'Citizenship Kept In Limbo' : Plea In Gauhati High Court Challenges Withholding Of NRC Rejection Orders As Parties Can't File Appeals

A writ petition under Article 226 of the Constitution has been filed before the Gauhati High Court seeking directions for issuance of rejection orders for inclusion in the National Register of Citizens, Assam (NRC) so that the petitioners can avail their statutory right to appeal against exclusion from the NRC. 

Pertinently, the petitioners have also sought for a stay on the mandatory requirement of Aadhar card for availing any welfare government schemes. This is because they have not been issued any Aadhar card in order to prevent any duplication of their biometrics since the biometric data of the petitioners had been taken during the hearing of their application for inclusion in the NRC. 

The petitioners, who claim to be citizens of India, had submitted their application dated August 27, 2015 along with their family members for inclusion of their names in the NRC. However, the names of none of the family members, five in total, including the petitioners were included in the Complete Draft NRC published on July 30, 2018 even though they had submitted valid documents as prescribed. 

Consequently, they had filed their claim application on December 5, 2018 and had even participated in the hearing. During the hearing, the biometric data of the petitioners had been obtained by the authorities as per the Standard Operating Procedure (SOP) for disposal of Claims and Objections in respect of NRC. In the final NRC published on August 31, 2019, the names of the petitioners were again not included. 

Opining that withholding of the NRC rejection orders violate their fundamental rights guaranteed under the Constitution, the plea averred, 

"Even after passing of two years and five months, the authorities have not yet issued the rejection orders to the petitioners and thus the petitioners have been arbitrarily denied their statutory right to appeal against exclusion from NRC. The citizenship status and the right to have rights of the petitioners are being kept in limbo and under the cloud of doubt for an indefinite period thereby denying their fundamental and legal rights under the Constitution of India and the laws framed thereunder."

The petitioners, in the plea filed through Advocate Oliullah Laskar, underscored that they were unable to avail the appeal process as per Paragraph 8 of the Schedule to the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003 (in short the Citizenship Rules, 2003) read with the Clause 2(1B) of the Foreigners (Tribunal) Order, 1964 and thus their citizenship status and rights are being kept in limbo for an indefinite period of time. 

Averments in the plea 

Indefinite suspension of right to appeal

The petitioners placed reliance on the Supreme Court decision in Assam Public Works v. Union of India wherein the Apex Court had directed that the NRC process should reach its logical conclusion in a time bound manner. It was also the intention of the Supreme Court that the case of the excluded people should also be considered and decided expeditiously. The Apex Court had also held that such cases should be considered by Foreigners Tribunals in appellate proceedings. 

Section 14A was added to the Citizenship Act, 1955 vide the Citizenship (Amendment) Act, 2003 with effect from December 3, 2004. Section 14A of the Citizenship Act, 1955 titled as "Issue of National Identity Cards'' empowered the Central Government to compulsorily register every citizen of India and issue national identity cards to them. 

In this regard, the petitioners submitted further, 

"The section 14A was enacted to enlist the citizens of India not to scrutiny every individual linking residency documents of 50-70 years old. But the same thing is done in preparing Assam NRC in such a stringent manner that there remains no possibility of any wrong inclusion, rather many citizens are left excluded. The excluded persons were assured that they would have opportunity of appeal before Foreigners Tribunals. The State authorities also assured to provide adequate free legal assistance in preferring appeals. The hope of the people like the present petitioners has been shattered by not issuing rejection order and thereby suspending their right to appeal indefinitely."

It was further averred that 200 Additional Foreigners Tribunals notified in September, 2019 primarily for hearing NRC Appeals have not yet been made functional. The petitioners further stated that about one lakh doubtful voters still exist and are unable to cast votes for last 24 years whose cases in Foreigners Tribunals are pending. It was thus averred that the petitioners are under a reasonable apprehension that the voting rights of the persons excluded from NRC may also be withheld by Election Commission of India as their citizenship has been placed under doubt by NRC process. 

 The plea further stated that due to non inclusion of their names in final NRC, the petitioners are unable to get their AADHAR cards and consequently unable to link their AADHAAR number with PAN, and are being denied various services like applying online for driving license, getting online registration in Employment Exchange, etc. Thus, it was underscored that the petitioners' fundamental and legal rights are violated, particularly right to live with human dignity within the meaning of Article 21 of the Constitution of India.

"That the exclusion of the petitioners from the final NRC published on 31-08-2019 has subjected them to be socially stigmatised as being doubtful having question mark upon legitimacy of their existence in this country. They have been, de-facto, treated as second class citizens. The social stigma and humiliation has been taking a great toll on their mental wellbeing causing unbearable mental agony and putting them in an existential crisis. It is pertinent here to mention that after publication of NRC it was reported by the media that a large number of people died by suicide", the plea further avers. 

Withholding of biometric information and Aadhar Cards- inaccessible government welfare schemes 

The petitioners further contended that their biometric data and their Aadhar Cards have been withheld indefinitely by the State Government. It was also stated that Aadhar Cards for even those people whose names have appeared in Final NRC have not been released. 

It was also apprised that the deadline for linking Aadhar Cards with PAN of Income Tax Department now stands on March 31, 2022 failing which PAN will be inactive and that AN is mandatory for several financial transactions including filing of Income Tax Return.

"It has been learnt that the Central Government is making law for linking AADHAAR with name in Electoral Rolls. Several government schemes require AADHAAR, like ration card, Pradhan Mantri Awas Yojana, etc. AADHAAR for the petitioners and about 27 lakh persons are kept withheld by State Government in Assam after collecting biometric data with assistance from UIDAI and NRC authority during claims and objections process of NRC..that it is learnt that the Government of Assam issued instructions that no ration should be given to any beneficiary without AADHAAR enrolment", the petitioners averred further. 

Thus, it was argued that the petitioners are being deprived from availing various government welfare schemes are Aadhar Cards are required to avail the same. It was stated that the petitioners can only be given their Aadhar Cards after their biometrics information taken during NRC process are unlocked, which can be done after the conclusion of the process in respect of them by determination of their citizenship in the appeal proceeding before the Foreigners Tribunals. 

The petitioners thus prayed for a stay on the mandatory requirement of Aadhar Cards for any financial transactions, benefits and entitlements under welfare schemes and other Government purposes in respect of the petitioners till disposal of this petition. 

Case Title: Sanjoy Dey & Another v. Union of India