Solving a Trilemma — The Way Forward for the NRC

This is a guest post by Alok Prasanna Kumar. He is the Co-Founder and Lead of Vidhi Karnataka. His areas of research include judicial reforms, constitutional law, urban development, and law and technology. He has also previously practised in the Supreme Court and the Delhi High Court.

The preparation of the National Register of Citizens (NRC) for the State of Assam, carried out under the supervision of the Supreme Court of India — between 2014 and 2019 — has been a source of much anguish. Not just for the tedious procedure it involved, but also the eventual consequences on those left out of the list. Out of Assam’s estimated population of 3.3 crores, 3.1 crore, or so, were included in the list; but approximately 19 lakh people were left out. There is no legal certainty for the residents of Assam who have been left out of the NRC.

Merely being excluded from the NRC does not amount to cancellation or loss of citizenship. That can only be done by the Union Government on the recommendation of the Foreigners’ Tribunal under the Foreigners Act 1946. The Foreigners’ Tribunal, set up under the Foreigners (Tribunals) Order, 1964   can, on the basis of evidence before it, render its opinion that someone is a “foreigner”, and, therefore, not a citizen.

Those left out from the NRC are in a state of limbo — being persons whose citizenship status is now in doubt. Section 9 of the Foreigners Act places the onus of proving citizenship on the person whose citizenship is in question. Failing to do so will render the person stateless unless they can show some connection to  another country (under Section 8 of the Act) – which might not be possible for most since there is little hard evidence to connect them with any country beyond. What the NRC has done is create a population of 19 lakh trishankus — the figure from Hindu mythology who was unwanted, both in heaven and on earth, and therefore suspended upside down between the two realms.

Following the publication of the NRC in August 2019, things have remained at an uneasy status quo. Neither the Union Government, the Assam State Government, nor the Supreme Court has charted a clear way forward. There have been attempts to “reverify” the NRC but they have come to nought. A recent effort was made to remove more names from the NRC but the same is under challenge in the Supreme Court.

As it stands, the only path that seems obvious is the one of inertia — as the law stands, simply being left out of the NRC does not cancel one’s citizenship. A Foreigners’ Tribunal has to adjudicate on the merits of each person’s case before arriving at that conclusion. Is the judicial route —  often the path of least resistance in India — an appropriate way to address the future of the 19 lakh persons left out of the NRC?

The task of addressing the citizenship claims of 19 lakh people before a Foreigners’ Tribunal is a gargantuan one. To give some perspective: the total number of cases referred to the Foreigners’ Tribunals between 1985 and 2019 (over 34 years) was 4,68,905. In 2018, the last year for which complete data was available, only 14,552 cases were disposed of by the Foreigners’ Tribunals in Assam. Needless to say, at the present capacity, FTs are woefully ill-equipped to handle 19 lakh cases, in any reasonable period.

Implicit in the discussion about the people left out of the NRC, so far, has been that:  a lot of genuine citizens have been left out of the list, for a variety of reasons. If we assume that approximately half the people on the list can prove, in some manner, that they are in fact citizens of India, that still leaves nearly 10 lakh people who are now rendered stateless.

But, they are not entirely without remedy —  they can still approach the Gauhati High Court, through a writ petition, and challenge the order finding them to be non-citizens. Even assuming that only half of the persons rendered stateless may have the resources or the capacity to approach a higher forum, this would mean, about, five lakh cases flooding the Gauhati High Court, over a period of time. For a Court that, as on date (according to the NJDG portal), has only about 52,000 pending cases, this is a veritable tsunami it will be unable to handle. Even if the cases are staggered over ten years, it would amount to more than double the annual number of cases filed in the High Court!

The judicial process is not going to provide any clarity, in any reasonable period of time, to those left out of the NRC. Rather, it is likely to compound their misery as the financial, emotional and psychological costs of litigation will take a severe toll on them. 

Should, then, the NRC be junked as a whole?

There is one school of thought that argues that the entire NRC exercise is entirely illegal and unconstitutional. One argument is that the NRC, sought to be done under the Registration of Citizens and Issue of National Identity Card Rules 2003, is contrary to the Citizenship Act 1955, and therefore ultra vires. There is also the argument that contends: creating a separate citizenship regime for residents of Assam would be unconstitutional. The latter question especially, in so far as Section 6A is concerned, is pending adjudication in the Supreme Court, before a Constitution Bench.

This certainly raises the question as to why the Supreme Court proceeded with overseeing the NRC exercise when fundamental questions about its legality and constitutionality were pending. The Supreme Court itself has clarified that the NRC updating exercise will be subject to the orders in the pending challenge to the constitutionality of Section 6A and other provisions relating to citizenship, applicable only to Assam.

If the SC upholds the validity of these provisions then the present (unsatisfactory) status quo, continues. If the Supreme Court does not — and the entire NRC is held to be unconstitutional — it will not necessarily address all the problems.

Leaving aside what it means for the institutional credibility of the Supreme Court or the sanctity of the Assam Accord —  there is also the fact that the NRC has provided a measure of security to those who were included in it, from accusations of being “outsiders”. The fact that those who were accused of being “outsiders”, solely by virtue of their religion or language, are more confident of their status has become the basis for dismissing the NRC as “flawed”! There is no guarantee that a fresh NRC will in any way provide a solution to the problems of those included and those left out without causing an increased burden to all the inhabitants of Assam, once again. The existing procedure was traumatic for the economically vulnerable, and inflicting it on them again would not serve any purpose; it will only recreate an unhappy status quo.

The NRC itself is not a recent judicial or legislative innovation. Demands for its updation precede the Assam Accord itself, and it was intended to address concerns of indigenous people and native Assamese about the large-scale influx of people from Bangladesh (mostly illegally), and what that might do to the cultural and demographic character of the State. It would not behove anyone (let alone a savarna mainland Indian such as myself) to simply dismiss such concerns as “ethno-fascism” or xenophobia.

The demand for an NRC has its origins in the immediate aftermath of India’s chaotic partition — in 1947 — when peoples left their homes in panic, unsure of whether they will end up in Muslim-majority Pakistan or Hindu-majority India. Assam, which has historically seen the movement of peoples from what is now West Bengal and Bangladesh, was faced with an influx of people — in a manner that threatened to completely change the demographic and indigenous character of the state. The worries of both the native Assamese and the Bengalis, who had come over from what would eventually become East Pakistan, are reflected in the representations sent to the Constituent Assembly and the then Central Government on the question of citizenship. At the same time, there were Bengalis who had been living in Assam for generations who did not wish to be caught in this conflict over identity and citizenship and also sought the protection of the Government. The solution proposed was the National Register of Citizens, which was first prepared in 1951.

When the Assam Accord was signed in 1986, the Indian government shifted the cut-off date to 1971, effectively putting to rest the citizenship status of those who had come to Assam before that. Even for those who had entered the country illegally — between 1966 and 1971 — a process was provided for them to become citizens, with a few limitations on exercising franchise. This was reflected in Section 6A of the Citizenship Act. A total scrapping of Section 6A might, therefore, jeopardize the rights of even those who have benefited from it, and unravel the Assam Accord.

Here then is the trilemma which presents itself —  how to chart a path forward, with respect to the NRC, that addresses the human rights of those left out of it, without unsettling the rights of those already on the list, or scrapping a key part of the Assam Accord, which embodies a key demand of native Assamese and indigenous people of the region?

One way out of this is to offer a path of full citizenship to the individuals left out of the NRC, without fundamentally altering the demographics of the State of Assam, or disturbing the rights of anyone already deemed a citizen under the NRC. This would be a one-time measure available to those who sought inclusion in the NRC and did not get it. It would not be available to those who entered India illegally after August 31, 2019. Such a measure is already on the books in Section 6A of the Citizenship Act.

However, this does not fully address the concerns of genuine citizens of India who have not been able to get enlisted in the NRC. For them, the appropriate solution would be to widen the set of proofs; and the manner in which they can show residency, parentage, et al in a manner that would conclusively show their citizenship. The present list of documents permitted, to show proof of citizenship, is in no way exhaustive of the ways in which one can prove one’s citizenship in accordance with the Citizenship Act, 1955. Further, it privileges documentary evidence (a significant barrier) over oral and other evidence which are just as valid in law and might be easier for people to produce. It has to be kept in mind that citizenship is a legal fiction that comes into effect after certain facts are established and establishing these facts should not become an ordeal.

This should be offered as an option. Those who are confident of being able to prove their citizenship should be allowed to do so. Those, however, who are not going to be able to, for whatever reason, should be offered a pathway to citizenship.

A caveat is necessary here — the NRC and its fallout is the result of social and political processes more than a hundred years in the making. From colonial administrations which saw Assam as no more than a place to grow tea and extract oil to Hindutva right-wing parties looking to divide the state on religious lines for political ends — Assam has seen much turmoil and disturbance over the issue of immigration and ethnicity. Even as the Constitution of India attempted to give clarity on issues of citizenship across the country, this question was left unresolved in the context of Assam. Yet, the Constitution lays down certain principles that can guide us out of this thorny thicket and find a way out to protect the future of those left out of the NRC.

Absence of Jurisdictional Fact of Application of Mind in the Reference

  1. The Referring Authority is required to show the application of mind to the facts and law before him, and then record his satisfaction based on the materials collected by the Investigating Officer before forwarding a reference to the Tribunal.
  • State of Assam v. Moslem Mandal reported in (2013) 3 GLR 402 at para 98 [Full Bench]

[97] The reference by the referral authority also cannot be mechanical. The referral authority has to apply his mind on the materials collected by the investigating officer during investigation and make the reference on being satisfied that there are grounds for making such reference. The referral authority, however, need not pass a detailed order recording his satisfaction. An order agreeing with the investigation would suffice. The referral authority also, while making the reference, shall produce all the materials collected during investigation before the Tribunal, as the Tribunal is required prima facie to satisfy itself about the existence of the main grounds before issuing the notice to the proceedee.”.

  1. Meaning of Application of Mind:
  • Application of mind is not defined in any case but has been applied in various contexts where an authority is given discretionary powers and it has been held that the power is to be exercised by application of mind to the facts and circumstances of the case in hand.
  • When discretion is conferred on an authority, it must personally exercise the same; it must apply its own mind to the facts and circumstances of each case and come to its own decision. If the authority acts without applying its mind to the case before it, then the action or decision taken by it will be without jurisdiction because it has not exercised its discretion in accordance with the law.
  • In accordance with State of Assam v. Moslem Mandal reported in (2013) 3 GLR 402 at para 98, along with the case file, the referring authority must forward their observations recording their satisfaction in such manner that demonstrates their application of mind to the facts and circumstances of the case. The absence of such reasons must be held to vitiate the entire proceeding before the Foreigners’ Tribunal.
  • The non-application of mind is even more relevant in ex parte cases where the opinion of the Foreigners’ Tribunal is based entirely on the main grounds along with the supporting materials forwarded with the reference.
  1. Facets to demonstrate the application of mind:
  • Material facts of the case should be taken into consideration:

In the case of Satpal v. State of Haryana (AIR 2000 SC 1702), in the context of the pardoning powers of the Governor under Article 161 of the Constitution, the Supreme Court held that the decision-making authority must be apprised of the materials facts in the case to demonstrate proper application of mind.

  • The authority should be personally satisfied:

The appropriate authority must be personally satisfied as to the grounds on the basis of which the decision is taken. For example, in the case of Jaganath v. State of Orissa (AIR 1966 SC 1140), an order of detention under rule 30(1) (b) of the Defence of India Rules was challenged on the ground that it was as not based upon the satisfaction of the Government. The Supreme Court observed that in the order of detention, six grounds were verbatim reproduced from the relevant empowering section, whereas the affidavit of the Minister who issued the order indicated that he was “personally satisfied” of only two out of the six grounds mentioned in the order. The Supreme Court ruled that the Minister had acted mechanically in passing the order and quashed the order of detention.

  • Application of mind must be apparent from the order itself:

In the context of the issuance of summons on a private criminal complaint, the Supreme Court in Pepsi Foods Ltd. and Another v. Special Judicial Magistrate and Others ((1998) 5 SCC 749), has held that application of mind has to be indicated by disclosure of mind on the satisfaction. The Magistrate is not to act as a post office in taking cognizance of the complaint. There must be sufficient indication in the order as to the application of mind. Similarly, in Birla Corporation Limited v. Adventz Investments and Holdings Ltd. & Another (AIR 2019 SC 2390), the Supreme Court has held that application of mind has to be indicated by disclosure of mind on satisfaction, through a reasoned order (though not elaborately reasoned). To give reasoned decisions is a requirement of natural justice and the order must show which particular circumstance received due consideration while arriving at the decision [State (Delhi Administration) vs Anil Puri And Ors. 28 (1985) DLT 474, para 10]

  • Application of mind must be prima facie through the reasons recorded:

As per Section 147 of the Income Tax Act, 1961, the Income Tax Department has the power to reassess an individual’s previously filed income tax returns by sending a notice under section 148 of the Income Tax Act, 1961 along with recording one’s satisfaction that the income has escaped assessment. In Joint Commissioner of Income-Tax v. George Williamson (Assam) Ltd. (2002 SCC OnLine Gau 351; (2002) 258 ITR 126; (2003) 181 CTR 69), a Division Bench of the Gauhati High Court held that in the absence of specific material before the assessing authority and any independent enquiry, there did not appear to be a link between the facts found and the satisfaction arrived at by the assessing authority. It was accordingly held that there was no application of mind to the facts alleged to have been found, and the action taken was quashed as being not maintainable in law. Similarly, in the case of Pr. CIT vs. G & G Pharma India Ltd. ((2016) 384 ITR 147 (Del.)), the Delhi High Court held that application of mind by the Assessing Officer to the material produced before issuing the notice for reassessment was a basic jurisdictional requirement for reassessment. Without analysing and forming a prima facie opinion on the basis of the material produced, it was not possible for the Assessing Officer to conclude that he had reason to believe that income had escaped assessment. For other High Courts, see Yuvraj v. Union of India ((2009) 315 ITR 84) [Bombay High Court Division Bench]; Kamala Properties v. Inspecting Assistant Commissioner of Income Tax, Special Range-IV Calcutta (1992 SCC OnLine Cal 124; (1992) 2 CHN 295) [Calcutta High Court Single Judge].

  • Non-application of mind is a jurisdictional error and would result in vitiation of the proceedings:

In Anirudhsinhji Karansinhji Jadeja v. State of Gujarat ((1995) 5 SCC 302), a three-judge bench of the Supreme Court quashed proceedings initiated under the TADA for the reason that the sanction granted by the State Government for the prosecution was without the proper application of mind. It observed that the State Government merely followed the advice of the Deputy Superintendent of Police without any independent application of mind to the facts and held as follows:

[14] The present was thus a clear case of exercise of power on the basis of external dictation. That the dictation came on the prayer of the DSP will not make any difference to the principle. The DSP did not exercise the jurisdiction vested in him by the statute and did not grant approval to the recording of the information under TADA in the exercise of his discretion.

[15] The aforesaid is however not all. Even if it be accepted that as an additional safeguard against the arbitrary exercise of the drastic provisions, the State Government had provided by administrative instructions an additional safeguard whereunder the DSP was required to obtain the sanction/consent of the State Government, we are of the view that in the present case the same was given by the State Government without proper application of mind. We have taken this view because the sanction/consent was given by the Government merely on the basis of the fax message dated 17-3-1995 of the DSP. The reason for our saying so is that though there is no record a fax message of Deputy Director General of Police also, which is dated 18-3-1995, the sanction/consent order has mentioned above the fax message of the DSP only. Now, no doubt the message of the DSP is quite exhaustive, as would appear from that message which has been quoted above in full, we are inclined to think that before agreeing to the use of harsh provisions of TADA against the appellants, the Government ought to have taken some steps to satisfy itself whether what had been stated by the DSP was borne out by the records, which apparently had not been called for in the present case, as the sanction/consent was given post-haste on 18-3-1995, i.e., the very next day of the message of the DSP… The State Government gave the sanction without even discussing the matter with the investigating officer and without assessing the situation independently. All these show lack of proper and due application of mind by the State Government while giving sanction/consent.

[16] For the aforesaid twin reasons, we state that the entire proceeding against the appellants under TADA is vitiated and the same is, therefore, quashed.”