BAKSA, India — When Afzal Ali stood in line in front of government officials on Saturday morning, he held on to a bunch of papers, and some hope. The papers proved his identity as an Indian citizen, and hope kept him going through months of uncertainty. Minutes later, both were deemed insufficient.
Ali was one of 1.9 million people excluded from the final National Register of Citizens, or NRC, which was released last week in the north-eastern state of Assam, India.
The NRC is aimed at weeding out those who have immigrated there illegally, to produce a definitive list of Indian citizens in Assam, for which 32.9 million people had applied to be included. The burden of proof is on the citizens who have to show that their predecessors were either born in India or legally immigrated there, entering India before March 24, 1971 — days before Bangladesh was declared independent from Pakistan.
“Why is India treating us like outsiders?”— Afzal Ali, one of 1.9 million people excluded from the final National Register of Citizens.
But in many cases, including Ali’s, the documents provided were not proof enough.
“Twenty people from my family have been left off the NRC. We have documents that prove that my grandfather lived in Assam legally in 1934. He died here too. What else do I need to prove my Indian-ness? Where will we go now?,” Ali told Devex in Khandikar village in Baksa. Ali’s family had been excluded from the draft list published last year. But since then, he had dug out more proof from the past — documents that showed his grandfather was included in the 1951 NRC — giving him some optimism about the future.
“Maybe I’ll check online and the result will be different,” he said.
While the Indian government has assured that being excluded from the list does not immediately amount to statelessness, 1.9 million people will now have to challenge their exclusion in special quasi-judicial courts set up for the purpose, called Foreigners Tribunals, within the next four months.
However, this will require hundreds of lawyers who are trained and are able to support people through the byzantine process — something experts say the legal system in Assam is not ready for. Additionally, most people excluded from the list are poor, making it impossible for them to spend on lawyers’ fees and court costs.
Fear of discrimination
Allegations of discrimination can be traced back to the genesis of the NRC — in 1985, after violent anti-immigrant protests, the Assam government agreed to declare anyone who had entered the state after March 24, 1971, as a foreigner. Both Hindus and Muslims had entered Assam through neighboring Bangladesh in the early 1970s. While protests of the 1980s targeted Bengalis as an ethnic minority, the current political scenario in the country further discriminates against Muslims.
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A minister from the ruling Bharatiya Janata Party has called Muslims who have migrated from Bangladesh "infiltrators" and "termites", alleging that they entered India illegally and “are eating our foodgrains that should go to the poor, they are taking away our jobs” — and must be removed through the NRC.
The decades-long process culminated with the release of the final NRC list on Aug. 31, leaving those like Afzal Ali wondering if they had been targeted.
“This is communal. We feel stuck — what if my papers are declared insufficient at the Foreigners Tribunal too? Why is India treating us like outsiders?” Ali asked.
For ensuring that his case is treated fairly, Ali will need to rely on the legal system. Aman Wadud, a Guwahati-based lawyer says without dedicated lawyers, Foreigners Tribunals won’t be able to ensure justice.
“We’re absolutely not prepared for this. Many more lawyer trainings should have already happened — the civil society should have built more capacity in local lawyers,” he said.
In July, Fernand de Varennes, special rapporteur on minority issues, was one of three U.N. experts who wrote to the government of India raising concerns about the discrimination and the process of determining the NRC.
The government responded days before the final list was released assuring that due process would be followed and that it would make arrangements to provide legal aid to the needy people amongst those excluded from the NRC. Though de Varennes is not entirely convinced.
“Even if one case is heard in the Foreigners Tribunals every day, we will need 12,000 lawyers — it’s unprecedented.”— Zamsher Ali, program coordinator, NRC at Citizens for Justice and Peace
“There are concerns that the procedures in place might not be operating well or as well as they should. There are concerns in terms of the qualifications of some of the individuals involved in the various assessments,” de Varennes told Devex.
“In this whole process, it is not clear to me that there was sufficient focus on the human rights of all the individuals,” he said.
After the final list was released, the United Nations warned yet again about the NRC’s potential to cause harm.
The U.N.’s High Commissioner for Refugees Filippo Grandi called for access to legal aid for all, saying if the NRC left a large number of people without a nationality, it would be an enormous blow to global efforts to eradicate statelessness.
The Indian government should “ensure that no one is rendered stateless by this action, including by ensuring adequate access to information, legal aid, and legal recourse in accordance with the highest standards of due process,” he said in a statement.
Lawyers and activists on the ground, too, are concerned about the process going forward.
The state of Assam has set up 200 additional Foreigners Tribunals, in addition to the existing 100, and these are expected to hear cases within the next four months. But what is needed are lawyers to represent those of the 1.9 million people who would want to challenge their exclusion from the NRC.
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“Even if one case is heard in the Foreigners Tribunals every day, we will need 12,000 lawyers — it’s unprecedented. Where will these lawyers come from?,” asked Zamsher Ali, program coordinator for NRC at Citizens for Justice and Peace, a New Delhi based nonprofit.
Citizens for Justice and Peace has trained lawyers and paralegals to understand the intricacies of the law, including how to compile documents and argue cases, but Ali says that is not enough.
The stakes are high at the Foreigners Tribunals, since if the applicant loses and is declared a foreigner, the next step is approaching the apex court in the state of Assam, the High Court.
“The lawyers at Foreigners Tribunals will set the foundation for the case, so it'll be of utmost importance that they are trained well,” Ali said.
The state government has assured that the needy will get legal assistance through the District Legal Services Association. But faith in a government-provided service is low. “It will be interesting to see how many cases fought in the Foreigners Tribunals by government-provided lawyers will win, and how many people will end up being declared foreigners,” Ali said.
Cost of being Indian
Afzal Ali has already started making calculations of what it might cost to not be declared a foreigner. “I have to think of how much I will have to spend for 20 people. That is 20 times the lawyer fees, 20 times travel costs to the Foreigners Tribunals, 20 times expenses for digging out old papers,” he said, peering over the documents he has already accessed.
Ali of CPJ thinks local and national organizations should come together to bridge the gap between demand and supply of lawyers. “Organizations that can help in capacity building will have to work together. This is the time to pool resources,” he said.
“A good lawyer is what it will cost to guarantee that people’s identity and freedom are respected,” Wadud said.
Even though nationality and belongingness are at stake, those like Afzal Ali have more immediate concerns.
“Will I have to sell my house?” he asks.