06, Jul 2018 | CJP Team
In what has come as a shock to many, the Gauhati High Court has upheld the May 2, 2018 order by the National Register of Citizens (NRC) State Coordinator, Prateek Hajela, that asks for names of siblings and other family members of Declared Foreigners (DF) to be kept pending from the NRC. This makes entire families vulnerable only because one person in their family has been declared a foreigner!
If the May 2, 2018 order is followed in letter and spirit, then even if someone has provided all necessary documents for inclusion in the NRC, their names will have to be kept pending from the NRC, if even one person from their family has been designated a DF. These people will now, not only have to submit documents proving their citizenship before a Foreigners’ Tribunal (FT), but also prove the authenticity of these documents given how the burden of proof lies on the procedee in a FT trial. They are unlikely to see their name in the NRC draft that is expected to be out on July 30, 2018.
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Therefore, a person’s citizenship can still be doubted and even revoked, if even one person from their family is unable to prove their citizenship by proving documentary evidence as well as proving the authenticity of such documents. This means that entire families could be deleted from the list due to discrepancies in just one person’s documents!
There is also the fear that this would render section 3 (1) (a) of the Indian Citizenship Act, 1955 meaningless. According to this section, every person born in India on or after the 26th day of January, 1950, but before the 1st day of July, 1987 shall be a citizen of India by birth. Now, even if a person is declared as “foreigner”, his siblings might have born in India before the 1st day of July, 1987, which makes them a citizen of India by birth. Moreover, say a person actually illegally infiltrated in to India post March 25, 1971 and finally declared a “foreigner” by Tribunal, his siblings might have entered before the cut-off date as per sec 6A of the Citizenship Act,1955, that does not make them a foreigner. These are important questions that haven’t been addressed adequately.
The Gauhati High Court’s order may be read here:
The Gauhati High Court order of May 2, 2017
The controversial May 2, 2018 order stems from a Gauhati High Court order from exactly a year ago. In 2017, the court passed a common order on two interrelated writ petitions pertaining to the citizenship status of one Aktara Khatoon, the petitioner in the first case (360/2017) had been declared a foreigner by the Foreigners’ Tribunal at Nagaon on October 31, 2016. While passing the order the Tribunal directed the Superintendent of Border (Hojai), to conduct a fresh inquiry into the brothers and sisters of Aktara Khatun stating that if she was a foreigner, her brothers and sister from the same father also cannot be citizens of India. These siblings Abdul Motin, Abdul Kadir and Sahara Khatun became the petitioners in the second case (1610/2017).
The HC disposed off both cases by passing a common order that stated,
…once a proceedee is declared to be a foreigner it would only be a logical corollary to such declaration that his brothers, sisters and other family members would also be foreigners. Therefore, it becomes the duty of the jurisdictional Superintendent of Police (B) to cause enquiry in respect of the brothers, sisters and other family members of the declared foreigners and thereafter, to make a reference to the competent Foreigners’ Tribunal against such brothers, sisters and other family members.”
The original May 2, 2017 Gauhati High Court order may be viewed here:
The NRC State Coordinator’s May 2, 2018 Order
On May 2, 2018 the State Coordinator of the NRC issued an order to asking to keep the names of brothers, sisters and other family members of Declared Foreigners (DF) ‘pending’. This order issued by the State Coordinator of NRC to all Deputy Commissioner and District Registrar of Citizen Registration (DRCR) of all districts is based on May 2, 2017 Gauhati HC order, and states that,
As per this Judgement, the Superintendent of Police (B) are required to make references of such persons, namely, brothers, sisters and other family members of Declared Foreigners (DF) to the Foreigners Tribunals and their names are accordingly not be included in the NRC until finalisation of such references. LRCRs will have to keep eligibility status of all such persons pending till decision on their Indian Citizenship is confirmed by the concerned Foreigners Tribunal similar to the procedure for D-voters. As such LRCRs will have to record their decisions as “Hold” with LRCR Remarks recorded as “DFS”. DFS will mean Siblings and other Family Members of Declared Foreigners (DFs).”
The entire May 2, 2018 order may be viewed here:
Then on May 25, 2018, a clarification was issued stating, “With reference to the subject cited above and in continuation with the letter under reference, it is hereby clarified that recording of decision as ‘Hold’ by Local Registrar of Citizen Registration (LRCRs) for any such person, namely , brothers , sisters and other family members of Declared Foreigners (DF) will be taken only after receipt of information from respective SP(Border) that reference has been made of such person to the Foreigners Tribunals.”
The entire May 25, 2018 order may be viewed here:
There is a mechanism in place to address Claims and Objections even if someone’s name does not appear in the final draft, however, given the complications that have already cropped up, many fear that the provision might just be yet another futile bureaucratic exercise making proving citizenship an insurmountable challenge.