Binayak Dutta

Politics in Assam has for long been dominated by contestations over belongingness and citizenship. Seventy years since the transfer of power and well into the twenty first century, the tenor and the dominant theme of politics is no different when C.S. Mullan, the Census superintendent for Assam for the Census of 1931 raised an alarm over the “army corps of the invaders” (Census:1931:49) invading Assam from East Bengal. The raging debate that was ignited in the last century has continued unabated in north-east India ever since with mile-stones such as the Assam Movement and now the construction of the National register of Citizens for Assam along the way. A debate that was initiated in the official and administrative domains has today entered the common place and the current exercise over the NRC with more and more people affected by the process in diverse ways. If I could start with the personal in exfoliating the political, I can only remember the tag line of a famous multinational beverage chain store – ‘a lot can happen over a cup of coffee’. A visit to a regular café and a chance encounter with an old eminent acquaintance a few days back set me thinking about the most significant story in contemporary history of north-east India- the National Register of Citizens or ‘NRC’ in short. What emerged out of that chance encounter, for me, were four definite realizations. Firstly, it dawned on me that many people belonging to the middle class and upper middle class in the Brahmaputra valley perceived the ‘NRC’ as a definite positive closure to the uncertainty on the citizenship question in Assam, to their satisfaction; secondly, they were extremely appreciative about the proposal and process of the construction of this national register: thirdly, most people, even the most learned ones, did not have much idea about the historicity of the ‘document’ referred to as ‘NRC’ and its current legal basis and finally, NRC had reopened the old chasm between the Brahmaputra and Barak Valleys as people were oblivious to or even unconcerned about the anxiety and trauma  faced by the common people in the Barak valley in the wake of the NRC exercise . In popular perception of many Assamese elite, the NRC was a document that was inextricably linked to the goal of sanitizing of Assam from the scourge of ‘foreigners’ and the construction of an ideal national space and a fulfillment of the “mandate of the Assam Accord.” [1](Dutta: Feb, 2018 EPW)  It is pertinent to remember that the process of construction of this document, extremely critical to the ‘national’ life of Assam did not find any mention in the famous Assam Accord signed in 1985. In fact it was a process that began only in 2005 and came to be implemented in 2015, after the division bench of the Hon’ble Supreme Court passed an order in favour of updating the NRC, 1951 in December 2014.

The Flowing of the Tide

Today, it is only a matter of days when the final draft of the National Register of Citizens for Assam is scheduled to be released. When the first draft of the NRC for Assam was published on the 31st of December, 2017 it generated overwhelming emotions both among the government officials and the people at large. While the government officers were initially apprehensive about the outbreak of large-scale violence in Assam on the publication of NRC, the people were apprehensive of their names being left out of this vital document. When the Supreme Court monitored the birth of the first draft of the NRC on the 31st of December, 2017, only 1.90 crore people found their names in the list, with 1.39 crore waiting for the second list to know their fate. Between 2012 and 2018, the citizenship question in Assam has witnessed unprecedented churning. On the 5th of December 2013 the Registrar General of Citizen Registration issued a notification to update the national register of citizens 1951 in the state of Assam.[2] Significantly, this was the first such attempt to update the document which first found mention in the Census of 1951. The first census operation in post-independent India that followed the Constitution engaged with peopling in post colonial Assam along with the rest of the country as it was a major step in preparing a data base for citizenship and a voters list in the nascent state in the run-up to the first general elections in independent India. The idea of the citizens conceived as stakeholders in the new state therefore assumed immediate importance. The process of census and the preparation for the document in Assam was extremely difficult and complex. The NRC or the National Register of Citizens was an important but a casual product of the census operation of 1951. It is important to appreciate that the NRC, 1951 is a document that emerged at a very critical period of history. On the one hand was the challenge of the cartographic reorganization of the new province of composite Assam in post-colonial India; on the other hand was the creation of the new states of India and Pakistan. For the purpose of a peopling project in Assam, the concern of the Indian state was only with east Pakistan which came to be carved out of colonial Bengal and the colonial state of Assam through a political and cartographic exercise called partition. Thus, while both India and Pakistan went about their own politics of peopling as new nation-states, as a new border province, Assam had her own share of experiences and anxieties between 1947 and 1951. The Census of 1951, set in motion according to the Census Act, 1948, acknowledged that both the processes of nation and province building in India and the nation making in Pakistan were interlinked. On the Pakistan situation, the Census report recorded that,

“…mass migration of Hindus from East Bengal and Muslims from West Bengal occurred in the eastern frontiers of the two new states, both before and after their independence. While, the Government and the people of  the Brahmaputra valley thought that Assam escaped at that time these degrading and inhuman occurrences, but it could not do so for all time. The riots and communal massacres and the influx of refugees from certain parts of east Bengal to Assam did not fail to have their own inevitable repercussions.”[3]

Despite such difficult and critical a time, when the process of Census was undertaken both in India and in Assam, the NRC which was a product of the process, was surprisingly a casual affair as it was prepared without any planning, training or any organization. This register of 1951 when it was prepared was a secret administrative document prepared by the Census enumerators, who were “unqualified or ill-qualified persons”[4] on the basis of the Census slips and which had many shortcomings. Moreover, it was not open to inspection. As admitted by the then Census Superintendent then, the names of the displaced were consciously not included in the Register. While the Census Report of 1951 admits that “[a]n important innovation of this Census was the preparation of a National Register of Citizens in which all important census data was transcribed from the census slips with the exception of the Census questions No.6 (displaced persons), No.8 (bilingualism) and No.13 (indigenous persons),”[5] it also details many shortcomings of this document which today has become proverbial to the construction of the ‘indigenous’ and the ‘foreigner’ in Assam. Though most of these shortcomings are today being overlooked by those supporting the NRC, they are vital to understand the unreliability of the document in the construction of citizenship in Assam.

While the process of enumeration was a hurried one – having been completed in only twenty days between 9th February and 28th February, 1951,[6] the enumerators were grossly untrained. In course of time, even the process of tallying the slips which formed the basis for the NRC and NRC itself was abandoned at the orders of the Registrar General of Census. As is evident from the Census Report, there were many moments of irregularities as the data entered into the NRC were copied into census slips contrary to the established procedure of the slips becoming the basis for the NRC. Over time, the courts which came to be seized of the citizenship question also did not accept the NRC as a document that could be a basis for citizenship claims. The Guwahati High Court as early as 1970 held that the NRC, 1951 was an inadmissible evidence according to the Evidence Act.[7] In this context it is important to refer to the judgement of  (J) P.K. Goswami, of the Gauhati High Court on the NRC, reported in A.L.R. 1970 A&N 206 that,

“ …it only shows that the National Register of Citizens is a contemporaneous register prepared by the officers appointed under the provisions of the Census Act in the course of Census operations. If so Section 15 of the Census Act will make such records of Census not open to inspection nor admissible in evidence… what is directly prohibited under Section 15 of the Census Act cannot be let in by an indirect method through the agency of a private organization…” (at pp. 208-209).

It is pertinent to mention here that though the Census 1951 evolved the document called NRC, by its own admission, the document was an irregular affair which had never been updated or regularly maintained, as was originally proposed, in the district offices. This was candidly admitted by the Government of Assam in a reply to a question in the Assam Legislative Assembly in 2015.

Located in this context, the project and process of ‘updating’ the National Register of Citizens is extremely problematic. In is important to examine the history of how this project of ‘updating’ the National Register of Citizens (hereinafter referred to as NRC) in Assam came to find a place in the political imagination in the province. It would not be incorrect to point out that the Assam Accord  signed in 1985, which marked the culmination of a six-years long anti-foreigner/ anti Bengali agitation in the Brahmaputra valley of Assam conspicuously silent about the ‘updating’ of the NRC, though it did provide that 24th March, 1971 would be the cut-off year for ‘regularization’ of foreigners in Assam. This led to the insertion of a new provision in the  Citizenship Act, 1955, viz Section 6A which delineated special provisions as to citizenship of persons covered by the Assam Accord. While most of the other clauses of the Accord have been implemented, only those provisions related to illegal immigration of ‘foreigners’ still remained wanting.  In view of this shortcoming, the three parties to the Assam Accord, viz, the All Assam Students Union, the Government of Assam and the Government of India came back to the table to review the implementation of the Assam Accord.  The Hindu reported in its 8th May, 2005 edition that,

“Prime Minister Manmohan Singh agreed to the AASU demands for implementation of the Accord within a timeframe; effective measures to seal the Indo-Bangladesh border in a year’s time; updating the National Register of Citizens with March, 2, 1971 as the cut-off date within two years time and issuance of photo identity cards after updating the NRC.”

NRC in Our Times

The issue of the ‘updating’ the NRC therefore officially came to be acknowledged only with the Agreement of 2005 and not earlier as many would want to believe. It is interesting to note that neither the Assam Accord nor subsequent agreements clearly defined the term ‘foreigner’ though the primary focus of the Anti-Foreigner Agitations was focused on identification and deportation of the same. But all these accords and agreements notwithstanding, the issue continued to drag on till in 2008, the Government of Assam took up the matter of the construction of national Register of Indian Citizens in August, that year.

The anti-foreigner sentiments had never really subsided from the political firmament in Assam though the focuses of such sentiments were the migrants from East Pakistan and Nepal. With the birth of Bangladesh, the broad term for Bengali speaking suspects was ‘Bangladeshi’. Popular concerns on the foreigners issue also expanded across Governmental forums including the Legislature, Executive and the Judiciary. Judicial pronouncements now were candid in reflecting popular anxiety. By 2004-2005, as political debates reignited over the foreigners issue, the Judiciary also began to express “serious concern”[8] over the issue.  One such judgement of the Gauhati High Court, which came to deal with it observed,

“It is no longer a secret or in the domain of ‘doubt’ that illegal Bangladeshis have intruded every nook and corner of Assam, including forest land. In some of the cases, the petitioners themselves stated before the police during investigation that they were occupying and living in Govt. and forest land. If reports are to be believed, they have intruded upon the most sacred Xattra lands. Very often, they are protected by extending the protective lands of ‘secularism’ branding them to be Indian minorities in Assam. A strong political will to free Assam from illegal Bangladeshi is the need of the hour coupled with public activism in that direction” (2008(3) GLT 272).

Since 2005, the judiciary in Assam has become an aggressive arm of the state machinery in its quest of determination and construction of citizenry in Assam. By 2008, judicial anxiety on citizenship was out in the open as one of the judgment even went to the extent of pointing out that, “… large number of Bangladeshis present in the state of Assam… have become the kingmakers.”[9] The institutions of the government were perhaps, not immune to and insulated from the popular outpourings of society in which they were located. The ghost of partition, Pakistan and Bangladesh came back to haunt the society, especially its politically sensitive elite who had felt that the foreigners issue had never really been buried for good despite the Accord of 1985. The Gauhati High Court judgement in WP (C) No.5696 of 2002 dated 25.7.2008 was only one of the major judgments on the issue of illegal immigration from Bangladesh into Assam. This was surely not the only one as many more followed. It was evident that in both political and popular perceptions, a broad consensus was emerging on the construction of a national register of citizens which would be the touchstone for citizenship claims with both the political and legal authorities. When the Government of India came out with The Citizenship (registration of Citizens and Issue of national Identity Cards) Rules, 2003 in their effort to prepare the National Population Register, it was perhaps only in time with the broad political atmosphere in Assam. The proposal under the rules was to make a National Register of Indian Citizens (NRIC) (Order appended to clause 2 of the Rules, 2003). A plain reading of the rules would inform us that the intention of the Government of India in 2003 was not to have an NRC as is understood today in Assam but to prepare an NRIC as is evidenced in Clause 3. However as the foreigners issue again witnessed an upsurge in 2005 and the political situation became critical, the government of Assam and the government of India again sat in consultation with the All Assam Students Union (ASSU) which resulted in a tripartite agreement which brought provided for the updating of the national register of citizens in Assam for the first time as a possible solution of the popularly sensitive foreigners issue as proposed by the AASU. The political leadership took shelter behind popular logic, with the Chief Minister pointing out in a letter to the Prime Minister that “updating of the national Register of Citizens 1951 is looked upon as the solution to the vexed foreigners issue in the State and there seems to be a consensus among cross section of people with regard to the updating of National Register of Citizens”[10]

With growing institutional support to popular vigilantism and the abdication of state institutions to discharge their designated roles, Assam was in the throes of another conflagration by 2012 as nothing much had taken place to resolve the issue either at the politico-administrative level or the political level. The match stick to the powder-keg came in the BTAD areas in 2012 which witnessed a conflict between Bodo inhabitants and Bengali-Muslim settlers who were pilloried as ‘Bangladeshis’. It is at this time of conflict and tension, that the project to prepare the National Register of Citizens received a fillip. The process of upgradation of the NRC was also not without its share of contests and controversies with civil society organizations like Assam Sanmilita Mahasangha, Indiginous Tribal Forum and NDFB (Progressive) and political parties like BJP and AIUDF crossing paths on the issue[11] ( Telegraph: 16th September,2012). It is in this situation a Writ petition was filed at the Supreme Court by Assam Public Works, praying to “delete the illegal voters from the voters list of Assam and in that process seeks an updation of the National Register of Citizens, 1951. (para 18, S.C. Judgement dt. 17.12.14). By the time the Supreme Court of India begun hearing of a writ petition on the issue since August 2013, the modalities for the NRC had not been finalized and neither was any fundamental legal framework identified for the process except the order from the Registrar General of Citizens Registration for the same by 5th December, 2013 (Gazette Notification dated 6th December,2013). However the matter acquired seriousness as the Supreme Court, like the Government of India also went about supporting the exercise and in its Judgement on 17th December 2014 and directed that the upgraded National Register of Citizens (NRC) for Assam be published by the end of January 2016 on the basis of a prescribed time schedule.

It is interesting to note that the judgement of 2014 was in response to the petitions which called for linking the current exercise of NRC with the NRC of 1951 which since 2005 was a part of the political discourse generated by the Tripartite Agreement and not the Assam Accord of 1985, as many were to believe. While few would question the justification of the expulsion of foreigners from Assam, it’s a mystery why the same yardstick could not be applied to the rest of India and the other provinces as well. That apart, it is also important to note that the fundamental legal bases of the two Registers are distinct and separate. While the NRC, 1951 was completed under the Census Act of 1948 which makes the register a contemporaneous document prepared by field staff engaged in course of census operation and was legally “not open to inspection nor admissible in evidence” (ALR 1970 (A&N) 206 para15), admittedly the current NRC is being prepared under the Citizenship Act 1955 read with the Citizenship Rules, 2003. To the best of our knowledge, the Courts and the various orders and judgement have not as yet constructed any legal framework to reconcile the two Acts which have distinct origin and purposes. Neither has any legal framework been evolved to legitimize the use of the NRC, 1951 as evidence in matters governed by the Citizenship Act by any amendment or an enabling clause. The matter is more complicated now as we know that the district offices have not maintained the NRC-1951 data for all the districts as was mandated in the Census of 1951 and the matter is today admitted by the government of Assam as well. While the government was forced to rely on other documents produced by the people, from those districts where the NRC 1951 was absent or fragmentary, to enlist their names in the NRC 2018, it therefore raises serious questions on the legality or legitimacy of ‘updating’ NRC-1951 in the province of Assam as a whole. It is also important to mention that the province of Assam in 2018 is surely not the same as it was understood in 1951. The new states that were formed on the debris of composite Assam since 1963 had surely not taken adequate care to maintain the NRC 1951 records which have since been destroyed. Thus despite repeated reminders from the authorities in Assam, they have not been very forthcoming.

In lieu of a Conclusion

While the schedule for the publication of the NRC has lapsed many times, the NRC including the draft register is, in reality, far away from its completion and final publication to the satisfaction of the people of Assam even if the process of completing the formalities for the enrolment of names in the National Register of Citizens is completed according to the Supreme Court Schedule of 30th June, 2018[12] (Supreme Court Order: 20/2/2018). With every delay the harassment of the people and their opposition to the process is far from subsiding and we are probably on the throes of another prolonged round of litigations over NRC by those who would find themselves adversely affected by the publication of the national register, 2018.

As of today, the NRC is a mixed bag of boon and curses as many families have lost their members to anxiety and suicide in many parts of Assam. NRC in Assam has been the harbinger of tension, trauma and anxiety. The Central Government attitude has only contributed to increase of antagonism and anxiety over citizenship in this region. The latest declaration of the government of India to grant citizenship to Hindu refugees and members of other minority community from Pakistan[13] and Bangladesh[14] who have come to India due to religious persecution has only contributed to more confusion as it has created mixed feelings. While this decision has antagonized the Muslim community in Assam, the life of the Hindus who are already residing in Assam over decades and who have faced the threat of eviction and the stigma of being doubtful citizens has not become any better. In fact most Bengali speaking people residing in Assam have come under the cloud of suspicion. This has also contributed to the revival of tension between the Brahmaputra and Barak valleys as the Bill faced protests in the Assamese dominated Brahmaputra valley while being welcomed in Bengali dominated Barak Valley (Indian Express, 20th May, 2018). Though the Central Government through a union Home Ministry Notification issued on September 2015 exempted the Bangladeshi and Pakistani nationals belonging to the minority community entering India on or before 31st December 2014 without proper relevant documents from being declared as illegal entrants or foreigners, and exempted them from the Passport (Entry into India) Act 1920 and the Foreigners Act of 1946, reports from the field indicate that “this failed to curb the harassment of Bengali speaking people by the police as more and more people are being loaded in detention camps. ‘People are being harassed in the name of detection and identification of foreigners.”[15]

Citizenship continues to be a live situation of contested living in the age of globalization, grappling hard with the ideology of nationalism. It is probably in this context that the National Register of Indian Citizens has the possibility of collapsing into becoming the National Register of Assam, which in the current constitutional arrangement in India seems legally quite untenable, considering the fact that India does not have provisions for dual citizenship.

It is pertinent to mention here that the Asom Jatiya Mahasabha of Ambikagiri Roychoudhury had raised the demand for dual citizenship for Assam[16] along with the threat of ‘independence of Assam’(Misra:2013:123). In Assam, the politics over citizenship is extremely ethnicized as an eminent academic Anupama Roy observed in one of her pieces, “[T]he register being prepared in Assam is indeed of Indian citizens. But the pedigree of Indian citizenship is traced to an Assamese legacy, which makes the NRC a register of Assamese-Indian citizens or Indian citizens who are legitimate residents of Assam. The identification of Indian citizens simultaneously as Assamese recognizes a hyphenated citizenship, hitherto alien to the political vocabulary of citizenship in India.”[17]  It is interesting to ponder whether the NRC-2018 in Assam is only an indication of bigger structural changes in the Indian Constitutional structure. That is something which is in the domain of the future. But in India as well as in many other parts of South and Southeast Asia, extreme assertions of nationalism are perhaps seen as the few ways by the people to strike at the tide of globalization of which migration of people across countries and markets are natural corollaries. While it is pertinent to point out that neither the Bengali Hindu Middle class nor the ‘stout fanatical Muhammadan’[18] came from eastern Bengal to Assam as a matter of choice or pleasure and were mostly goaded by the colonial officials to migrate to Assam, in the colonial period, (Dutta: 2014) in the post colonial period migration from across Bangladesh is probably attributed to threats to life and livelihood. The challenge today in this tussle is to historicize the process of citizenship and nation-making beyond the tide of either politics or passion. This is something that we are yet to come to terms with till recent times.

– Binayak Dutta is an Assistant Professor in the Department of History at North-Eastern Hill University (NEHU), Shillong. He can be reached at – binayakdutta18@gmail.com

(Feature Image Courtesy – http://www.newstimesassam.net)

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Notes and References:

[1] Akhil Ranjan Dutta, Political Destiny of Immigrants: National Register of Citizens, EPW, Feb, 24, 2018.

[2] Vide Subrule 3 of Rule 4 A of the Citizenship Registration of Citizens and Issue of National Identity cards Rules 2003, to be completed in three years.

[3] Census of India 1951, Vol III, Assam Part I-A,p. xxxiii.

[4] Census of India 1951, Vol III, Assam Part I-A,p365.

[5] Census of India 1951, Vol III, Assam Part I-A, p.xxxiii-xxxiv.

[6] Census of India 1951, Vol III, Assam Part I-A, p xxxi.

[7]Assam Law Report 1970, A&N 206.

[8] 2005(4) GLT 206 MD. Babul Rahman vs UOI

[9] 2008(3) GLT 272 Mustt. Sarabari Begum vs State of Assam, para 208.

[10]Annexure 16 A to the White Paper on Foreigners Issue

[11]The Telegraph, 16th September, 2012 ‘Groups oppose NRC Update’. BJP, AUDF in NRC tiff in The Telegraph, 21st April, 2015.

[12]“Applicants living outside Assam and India will now be able to submit their family tree form online for the National Register of Citizens (NRC) update….The NRC officials are hopeful of being able to publish the draft NRC within August.” See The Telegraph, Northeast Metro dated the 18th of April 2016.

[13]The Shillong Times, dated 18th April, 2016.

[14]The Telegraph, dated 3rd April, 2016

[15]The Telegraph, dated 3rd April, 2016

[16] Udayon Misra, The Periphery Strikes Back: Challenges to the Nation-State in Assam and Nagaland, Indian Institute of Advanced Studies, Shimla,2000(2013)

[17] Anupama Roy, Ambivalence of Citizenship in Assam, EPW, Vol.LInos.26&27, p45.

[18] Binayak Dutta, ‘The Stout fanatical Muhammadan’ and Mullan’s Burden: the History of Bengali Immigration in Colonial Assam’ in Man and Society, Vol. XI, Winter, 2014, pp70-85.