Home Open space The Burden of Proof On D-Voters Amidst NRC Crisis In Assam

The Burden of Proof On D-Voters Amidst NRC Crisis In Assam

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Credit: The Hindu

In the midst of uproar against the illegal immigrants in Assam, the original residents of the state are fighting for retaining their identity. This is specially the case with the Bengali speaking Hindus and Muslims who although are the original inhabitants of the state are often seen as Bangladeshis owing to them being a linguistic and religious minority.

The crux of the whole citizenshipcrisis revolves around two issues: the National Register of Citizen(NRC) and the Citizenship (Amendment) Bill, first tabled in Parliament on July 15, 2016.

What is National Register of Citizen (NRC) and Citizenship (Amendment) Bill, 2016?        

The NRC is the register that contains all the particulars of a person recorded during the 1951 Census. The record shows in respect of each village, houses or holdings in a serial order and indicating against each house or holding the number and names of persons staying therein. It is updated as per the provisions of The Citizenship Act, 1955 and The Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003. The eligibility for inclusion in updated NRC is based on the NRC, 1951, Electoral Rolls up to the midnight of 24th March, 1971 and in their absence the list of admissible documents issued up to midnight of 24th March, 1971, which is seen as a cut-off date as whoever registers after this date is considered a foreigner. This date happens to coincide with the Bangladesh war.

The demands to update the NRC of 1951 were first raised by the All Assam Students’ Union (AASU) and Assam Gana Parishad (AGP) more than three decades ago. The organizations had submitted a memorandum to the Centre on January 18, 1980, two months after launching the anti-illegal foreigners Assam Movement.

In the rest of India, according to local activists, the NRC is governed by Rule 4 of the Citizenship Rules. The NRC staff thereby has to go door-to-door to verify citizenship documents and testimonies. Under Rule 4A, which is specific to Assam, in each area (gram panchayat) NRC Seva Kendras are set up where residents have to take a form, fill it up and submit with documents. The onus is on those who are marked doubtful to prove their citizenship.

Since the BJP led NDA party took over the state the NRC has been fast-tracked but operating under the supervision of the Supreme Court. According to the first report released by NRC on December 31, 2016 1.9 crore out of the total 3.29 crore applicants were declared as Indian citizens. The unpublished names are still under varied stages of verification. The Registrar General of India said that schedule to publish the next draft will be decided as per the guidelines of the Supreme Court in April, 2018. The process of filing the applications had ended in May, 2018 and a total of 6.5 crore documents were received from 68.27 lakh families across Assam.

The people of Assam, BJP, Asom Gana Parisad (AGP), and the All Assam Student’s Union (AASU) are in favor of the NRC. However, except for BJP, who wants to introduce the bill, they are all against Citizenship (Amendment) Bill, 2016 as it would amend the Citizenship Act of 1955 thereby granting civilian right to the Hindus, Jains, Christians, Parsi, Buddhists, and Sikhs who suffer religious persecution in Pakistan, Bangladesh, and Afghanistan. Leaving the other section like Muslims and Jews without such rights when various Muslim sects like Shias and Ahemediyas face persecution in Pakistan.

Prafulla Mahanta, founder-president of AASU and twice chief minister of the state, told the fact finding team of United Against Hate in Guwahati on June 29 that the AGP will break the alliance with the BJP if it pushes the Citizenship Amendment Bill.

Who is a D-Voter?

D-voter stands for doubtful/disputed voter. It is a category of voters who are suspected to be foreigners i.e., Bangladeshis, illegally residing in Assam. All their citizenship rights, entitlements and privileges as an Indian are withheld until they prove their claim of being an Indian.

In 1997, the Election Commission (EC) identified several hundred thousand people as D voters, most of them were Muslims, but it also included Bengali Hindus, Koch Rajbangshis, Nepalis and others. There are 100 tribunals and thousands of such voters are placed under the scanner of the Foreigners Tribunal (FT) and the Assam Border Police.

The process of identifying D voters came into being after a huge political mobilization led by AASU and other ultra-nationalist organizations, with the government being asked to carry out an intensive revision of the voters list across Assam.

Although Assam has 5 million of the India-wide 20 million illegal Bangladeshi immigrants residing yet, only the aforementioned state has the concept of D-voters.

Unlike the rest of India, where the NRC is governed by Rule 4 of the Citizenship Rules, the NRC staff thereby has to go door-to-door to verify citizenship documents and testimonies. While in Assam Rule 4A is followed, according to which in each area (gram panchayat) NRC Seva Kendras are set up where residents have to take a form, fill it up and submit with documents. The burden is on those who are ‘doubtful’ to prove their citizenship.

Also read The Stateless People In Assam

NRC Seva Kendra (NSK) are help desks set up in each district covering approximately 2,500 household. They assist in searching for Legacy data, issuing of Legacy Data Code and the receipt of NRC application forms. However, for submission of application forms, one is required to visit only the NSK designated for current area of residence. There are a total of 2,500 NSKs set up in Assam.

Legacy Data is the digitalized 1951 NRC and all the electoral that rolls up to March 24, 1971. Legacy Data code is a 11-digit data code which is like a PNR number (as in rail or air travel booking). It contains all the information about a person whose name appears in the Legacy Data.

During surveillance, if the Border Police, which have been working since 1962, finds anyone’s citizenship doubtful, it charge sheets the person and sends the case to the concerned Superintendent of Police (SP) (Border) who refers the matter to the Foreigners Tribunal, which came into existence in 1964, and the tribunal summons the person to prove his or her citizenship.

Another way is that during preparation of the NRC, a report can be made of person(s) not being able to provide paperwork/documents. This too goes through the SP(B) and the person finally deposes before the tribunal, which serves notice to the person concerned. There are allegations that hundreds of people have not received official notices and they don’t even have access to internet in rural areas. So, if they miss their hearing as they have no documentary/written notice, they can be declared ‘D-Voter’ ex parte.

Or, during revision of electoral roll in 1997, in accordance to the instructions by the Election Commission of India (ECI), January 5, 1998, the letter ‘D’ was marked against the name of those electors who couldn’t prove their Indian citizenship status at the time of verification through Local Verification Officers (LVOs). Following that, an intensive revision of electoral rolls began, involving door to door survey in order to enlist only genuine Indian citizens. The persons who couldn’t provide evidence in favor of their Indian nationality were marked with D in the electoral rolls. During the survey, the absentee voters too were marked with D. Around 370,000 persons were thus declared as D voters by the Election Commission of India.

Based upon the report of the LVOs, the Election Registration Officers take a decision on whether a reference to the concerned Tribunal is necessary to ascertain the Indian citizenship status of such elector. Once the Electoral Registration Officers confirm in the affirmative, such cases were forwarded to the Superintendent of Police (SP) of the concerned district for reference to the concerned tribunal.Out of an estimated 370,000, only 199,631 cases were referred to the tribunals for verification. During the initial trials 3,686 persons were found to be foreigners, who names were removed from the electoral rolls. People have to reportedly supply 16 valid documents to prove their Indian identity. The Foreigners Tribunal has added the requirement of mapping a family tree history, which is allegedly an addition. If they wish to appeal – they have to approach the one-judge divisional bench of the Guwahati High Court, led by Justice UjjalBhuiya. Most of the people, especially the poor and illiterate living in distant villages and rural interiors, and those who seem to be directly affected, find this entire exercise excruciating. If the high court bench rejects their appeal, they have to go back to the tribunal.

On 4 April 2004, the Guwahati High Court ordered the D voters to be sent to detention camps till their cases are disposed off. Accordingly, the D voters facing trial before the Foreigners Tribunal were sent to the detention camps at Goalpara and Kokrajhar. At these detention centers they have no prison rights as their cases are still undertrial in the courts, which can take months. Local lawyers call their detention in the prisons/ camps “illegal”.

In 2005, another door to door survey was carried out of the Election Commission. During the survey it was found that a huge number of D voters, who were blacklisted in 1997, could not be traced. The number of D voters was officially revised to 181,619. As of June 2012, there were officially 157,465 D voters in Assam, whose credentials are under verification. On 6 January 2014, the State Government informed the Legislature that there were a total of 143,227 D voters in the state.

In July 2011, two middle aged ethnic Bengali Hindus, brothers Santosh Shabdakar and Manotosh Shabdakar, D voters from Tempur Paikan under Algapur constituency in Hailakandi district were declared as Bangladeshi citizens by the Foreigners Tribunal. The brothers, who were rickshaw pullers by profession, were born in Tarapur locality of Silchar in Cachar district. They had exercised their voting rights in the past but were declared as D voters before the 2011 assembly elections. After the verdict, they were arrested by the Hailakandi police who handed them over to BSF in Karimganj. On the midnight of 12 July 2011, the BSF took them to Mahishashan border and pushed them into Bangladesh. Since then the Shabdakar brothers could not be traced.

There are also allegations that in the current scenario the SP(B) randomly pick up names which are declared doubtful without any investigation or verification.

How Big is the Burden of Proof on D-Voters?

The burden of proof lies heavily on the D-Voters as the whole course of their fate is decided by their claim. Many-a-times locals don’t have valid documents, due to varied reasons like shift in geographical location, erosion of villages, floods, theft, the ravages of time, etc. Many women who move to other villages after marriage don’t have their birth/school/electoral evidence certificates. Their families might have authentic documents, though. Hence, they rely on Panchayat certificates, which on appeal, has been given magisterial powers and been ratified by the Supreme Court with verification. This can be based on evidence of family tree, local testimonies by elders, neighbors and the panchayat, among others. However, there are cases where the tribunal and high court rejected the panchayat certificate. People believe it to be a gross miscarriage of justice, whereby a certain official bias, prejudice and partisanship is in full display.

Often due to discrepancies in the documents, as many people who are D-Voters are illiterate and poor, and the weak claims by the lawyers of the defendant can have people fall under this category.

Seasonal migrants, flood-displaced people and other migrants face the brunt of proving their identities astheir temporary address is used to declare them foreigners. In Jaipur village in Barpeta, at least three people who work in Bongai Gaon, were attacked by militants in 1990s, and live in a refugee settlement there. Their wives were declared ‘D-Voters’. The Land documents or settlement office certificates, which are often 100-150 years old are frequently not accepted or are difficult to prove due to shifting revenue records orall together them being lost.

Allegedly, the tea garden laborers, some of whom are tribals, or people from Bengal/Bihar/Jharkhand, or of other Assamese origin have their citizenship intact as their names are not included in the NRC draft or in the enquiry process.

However, Bengali-speaking Muslisms and Bengali Hindus, including Rajbanshis, original inhabitants and tribals of the state, have allegedly been targeted in the ‘D-Voter’ category, often with 1997 as the cutoff date.

Grandfather a Freedom fighter, Granddaughter a D-Voter

Rashminara Begum was served notice in 2016 that asked her to present herself before a Foreigners Tribunal as she was suspected. She submitted all necessary documents and was shocked when the tribunal ruled that she was a foreigner.The ruling was based on a discrepancy in the date of birth of her school certificates. Two different school leaving certificates showed two different dates of birth. However, she had submitted many other documents, including the one from the Secretary of the Gram Panchayat that stated she had moved to her husband’s village after marriage.

The village where Rashminara grew up had been washed away by the Brahmaputra along with her school in the 2004 flood. She lost all her family’s documents from the pre-Independence days, including a certificate saying that her grandfather was a freedom fighter and a Congress leader. She had no way to get additional documents to prove that the discrepancy in the date of birth was just a clerical error by the school authorities. Thus, she was promptly moved to the Kokrajhar Detention Camp in North Assam on November 9, 2016.

“I was three months pregnant and prison was no place for a woman in my condition. I begged and pleaded, but the cops dragged me away,” she said, recalling the horror. She has three daughters. “My daughter Mariyam was just about four-years-old. She was so traumatized that even if she sees a policeman today she hides under the bed, terrified that they will drag her away, the way they took me away,” she said.

Rashminara’s husband, who stitches clothes in Meghalaya, had also got a notice, but was declared an Indian citizen by the FT.

“The front part of the prison complex houses the male criminals and the back portion is for women who have been convicted of crimes as serious as murder. 136 of us so-called foreigners and even some doubtful voters were packed together. It was overcrowded. We were also not allowed to gather in a large group and talk. Also, they did not keep the criminals and foreigners separate, so those women often bullied and terrorised us,” she recalled.

“I got two meals a day and there was a prison doctor. But a pregnant woman needs so much more. The food was barely edible but I had to eat as there was a little life growing inside me,” she said.

Her husband and other daughters visited her in prison and while they were not allowed to give her cooked food, they provided her with fresh clothes, soaps and fruits, whenever they could. Meanwhile, she also appealed against the FT’s ruling in the Guwahati High Court.

“My pregnancy advanced and I was taken to the Kokrajhar R&D Hospital to deliver my baby in May 2017. I stayed there for a month after the delivery,” she said.

Rashminara was given a three-month reprieve by the High Court to nurse her newborn. Meanwhile, the leader of an opposition party intervened and filed a petition on her behalf, praying that the court take into account her special circumstances. Finally, the Supreme Court ordered that Rashminara could stay at home until the final judgment in her case.

“My grandfather fought for Independence. My brother Zakir Hussain has a government job. How can I be a foreigner,” asked a perplexed Rashminara.

There are many other people like Rashminara, who due to some error in their documents or lack of proof are sentenced to jail.

“Unceremoniously herding out those found to be non-citizens as a bunch of cattle is “impractical” and “impossible”. So, we are not asking for it. Citizenship should be confined to people who have a legitimate entitlement to it. Those found non-citizens can still be residents of the state. It happens in many societies across the world; people go to those countries to live and work, have certain rights. They can‟t be criminally assaulted, can find employment, etc. If required, why not issue work permits to them? But in order to relive local anxieties, citizenship should be limited in Assam until March 24, 1971, as per the Assam Accord. I completely believe in it.

Also, once we have an updated NRC, I hope, that we shall find the exact number of immigrant Muslims residing in different districts of the state. Many Hindu chauvinists keep saying that Muslims are going to be in a majority in the state in coming years. This theory is based on fear. An updated NRC will tell us the exact number and will address that fear factor.” Said Guwahati Prof Hiren Gohain, eminent academic and intellectual.

(This article is written based on Fact Finding Report released by United Against Hate on 13 July, 2018)

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