Matiur Rahman has been waging a legal battle against the inconsistencies that exist in India’s National Register for Citizens (NRC) regime since November 2012. Some of the questions that prompted his writ petition to the Supreme Court of India were: How could there be one standard citizenship law for the rest of India but a different one exclusively for a constituent state? Is Assam a colony of India to be governed by separate laws? Why should the state alone take the burden of immigrants?

Rahman is the President of Assam Sanmilita Mahasangha, which presents itself as a confederation of 90 organisations representing indigenous people in Assam. As things stand, the organisation’s petition is awaiting a hearing before a Constitution Bench of the Supreme Court.

While it may have been a few years already, Mahasangha’s petition has assumed renewed significance in Assam’s current political scenario. The reason is the updating of the NRC in the state over the last four years. An exercise that officially began in February 2015, following a Supreme Court directive, the currently updated NRC has used March 24, 1971, as its cut-off date for detecting illegal immigrants residing in Assam. 

This date, however, differs from the one that applies to the rest of India, which is July 19, 1948. Rahman’s petition has pleaded the apex court to make this date applicable to Assam too by revising the exception pertaining to the state.  

“The NRC, we believe, should be updated by taking this as a reference date and not what is being applied now. The first census of independent India in 1951 and the electoral rolls of the first general elections in 1952 can be used as legacy documents admissible for the purpose. Land papers up to 1951 can also be considered,” says Rahman.

But now, with only a few days left for publishing the NRC on August 31, such a plea has raised questions over the finality of the document. The top court has rejected most of the 51 petitions pertaining to NRC in the last six years. As Rahman’s petition remains to be disposed of in court, it has cast a legal uncertainty over the upcoming NRC. This became evident on August 13 when Chief Justice of India Ranjan Gogoi passed the latest order regarding the ongoing exercise. In its last point, the order made it clear that the upcoming NRC will be “subject to orders as may be passed by the Constitution Bench” concerning the pending petition. 

The dissimilarity in cut-off dates between Assam and the rest of India is the result of Section 6A of the Citizenship Act 1955. The Section was added to the Act through an amendment by the central government following the Assam Accord of 1985.  

The Section outlined that any person from Bangladesh (then East Pakistan) who entered Assam before the midnight of March 24, 1971, and has been a resident in the state ever since would be eligible for Indian citizenship. This, in effect, meant an additional window of more than 20 years from July 19, 1948 — the date applicable for getting citizenship in the rest of the country. 

Santanu Borthakur, an advocate in the Gauhati High Court, says one needs to revisit Assam’s recent history to understand the complex nature of the issue.  

“The amendment was made in accordance with a clause adopted in the Assam Accord of 1985. The Accord was signed to bring an end to the six-year-long agitation in the state against illegal immigrants entering from Bangladesh.  As all the parties — the movement’s leadership, the central and the state governments — agreed upon March 24, 1971, as the cut-off to be applicable in Assam, accordingly, Section 6A was brought in place,” Borthakur explains.

However, the Mahasangha believes that the agreement stands on flimsy legal ground. Senior advocate Kamal Nayan Choudhury, who is representing them in the case, says that they have several points to make in court.

“The prescription of July 19, 1948, as the deadline to grant citizenship automatically to migrants entering India before that is enshrined in Article 6 of the Indian Constitution. Those who entered after that needed to register themselves in a specified manner for acquiring citizenship. Therefore, any change in the criteria can be made only after amending the Constitution. But this was not done before bringing Section 6A in the Citizenship Act 1955,” says Choudhury. “Also, under Article 14, the Constitution guarantees equality before the law to anyone within the territory of India. Hence, in our opinion, the variation in dates between Assam and the rest of India for determining citizenship eligibility is a violation of that principle,” he adds.

But despite their belief in the legal merit, Mahasangha’s plea for a revision of dates hasn’t gone down well with many in the state. As the NRC updating is almost complete, they worry that a retreat to an earlier date will create a serious crisis.

Some point to the logistical challenge that may arise if documents from 1951 and 1952 are to be used for updating the citizens’ register. Harekrishna Deka, former Director General of Police of Assam, argues that the 1951 census and the 1952 electoral rolls are highly incomplete documents.

“This is because even many genuine Indians living at that time did not make it to the lists owing to lack of awareness and other inconveniences. If NRC were to be updated in that way, it would open a Pandora’s box. As much as 50 per cent of Assam’s present population might be left out,” Deka says worryingly.

His concerns are also echoed by Rejaul Karim Sarkar, the president of All Assam Minorities Students’ Union (AAMSU). Sarkar says many people have already faced difficulty with producing pre-1971 documents for the current exercise. “If the NRC is updated again with an earlier date, as demanded by some, it will lead to greater harassment of people,” he adds.

The influential All Assam Students’ Union (AASU), the organisation that led the Assam movement of the ‘80s, opposes the move against the fraught historical backdrop of the time. 

“This date of March 24, 1971, was adopted after much sacrifice and lengthy negotiations among the stakeholders. And now that the NRC is already being updated that way, we better stick to that,” says Lurinjyoti Gogoi, the organisation’s general secretary.

Rejaul Karim Sarkar of the AAMSU agrees too. “The 1971 date was a consensus achieved with difficulty during the Assam movement. And that is why we accept only that as the reference point for an updated NRC. If it is changed because of Mahasangha’s petition, we will resist the move both democratically and legally,” says Sarkar.

Yet, despite so many voices erupting over the petition, clarity could not be obtained in the Supreme Court before the NRC comes out in a few days. 

“We have repeatedly been requesting for an early hearing of our petition before a Constitution Bench. But the court has only kept the matter pending. A decision before August 31 was really necessary,” says Mahasangha’s Matiur Rahman.

The ambiguity surrounding the upcoming NRC has been a cause of concern to others too. Assam Public Works (APW), the organisation whose petition in the Supreme Court led to the updating of the citizens’ register in the state, is equally disappointed with the indecisiveness. 

“There is enough ground for uncertainty in the matter. In the current scenario, the NRC that will come out will be conditional and incomplete. But this could have been avoided by deciding on the petition before publishing the register,” regrets Abhijeet Sharma, president of APW.