983 and concluded that 35 lakh voters could not be traced directly or by parentage to the electoral rolls of 1971 (Agarwala, 2018).
To expedite the process of creating an NRC, Foreigners’ Tribunals (FT) were created under the Foreigners (Tribunals) Order of 1964, which brought section 3 of the 1946 Foreigners Act into action. These tribunals are quasi-judicial bodies that hold responsibility for determining if a person is residing in the state as an illegal immigrant. The fate of the 1.9 million people who have been left out of the National Register of citizens published on 31 August 2019, lies in the hands of these tribunals. My central argument is to highlight the extraordinary powers that have been vested in these Tribunals while debating the question of citizenship. Another concern that I would take forward in this article is the effectiveness of the process of NRC and its outcome.
NRC as a bureaucratic paper monster
When the NRC was started as an exercise in 2013, it was projected to cost INR 500 crore. But it cost INR 1,220.93 crore over the next five years. It meant the government spent an approximate INR 6,400 per illegal migrant to identify them (Firstpost, 2019). And if 20% of the samples are going to be re-verified as demanded by BJP, AASU and other organisations, the cost will again go up along with the engagement of human resource and time, hinting at the cumbersome process to follow for another decade.
The final draft of the National Register of Citizens was uploaded on the 31st of August 2019, under the direct supervision of the Supreme Court. Contrary to expectations, it led to huge protests all over the state of Assam, including by civil bodies and NGOs that wanted the process to happen. The final list excluded the names of over 19 lakh people, including about 5.56 lakh Hindus and 11 lakh Muslims. The NRC State Coordinator Prateek Hajela termed it as the ‘final list’ (Manocha, 2019). Meanwhile, the Assam Public Works (APW) department accused the NRC coordinator for tampering with the NRC process (Sentinel, 2020).
The Assam government has appealed to the Supreme Court for the re-verification of up to 20% of the names included in the border areas and 10% of the names included elsewhere. Meanwhile, the Registrar General of India, a central authority guiding the NRC process, has not yet declared the list as final and binding as per clause 7 of Citizenship Rules, 2003. There have been a lot of debates since the publication of the list and none have come to any fruition.
More than 50,000 government officials have been invested in the NRC process; another 7000 employees have been outsourced to manage the database. Massive numbers of NRC Seva Kendras (NSK) have been set up across the state to deal with the data collection dilemma and to assist citizens with any issues that arise. The whole process took 10 years for its completion and an investment of 1220 crore rupees (Firstpost, 2019). This had a massive toll on the state and central machinery but the end product was nothing but a failure. This happened along the same lines as a pilot project which took place in 2009 and had failed miserably due to massive law and order problems (Assam Times, 2010).
The burden of documentary proof has been very high on the Assamese, because the local registrars tend to look at every document with suspicion. They intend to re-verify every document and the details furnished therein. There is also crippling angst among the Bengali–Muslims, whose documents are always looked at in a cynical manner. The local registrars end up canceling old documents that have a minute spelling mistake. In such a situation, how can we expect the marginalised sections of the society especially the poor, illiterate, women, and tribes to possess completely accurate documents that can prove their citizenship?
Once approved, the NRC will divide and devour India in ways that cannot be overlooked. It will trigger misery in a peculiarly bureaucratic form: by constructing a suffocating paper-based reality of who an Indian is; a 'kaghazi duniya' that we will struggle to be part of and find difficult to leave, whether or not our names make their way into the register.
Are the Foreigners Tribunals overtly arbitrary in their functioning?
‘The FT’S must ensure legitimate citizenship claims are not rejected due to a broken system steeped in discrimination. They must be encouraged to include and not designed to exclude’ (Amnesty International, 2019).
The case ‘Sarbananda Sonowal vs Union of India’ of 2005 was detrimental to the formation of the foreigners’ Tribunal in Assam. Its judgment led to the removal of the Illegal Migrants (Determination by Tribunal) (IMDT) Act. This act was passed two years after the signing of the Assam Accord, which called for the immediate expulsion of illegal foreigners from the state of Assam. The IMDT Act was enacted to deal with the problem of deportation of foreigners and the cutoff date for the same was set as 25th march, 1971 as per Section 6(A) of the Citizenship Act. Contrary to the norms of the constitution, this act required the state authorities to prove that a person detected was a foreigner. The arbitrary nature of this order led to discrimination against the people and was finally repealed in 2005.
The Foreigners’ Tribunals were established with jurisdiction over possible illegal immigration suspects during the updation of the NRC. The FTs were meant to uphold the sanctity of the judiciary and work impartially towards the disposition of justice. These tribunals adjudicate over cases of doubtful citizens brought to them by the Border Police, National Register of Citizens, and the Election Commission of India.
They hold power equal to that of a civil court, functioning under the Code of Civil Procedure, 1908. They have the power to summon a person, seek any document for approval and examine a witness by issuing commissions besides having the power of deportation. The recruitment process to these Tribunals is marred with shortcomings of the highest order. There is no clarity on the basis of their training and their tenure is based on their performance. According to a Tribunal member “The atmosphere has become such that there is a competition to be, what members joke among themselves, the highest wicket-taker – the one who can declare the maximum number of people foreigners” (Scroll.in, 2019).
The tenures of tribunal members are subject to the whims of higher political authorities, who possess the power to terminate or expand them. This results in the vested political ends being prioritized over the true dispensation of justice. The home and political department’s records, accessed by Scroll, show that the government assessed the members’ performance on two parameters: ‘total cases disposed’ and ‘percentage of foreigners declared.’ Presently, 100 Foreigners Tribunals are functioning over 33 districts in Assam. The number of such Tribunals has increased over time due to the high pendency of cases. The state government recently stated that there are over 83,000 pending cases of doubtful or D-voters in the state.
The 19 lakh odd people that face a possible move to detention centers at the least and deportation at the worst, have their faith hanging in the balance. They have to rely on the judgment of a tribunal that is bereft of any moral consideration. These people have genuine concerns and legitimate rights to call the Indian motherland their home. Their legitimacy stems from their ancestral history, which in any case was not well interpreted by the NRC. The absence of an archaic document should not determine their status. In that regard, when a judicial body plays to the tunes of the executive, it is no longer upholding the question of justice. In fact, its means are as insidious as its end.
Therefore, I believe that the procedural legitimacy of the Foreigners Tribunals is worthy of doubt. Formed by executive order rather than by legislation and riddled with loopholes in procedures relating to its appointments, preparation and adjudication, these tribunals represent a violation of the integrity of the judiciary and of the rule of law. As a pre-constitutional law, even its validity is brought into question under Article 13(1) of the Indian constitution.
The process of NRC has raised the question of social justice. There have been underlying prejudices in the functioning of the Foreigners’ Tribunals. People appearing before the court are not afforded the free trial protections and human rights guarantees that flow from Article 21 of the constitution. Samina Bibi, for example, was denied citizenship because she could not recall her grandfather’s constituency, whereas Abu Bakkar Siddique was declared a foreigner because of a single alphabetical error in his grandfather’s name, to cite a few examples (Amnesty International, 2019).
The NRC has failed to address the issue of immigration. It has failed to fulfill the promises made during the Assam Accord in 1985. It has failed to deliver justice to the marginalised sections of society, who waited in anticipation as the question of their statelessness loomed large throughout the years since its inception. What it has successfully managed to do is instill fear amongst members of certain communities, amongst people who have no documents to prove their heritage. The state needs to factor in various stakeholders that are non-partisan in their nature and caters to the constitution. The factors of accountability and transparency need to be revamped, especially concerned with the working of the Foreigners tribunals. Their tenure, appointment, and functioning should be independent of the influence of any narrow or fragmented political aspirations. In simple parlance, the fault lines lie within the means towards the attainment of an end, which is further complicated by its process of implementation.
Cover Image: Neelav Chakravarty
About the author: Sibasish Borah is a Student of Masters in Public Policy at the Jindal School of Government and Public Policy.