Guwahati: Shah Alam Bhuyan, an assistant inspector in the Assam police, reminded me of a stark truth about policemen on election duty: “We just help others vote, most of us can’t vote because we are usually on election duty away from where our constituency is.”

That he hasn’t been able to vote for many terms doesn’t quite bother him. “If voting in an election is an important national duty, so is ensuring that elections go off well. That’s why I have never complained,” the 53-year-old said.

But during the 2011 assembly elections in Assam, he got a chance to go home on voting day. He remembered thinking that he “must vote”. However, what awaited him at the polling booth in Rowmari village in the state’s Barpeta district was not just a rude shock, but a revelation about how arbitrarily the state Election Commission must have marked many voters of the state as ‘D’, or ‘Doubtful’ . A doubtful voter can’t vote because his Indian citizenship is under suspicion. Exclusive to Assam, the EC introduced the category in 1997 upon being faced with an unending “anti-immigration” issue, one which had led to the Assam Accord in 1985 as per which an exclusive citizenship cut-off date was also introduced for the state (March 25, 1971).

That day in 2011, Bhuyan was told by the polling officer that the EC had marked him a D voter in 1997.

“I came back home very disappointed and confused about what basis I had been made a D voter on. Perhaps it was because I am possibly the only Bhuyan in a village full of people with surnames like Ali and Ahmed. Maybe someone thought ‘who is this Bhuyan here’ and ‘he must be a Bangladeshi’. I am a native of Nagaon district. Though we are Muslims, we never dropped our original surname. You will find many Muslim Bhuyan in the Nagaon area. Rowmari is my wife’s village. My family moved here because she works here,” Bhuyan said.

Eventually, he left for work in Guwahati. “I didn’t get time to pursue my case. After all, I have been on security duty for the state chief minister – from Tarun Gogoi’s time to Sarbananda Sonowal. But what I did then was request an MLA to ask a question about my D voter status in the assembly. It prompted the then chief minister Gogoi to respond, saying, ‘It must be a mistake. It will be corrected.’”

The years rolled by. As usual, Bhuyan didn’t get a chance to go home for the 2014 Lok Sabha and the 2016 assembly polls to check on any change in his voter status as promised, even though his wife “kept pestering” him “to treat the matter seriously as the NRC (National Register of Citizens) update process had begun in the state by then to determine one’s citizenship status”.

“Since I barely had any free time, she took it upon herself to pursue it; she took my documents to the local police station in early 2017. They laughed, saying how can he be a D voter, and told her not to worry. The usual process of clearing my name began. The local Border Police unit sent a notice and thereafter I was to hire a lawyer to fight my case in the foreigners’ tribunal to prove my Indian citizenship by presenting the relevant documents on a given date. As expected, I was cleared by the tribunal on March 28, 2017. There was a sigh of relief in my family,” he said.

That comfort turned out to be temporary. “In the beginning of 2018, my son got selected by the Border Security Force and needed police clearance. When he went to the local police station, they found that I am still a D voter as per the EC list. But the local inspector, looking at my job as a fellow policeman, was ready to look at my case. He checked all my documents, saw the tribunal order, and gave him police clearance. Thereafter, I sent my wife to the local election commission authorities to present my tribunal order so that the EC could update my voter status. Strangely, it was rejected; she was told that the EC would not be taking this into cognisance,” he claimed.

People show their acknowledgment receipts after checking in their names in a draft for NRC. Credit: PTI

With the final draft of the NRC out in less than a week from now – on July 30 – Bhuyan told The Wire, “I wouldn’t have bothered much because the tribunal has already cleared my citizenship status and I am a state government employee and was selected after following due process. But for the first time, I am worried. I am worried because the tribunal clearance may not mean much now as the NRC authorities must also be taking into cognisance the EC list to prepare the final draft which has not yet accepted my present voter status. Despite providing all the papers, this must be the reason why my name was not there in the first draft, though my entire family’s name is featured in Nagaon.”

On July 2, the Supreme Court, monitoring the update process, allowed NRC authorities to keep immediate families of those marked as D voters (in the EC list) out of the final draft till their cases are sorted out by the tribunals.

“What appeared to be a bureaucratic anomaly is now threatening to rob me and my family of our Indian citizenship,” said Bhuyan.   

Bhuyan’s case is a perfect example of how the NRC update process is working without any synergy with other parallel organs of the government that are involved in the citizenship determination of the residents of the state. This has led to several questions. Will the NRC authorities take into cognisance only the EC’s D voter list, which seems to have not yet recognised the tribunal verdicts?

In the run-up to the 2016 polls, as is the norm, the electoral rolls of the state must have been revised. By that logic, Bhuyan’s voter status might still have been ‘D’ at the time, simply because he got the tribunal clearance only in 2017. Since those like Bhuyan are still in the ‘D’ list even after the tribunal verdicts have come in their favour, it leads to another question: Why is EC not taking this into cognisance and revising its list before the final draft NRC is out? While as many as 100 tribunals are dealing with cases mostly based on the EC list, why is there no visible mechanism in place yet for the EC to continuously update its list based on the judgements?

In a state where an extraordinary exercise of citizenship enumeration is on, why is the EC not taking measures to match it so that those whose citizenship status has been cleared by tribunals can be included in the draft NRC along with their families? Waiting for the 2019 Lok Sabha elections to update the electoral rolls will deny many genuine citizens the right to be part of the final draft NRC, a point that a constitutional body overseeing the biggest right given to a citizen in a democracy – the right to vote – may well be concerned about. 

On being asked, the EC office in Delhi directed this correspondent to the Assam chief electoral officer, but a reply to the email which was sent is still awaited. The state EC portal not only doesn’t show the list of D voters, but in its FAQ section it also doesn’t state any procedure that such voters should follow.

The Wire has also asked Prateek Hajela, the state coordinator for the NRC, being carried out by the Register General of India as per a Supreme Court judgment in 2015, whether the NRC final draft preparation process would take cognisance of the tribunal verdicts. The response is awaited.

Another arm of the government which is also dealing with the citizenship status of the state’s residents – the Assam Border Police – is also working without any synergy with the NRC process. Even as people are awaiting the fate of their NRC applications (3.29 crore people in total, of which 1.29 crore were named in the first draft), the Border Police is going about issuing notices to the same set of people and doubting their citizenship status.

Responding to a July 13 report filed by a fact-finding team which visited some parts of Assam on the NRC issue, Hajela, also the state principal secretary (home), said in a public statement,

“The stated report uses the Supreme Court project of NRC update, Election Commission identification of D voters and the process of identification of foreigners by Border Police/tribunal system interchangeably. Whereas all the above processes involve issues related to citizenship determination, there are important differences which make the NRC process very distinct.” 

Indeed, these processes are distinct from each other and perhaps it is time to question why, primarily because the separate processes of citizenship determination are being carried out on parallel lines on the same set of people with differing results.

A faulty process of citizenship determination

Take the case of Jiban Chandra Dey, a resident of Rangia’s Tamulpur village in the state’s Kamrup Rural district. Though he found his name in the first draft NRC released on January 1, 2018, based on the required documents sought by the authorities, he was declared a foreigner by a tribunal on June 30, which rejected the same documents.

Jiban Chandra Dey. Credit: Special arrangement

“My father was voting till the 2011 state assembly elections. But when he went to vote for the the 2014 Lok Sabha elections, he was told his name has been put under ‘D’ in the electoral list. He had no idea why. He works in a local cloth shop, isn’t very educated and didn’t know what to do to change the status. Meanwhile, the NRC update process began. So he applied as he had the required papers, and thought that it would all get fixed by the NRC process. Then someone told him that it has to be done through the EC. So the local BLO (booth level officer) was approached, who advised him to go to the local Border Police unit, telling him it is the authority which will sort it out. On approaching them, the Border Police issued him a notice; we hired a lawyer and the case went on and on at the tribunal. By then, the first draft of the NRC was out and his name was on it. The lawyer gave him confidence that the tribunal judgement will be in his favour too. Meanwhile, the tribunal judge was changed and a new judge declared him a foreigner on June 30. Now the lawyer says my father will have to fight his case in the Gauhati high court,” said his son, Prosenjit Dey.

Jiban Chandra Dey’s case begs a question: Does featuring in the NRC draft not automatically mean one’s citizenship is proven? Already, the NRC authorities informed the Supreme Court that 1.25 lakh people included in the first draft would be removed from the final draft. “Names of 65,694 people, which appeared in the first draft, were found to be inadmissible during the family tree verification, as were names of 48,456 married women who submitted panchayat certificates as linkages,” Hajela reportedly told the Supreme Court on July 2. “Names of another 19, 783 people were found to be admissible during quality control checks,” he added.

It is understood that this is a mammoth undertaking being carried out for the first time in the country with no prior experience to draw from. Therefore, the question arises, what is the guarantee that similar “quality control” or other issues will not pop up even after the final draft is out?

More so, what do the likes of Dey, who featured in the NRC but failed the tribunal test, do? It puts them in an odd situation in the absence of a robust system that connects all the three processes of citizenship determination.

Because Dey was declared a foreigner by setting aside the NRC decision, he and his family would most likely be out of the final draft NRC, as per the June 22 Gauhati high court order. On May 2, NRC state coordinator Prateek  Hajela had issued a notification stating that the families of those who have been declared foreigner by the tribunals would not be included in the final draft NRC till the person’s citizenship status is cleared by the higher courts.

Azizul Haque of Fakirganj, Dhubri district, whose brother was declared a foreigner by a tribunal, filed a petition before the two-judge bench led by Justice Ujjal Bhuyan (he was removed from the panel on July 3), seeking quashing of that order as he and rest of his family would be out of the final draft even if they are Indian citizens and no such allegations had been brought against them by the Border Police. However, the court rejected his plea.   

Prosenjit told The Wire, “There are many people in our area who have been cleared by the NRC but they have been made a D voter by the EC. Many are yet to get the notice from the Border Police. Since most of the people are illiterate and poor, they have no idea about the legal procedure and were hoping that NRC would clear their status. But with my father’s case, many are worried. I am very worried too because it is linked to my future. The money I saved by running a computer shop in Tamulpur for my studies went in fighting my father’s case in the tribunal. Now we don’t have any money to fight his case in the high court. We have already borrowed money.”

The power of social media helped him find a lawyer in the high court who is willing to fight his case pro bono. “I came across a video of The Wire where a young Gauhati high court lawyer explained the entire process of how a person becomes a D voter or a foreigner. I sent him a Facebook request and shared my father’s case with. He is now preparing the documents to file my father’s appeal in the high court.”

But why is it that the tribunal verdicts are not taken into cognisance by the Border Police before forwarding cases of suspected foreigners to the tribunals? Also, why do the tribunals keep taking up cases of the same people without questioning why the Border Police repeatedly keeps issuing notices to them? Why is there no mechanism to reject the already tried cases? Who is benefitting from this roundabout process?

The tribunals must be taking up the cases due to a Gauhati high court order which said even if a person is declared an Indian by a tribunal, it is not binding on the tribunals to reject new referred cases against the same person. However the new two-judge bench handling the D voter/foreigner cases is putting a stay on similar cases.

Take the case of Govinda Das, a resident of Borkhola in Cachar district. He was declared to be Indian twice – in 1988 and in 2015 – by the tribunal which had the same jurisdiction. However, neither of the verdicts helped him get his name removed from the D voter list. This is why, despite Das being an Indian citizen, he has never been able to vote in any election since 1998.

A clip from a local newspaper story on Govinda Das.

“I am a poor man, have no children to look after me. I have already spent whatever I had to fight these cases in the tribunal. The worse part is, even though the tribunal declared me an Indian citizen twice, I am refused any government welfare services because I don’t have an election card. The EC will not issue me a card because according to them I am still a D voter. Though the mechanism to clear my name is through tribunals, the EC doesn’t seem to take cognisance of their verdicts. I only see lawyers making money over and over again,” he said.

A frustrated Das reportedly has been pushed to the brink of suicide.

Though all the three parallel processes of citizenship determination in the state are yet to be linked to lessen people’s frustration at how the government machinery is working on a sensitive issue, on July 8, the state police issued an order that superintendents of police would have to “explain and justify” the reasons behind referring or not referring a suspected foreigner case to the tribunals. The decision was reportedly taken to not only set accountability on the part of the police investigator of such cases, but also to lessen the burden on the tribunals. Local media reports said contrary to submissions made by the Border Police, the department has so far scrutinised over 3,000 cases where the tribunals have declared the accused an Indian citizen. 

According to the latest figures provided by the state Border Police, which works under the mandate of the Foreigners Act, 1946 and the Foreigners Tribunals Order, 1964, a total of 93,399 persons have been declared foreigners out of 3,17792 cases from 1985 to February 2018. This total figure includes 1,28,969 D voter cases. 

This brings us back to the same question: How many of those among the 3,17,792 people who were found to be Indian citizens by the tribunals (so more than half of the cases heard) have been returned their right to vote as a citizen by the EC?

Police data say as many as 1,68,187 cases, of which 1,15175 are D voter cases, are pending in the tribunals as of February 2018.

Meanwhile, Jiban Chandra Dey’s son Prosenjit told The Wire, “A young man from a family background like mine can never dream of higher studies. They can’t dream of doing an LLB to become an advocate, but I have made up my mind after seeing my father’s case. Who knows, one day I may become a lawyer or a judge and be able to do some good, serving poor people like those in my village who are living in perennial fear, thinking they will not only be able to never vote again even if the tribunals clear them, but will also never be able to get any benefits from government schemes.”