Conflicting judgments, absence of guidelines, litany of documents: India's citizenship conundrum is a mess

  • Multiple conflicting judgments have only deepened the confusion rather than solving it.

  • It is time the judiciary and the legislative get down to brass tacks and build a guard rail through a set of norms that can act as standard-bearer to protect bona fide citizens from losing their citizenship.

  • Talk about documents and anyone in India can bury you with loads of them starting from the humble birth certificate.

Citizenship conundrum has become a leitmotif of sorts in the country's news cycle as protests, political bickering and Twitter wars over the troika of Citizenship Amendment Act, National Register of Citizens and National Population Register, consume reams of paper and hours on prime time broadcast. While this maintains the buzz on the citizenship debate, it has also deprived the controversy of its most needed ingredient: clarity.

War of documents

Talk about documents and anyone in India can bury you with loads of them starting from the humble birth certificate. For instance, when an individual seeks to open a new bank account, apart from the initial amount he or she intends to deposit, the individual will need a set of documents which will be regarded as "acceptable documents as proof of identity and proof of address" anywhere in the country (except in Jammu and Kashmir, North East and Assam Service Areas.)

While documents like passport, arms licence, Aadhaar among others serve as both proof of identity and address simultaneously, documents like credit card statement (not older than last three months), water bill (not older than last three months), electricity bill (not older than last three months) etc. serve only as proof of address. Similarly, documents like a pensioner card having a photo, freedom fighter card having photo, Kissan passbook having photo etc. serve only as identity proof.

Furnishing these documents may allow an individual to have a bank account open thereby fulfilling the Know Your Customer requirements but that does not necessarily and conclusively prove that the account holder is an Indian citizen.

What happens when a foreigner wishes to open a bank account in India?

He or she will have to furnish copies of the following documents to open the bank account:

• Valid foreign passport
• Valid Indian visa ( it should be a long term visa: valid for more than 182 days)
• Copy of Foreigners Registration Office (FRO) permit
• Overseas address proof
• Indian address proof
• Passport-size photograph
• Copy of PAN card or Form 60
• They also need a letter from the employer or letter of the contract. For business visits, RBI approval may be needed.

Although "valid foreign passport" tops the list to determine the country of origin or the citizenship of the applicant, it is ironic an Indian passport holder may be considered an Indian citizen abroad but may not be considered the same by dint of his or her passport within the country.

While speaking to The New Indian Express, unnamed top government officials in a reported story said that "Aadhaar, voter ID card and passport are not citizenship documents". This came a day after the Ministry of Home Affairs in a tweet from its official handle on 20 December 2019 made it clear that "#Citizenship of India may be proved by giving any document relating to date of birth or place of birth or both."

An individual who got an Indian passport will definitely have the "date of birth or place of birth or both" on it which technically should prove the citizenship status unless the passport was obtained by fraudulent means. This itself is worrisome because either the application for a fresh passport or to renew an existing one invariably entails a police verification.

When the NRC exercise was conducted in Assam, the first requirement was the collection of any one of the following documents issued before midnight of 24 March, 1971 where the name of self or ancestor appears (to prove residence in Assam up to midnight of 24th March, 1971).

(1) 1951 NRC OR
(2) Electoral Roll(s) up to 24th March 1971 (midnight) OR
(3) Land & Tenancy Records OR
(4) Citizenship Certificate OR
(5) Permanent Residential Certificate OR
(6) Refugee Registration Certificate OR
(7) Passport OR
(8) LIC OR
(9) Any Govt. issued License/Certificate OR
(10) Govt. Service/ Employment Certificate OR
(11) Bank/Post Office Accounts OR
(12) Birth Certificate OR
(13) Board/University Educational Certificate OR
(14) Court Records/Processes.

In case, none of the above documents was of the applicant himself/herself but that of an ancestor like father or mother or grandfather or grandmother or great grandfather or great grandmother (and so on) of the applicant, the applicant was asked to submit the following documents to establish relationship with such ancestor, i.e., father or mother or grandfather or grandmother or great grandfather or great grandmother etc. whose name appears in the list above:

(1) Birth Certificate OR
(2) Land document OR
(3) Board/University Certificate OR
(4) Bank/LIC/Post Office records OR
(5) Circle Officer/GP Secretary Certificate in case of married women OR
(6) Electoral Roll OR
(7) Ration Card OR
(8) Any other legally acceptable document

Courts adding to the confusion

The courts have proved to be of little help when it comes to the question of determining citizenship. Multiple conflicting judgments have only deepened the confusion rather than solving it.

 Conflicting judgments, absence of guidelines, litany of documents: Indias citizenship conundrum is a mess

Chief Metropolitan Magistrate's Court, Mumbai. Image courtesy official website of district court

According to LiveLaw, the Additional Chief Metropolitan Magistrate, Esplanade Court, AH Kashikar acquitted Abbas Shaikh and his wife Rabiya Khatoon Shaikh who were arrested by the Mumbai Police on suspicion of being 'Bangladeshi infiltrators'. The court held that an election card or voter ID card is sufficient proof of Indian citizenship as the person concerned got the EPIC number by filling up the Form 6 of Representation of the People Act by declaring himself/herself as an Indian citizen. The court, however, did note that  Aadhaar card, PAN card, driving license or ration card cannot be used as proof of citizenship.

Furthermore, not too long back in December last year, a magistrate court in Mumbai, held both the passport and the voter ID card as sufficient proof of citizenship.

According to The Times of India, adjudicating in a case against Mohamed Mulla and Saiful who were arrested in 2017 on suspicion of being “Bangladeshi infiltrators”, the magistrate court held that the passport authorities verify the nationality and voter cards are issued after a declaration that the holder is a citizen of India.

While the court said that the police failed to prove the documents including passports and voter ID cards submitted by the accused are forged, it made clear that documents such as "ration card, Aadhaar card and other identity cards are not enough to prove nationality".

In both the judgments what stands out is the approach taken by both the courts with respect to the passport. While one court considers the passport as a document "to establish the origin of any person" (not citizenship), another court considers the same document as "sufficient to prove the nationality".

Significantly, just a day before the aforementioned Esplanade Court judgment validating voter ID card as proof of citizenship, a Gauhati High Court division bench held a completely different view.

The bench comprising justices Manojit Bhuyan and Parthivjyoti Saikia adjudicating on Munindra Biswas versus Union of India and 4 Others on 12 February said that an Electoral Photo Identity Card is not a conclusive proof of citizenship. Biswas had approached the high court challenging a 30 July 2019 order by the Foreigners Tribunal which had declared him a "foreigner".

 

Representational image of Voter ID card. Image courtest News18 Bengali

Representational image of Voter ID card. Image courtest News18 Bengali

Apart from the EPIC, the petitioner had also submitted the voter lists of 1997 bearing his name, a registered sale deed of 1964 and a sale deed dated 23 April 1970.

"Sale Deeds are private documents, therefore, they must be proved in accordance with law. In the case of Narbada Devi Gupta Vs. Birendra Kumar Jaiswal reported in (2003) 8 SSC 745, the Supreme Court has reiterated the legal position that marking of documents as exhibits and their proof are two different legal concepts. Mere production and marking of a document as exhibits cannot be held to be due proof of its contents. Its execution has to be proved by admissible evidence i.e., by the evidence of those persons who can vouch safe for the truth of the facts in issue," the high court said in its order.

Biswas also failed to file voter lists prior to 1997 which proves that he has been staying in Assam prior to 25 March 1971, which is the cut-off date as per the Assam Accord. Clause 5.8 of the Assam Accord states: "Foreigners who came to Assam on or after March 25, 1971 shall continue to be detected, deleted and expelled in accordance with law."

Gauhati High Court. Image courtesy News18 Assam North East

Gauhati High Court. Image courtesy News18 Assam North East

The same division bench on the same day dismissed another writ petition WP(C) 7451/2019 by Jabeda Khatun who challenged the 31 May 2019 verdict in the F.T. Case No. 22/BAKSA/2018 by the Foreigners Tribunal "declaring her to be a foreigner of post 1971 stream".

Khatun had submitted 15 documents before the Tribunal and filed her written statement claiming to be a citizen of India by birth. These documents are:

1) NRC details of Jabed Ali (her father);
2) The Voter Lists of 1966;
3) The Voter Lists of 1970;
4) A Land Revenue Paying Receipt;
5) The Voter Lists of 1997;
6) The Voter Lists of 2015;
7) A Land Revenue Paying Receipt;
8) Another Land Revenue Paying Receipt;
9) Another Land Revenue Paying Receipt;
10) Certificate of Gaon Bura certifying that Md. Jabed Ali is a permanent resident of Village No. 2 Dongergaon;
11) Another certificate of Village Gaon Bura certifying that the petitioner being the daughter of Lt. Jabed Ali was married to Rejak Ali;
12) A copy of Ration Card in the name of the petitioner;
13) The Bank Passbook;
14) The PAN Card of the petitioner; and
15) Another bank document of the petitioner

The Tribunal rejected the certificates from the Gaon Buras (village headman) as they "are not entitled to issue certificate supporting the citizenship of a person". The Tribunal also rejected the bank passbook "on the ground that it has not been proved" and most importantly, "the Tribunal held that the petitioner failed to file documents linking herself with her projected parents".

The high court in its judgment upheld the verdict of the Tribunal saying that the "certificates issued by a Village Gaon Bura can never be the proof of citizenship of a person" and that "such certificate can only be used by a married woman to prove that after her marriage, she had shifted to her matrimonial village [Rupjan Begum Vs. Union of India, reported in (2018) 1 SCC 579]."

On 28 February 2017, a Gauhati High Court division bench of justices Ujjal Bhuyan and Rumi Kumari Phukan in the WP(C) No. 2634 of 2016 in the Manowara Bewa alias Manora Bewa vs Union of India and 3 Ors case had held that a certificate from the Gaon Panchayat Secretary "has no statutory sanctity, being beyond the mandate of the 1994 Act and the Rules framed thereunder."

"We have already held that issuance of such certificates is contrary to the mandate of the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003, besides not being in the national interest," the court said.

It further added: "Therefore, if a Gaon Panchayat Secretary issues such a certificate, it would at best be a private document. Being a private document, he will have to take full responsibility as to the contents of the certificate with all its attendant consequences. If a residency certificate issued by such Gaon Panchayat Secretary is disbelieved by a Foreigners Tribunal or by the High Court as in the present case and the certificate holder is declared to be a foreigner, the concerned Gaon Panchayat Secretary would run the risk of issuing such certificate to a person who has been declared to be a foreigner. Such an act may be construed to be an act of harbouring an illegal migrant, which may amount to a gross misconduct exposing himself to departmental action besides attracting penal consequences."

Rajapukhuri Gaon Panchayat Office in Assam. Image courtesy Rajapukhuri Gaon Panchayat Office

Rajapukhuri Gaon Panchayat Office in Assam. Image courtesy Rajapukhuri Gaon Panchayat Office

However, on 5 December 2017, a Supreme Court bench comprising then Chief Justice of India Ranjan Gogoi and Justice RF Nariman set aside the above Gauhati High Court order and allowed the usage of such certificates only to establish legacy linkage between a married woman and her pre-marital family to enrol herself in the Assam NRC subject to proper verification.

"We make it clear that the certificates issued by the GP Secretary/Executive Magistrate will however be acted upon only to establish a linkage between the holder of such certificate and the person(s) from whom legacy is being claimed. The certificate will be put to such limited use only if the contents of the certificate are found to be established on due and proper enquiry and verification," the Supreme Court judgment said limiting the use of such documents to specific purposes.

"The certificate issued by the G.P. Secretary merely acknowledges the shifting of residence of a married woman from one village to another. The said certificate by itself and by no means establishes any claim of citizenship of the holder of the certificate.... The certificate issued by the G.P. Secretary, by no means, is proof of citizenship. Such proof will come only if the link between the claimant and the legacy person (who has to be a citizen) is established. The certificate has to be verified at two stages. The first is the authenticity of the certificate itself; and the second is the authenticity of the contents thereof," the Supreme Court said in the same judgment.

Although the apex court dismissed the Gauhati High Court order on certificates issued by the Gaon Panchayat Secretary/Executive Magistrate, the other observations by the high court however stand.

Referring to one of its earlier judgments, the Gauhati High Court said that "in Md. Babul Islam Vs. Union of India [WP(C)/3547/2016], (it) has already held that PAN Card and bank documents are not proof of citizenship." It also added that "land revenue paying receipts do not prove citizenship of a person" and that the "Tribunal has correctly appreciated the evidences placed before it and we could not find any perversity in the decision of the Tribunal".

Lack of reference document that lists documents as legal proof of citizenship

It is ironic that despite possessing numerous documents, there is hardly any guideline which can conclusively prove the Indian citizenship of an individual. It seems that these documents are perhaps appendage of one another depending upon the situation an individual is in.

"There is no such law which says that these particular documents are proof of citizenship. Had there been legislation, then things would have been clear as to which documents are proof of citizenship and which are not. In India, no law has ever been drafted or passed on documents that can be constituted as proof of citizenship. So in a given case depending on the circumstances and various other factors and also the mentality of the judge is important on what he or she thinks about citizenship. In which court the case is going on is also important. Like in Mumbai there is not a huge problem of illegal infiltration. There may be cases here and there but that's not a threat. In Assam, there is definitely a perception of threat. So the perspective of the Gauhati High Court while adjudicating on a case will be different because documents like ration card, a voter ID card can be illegally obtained. In this context, the judgments of the Gauhati High Court considering the facts and circumstances are quite natural. Similarly, the judgments by the metropolitan courts in Mumbai are equally applicable because the city does not suffer from this threat perception when it comes to illegal Bangladesh nationals," senior Gauhati High Court lawyer Dipak Sarma told Firstpost.

"Due to the lack of proper guidelines, the same document is once hailed as proof of citizenship but rejected in another case by the same court. In Assam, if an individual's name is part of a voter list prior to 1971 it is a proof of citizenship. When cases are filed in the Foreigners' Tribunals, the accused are needed to submit documents prior to 1971. If the accused submits the voter list of 2019 having his or her name at any court in Assam, the court won't accept it. Without standard guidelines, it is even confusing for a lawyer. It is high time now that certain documents are identified as proof of citizenship," the senior lawyer said.

The sanctity of the voter list itself in Assam has compounded the problem even more.

"There is no judgment till date which determines valid documents for citizenship. For instance, Gauhati High Court does not consider documents like passport, voter ID card etc. as proof of citizenship. In the context of Assam, documents like land deed, birth certificate are considered as evidence although the deposition by a witness is critical. Earlier in Assam if anyone could show their name in the voter list then the citizenship issue is resolved. But the problem now is there many illegal immigrants who have got their name included in the voter list. That's why the court only gives some importance if it gets nod from the Foreigners' Tribunal in Assam," said another Gauhati High Court advocate Santanu Borthakur.

The question of citizenship has burgeoned so much that only hope is now from the Supreme Court.

"There are loopholes in the government machinery which has led to this uncertainty and it cannot be the fault of the individual who has obtained a particular document. From the perspective of the Gauhati High Court, each and every name in the voter list can be suspicious. A list needs to published by the government or even by the court mentioning the specific documents. In view of the contradicting judgments by various metropolitan and high courts, it is now time for the apex court to step in and provide with a set of guidelines as to which documents are admissible as proof of citizenship. For Assam, the Supreme Court should remember the cut-off year of 1971 for any such guidelines," Sarma said.

Without proper guidelines, it is evident that resolving the citizenship row is nothing but a Sisyphean endeavour.

"There is indeed a need for guidelines as the citizenship issue has been gradually emerging as a contentious issue. In the absence of such guidelines, such conflicting judgments will continue to come even in the future. When there are conflicting judgments it is the judgment of the higher court that should ideally prevail. Although many cases from the Gauhati High Court has gone to the Supreme Court till date, the apex court has so far only adjudicated on the validity of individual verdicts but has not come up with any guidelines on documents that can be considered as proof of citizenship," said Borthakur.

Judiciary risks erosion of trust

Apart from the confusion, it is also the faith of the people in the judiciary that is shaken when no definite solution emerges to problems that actually deals with an individual's identity.

"There is a possibility that due to political influence or government intervention the judgments are conflicting many a time. What will the common people do in this scenario? The common people always look up to the judiciary for the protection of their rights. If the judiciary itself is not consistent with its views how will the common people retain their trust in the judiciary? Judiciary is called independent because it can put a check on the political motives of the government. These inconsistencies will ultimately erode the faith of the people both in the legislative and judiciary. The government is making this whole controversy so big that the people are engrossed with things like which document proves citizenship. They get diverted from their actual work to scrutinise the performance of the government for which it was actually voted for. When an individual is busy fixing his or her identity crisis, he or she will have no time to check what the government has done for his or her welfare," said Jintu Gohain, assistant professor of Political Science, Royal Global University, Guwahati.

There are so many people in the country who have lived in India since their birth, whose ancestors might have lived here since ages but they can now only be Indian by spirit and not by documents. The absence of a basic norm for determining citizenship has led to a political fiefdom in the country for different parties only to proselytize them for political dividends. It is time the judiciary and the legislative get down to brass tacks and build a guard rail through a set of norms that can act as standard-bearer to protect bona fide citizens from losing their citizenship. Or, should we say wrongly include one!

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Updated Date: Feb 22, 2020 15:07:26 IST