VCR Diary, Insight, Jul '19
Look at the NRC exercise from trans persons’ points of view, urges Shivalal Gautam
Rinki, 26, is from Harmati village in Tezpur district of Assam. She is one of the very few trans persons in the state whose name has appeared in the final draft of the National Register of Citizens (NRC) published end of July 2018. But the painful irony is that it is her dead name or birth name that has been recorded in the NRC. She pointedly asks, “What’s the point of being enlisted in a name that I have no connection to? I feel suicidal sometimes. I’m neither here nor there.”
July 31, 2019 will be a crucial date in the NRC updating process in Assam for all those who have not been included so far in this citizenship list. But for trans persons in the state the question of inclusion in the NRC is far more than a nominal figuring of one’s name in the list. Long read alert!
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On May 23, 2019, the Bharatiya Janata Party (BJP) came to power at the Centre for a second consecutive term. In its election manifesto it claimed that the NRC would be updated across the country. The party's campaigning in the Lok Sabha elections in Assam revolved around the issues of indigenous identities and immigration, with the focal points being the NRC and the Citizenship Amendment Bill, 2018. The Bill was later not pushed by the BJP in the face of massive opposition across North-East India, and earlier last month it lapsed when the term of the 16th Lok Sabha ended.
Amid all the noise, the implications of the NRC being updated for the marginalized communities were downplayed. In particular, the concerns of trans communities of Assam were completely left out of the picture by all political parties.
What is the NRC?
The NRC is a list of all citizens of India prepared in 1951 after the first Census of independent India was conducted to record citizens, their houses and holdings. But the process of updating this register was never taken up till 2014-15, when the issue came alive in the state of Assam. This happened after Guwahati-based NGO Assam Public Works filed a public interest litigation in the Supreme Court of India in 2009, and the court directed the Assam state government to supervise the updating process in 2013. Assam for long has battled with the issue of immigration, but especially so during and after the Bangladesh Liberation War of 1971 to compel the Government of India to identify and expel illegal immigrants. In the period 1979-85, the All Assam Students Union (AASU) and the All Assam Gana Sangram Parishad (AAGSP) led a series of protests, popularly known as the Assam Movement. This movement led to the signing of the Assam Accord between AASU, AAGSP and the then ruling Indian National Congress (INC) central government in 1985 to deal with the issue of illegal immigration. Subsequently, in 1985 itself, a new political party, the Asom Gana Parishad (AGP) was formed, and it came to power in Assam. Though the AGP formed two state governments, it was unable to push the updating of NRC, the very rationale of its formation. The INC governments that ruled Assam in different phases till 2016 were unwilling to take up the issue. It was the BJP, when it came to power at the Centre in 2014 and in Assam in 2016, which capitalized on the apex court’s directive of 2013 and made the NRC its political plank. The NRC issue in Assam therefore is a legacy of the Assam Movement.
The updated register is supposed to include the names that appear in the NRC prepared in 1951, or in any of the electoral rolls prepared up to the midnight of March 24, 1971, or in any one of the other admissible legacy documents issued up to the midnight of March 24, 1971 – the idea being to conclusively prove one’s citizenship by proving one’s presence in Assam or any other part of India on or before March 24, 1971. The descendants of these categories of citizens are also to be included in the register provided they are able to prove their lineage (more details later). People who fail to have their names included in the NRC are supposed to be marked as illegal immigrants, put in detention camps or deported.
The first draft of the updated NRC in Assam was released on December 31, 2017 and the final draft on July 30, 2018. But around 40 lakh people who applied for inclusion did not find their names in the NRC (the process of updating the NRC in Assam is application based as compared to enumeration based in the rest of India). Recently another 1.02 lakh people were excluded from the final draft of the NRC. The process of claims and objections is currently on – it is expected that those who applied afresh for the inclusion of their names will know their final status by July 31, 2019. After this date, those who have not applied afresh as yet will have another opportunity to do so, but the final date by which they must do so is not known. There is also uncertainty about the fate of those who do not find their names in the NRC on July 31, 2019 in spite of having filed fresh applications since July 30 last year. Will they get yet another opportunity for inclusion or will they be declared illegal immigrants?
Impact on trans communities
Many will agree that what started out as a political movement to deal with illegal immigration has taken on serious communal undertones (read keeping out Muslim immigrants or disenfranchising Muslim citizens). But what most people still do not know or care about is the impact of the NRC updating exercise on the trans communities of Assam. In 1951, no one thought about the inclusion of trans persons in the NRC, and in 2019 the situation is still the same. The only difference is that now trans community leaders are running pillar to post, requesting the authorities to relax the rules for citizenship for trans persons.
The last Census in 2011 put the trans population (primarily trans women) in the state at 11,374, though the number is likely to be much more. According to the All Assam Transgender Association (AATA), the state has at least 20,000 trans individuals (broadly speaking individuals who identify as ‘trans woman’ or just ‘woman’, ‘trans man’ or just ‘man’, or as ‘third gender’).
Out of these individuals, AATA says that only 2,000 applied for being enlisted in the NRC. We will come to the reasons why such a small number of people applied. But according to AATA, in the first draft of the updated NRC released on December 31, 2017, there was not a single trans person included in the register in their desired gender identity, while a few were included but in the gender assigned to them at birth.
Notably, many of the trans applicants had voter identity cards (with their gender mentioned as ‘others’). According to the Chief Electoral Officer of Assam, as quoted in media reports, the latest electoral records have 503 voters listed as ‘others’ in the state. It remains a mystery why even trans individuals possessing valid voter identity cards were not included in the draft NRC as trans persons. The reason could lie in a mismatch in lineage documents. At the same time, it could also be that some trans individuals may have been marked as D voters (doubtful voters), that is, individuals not allowed to vote because of improper citizenship credentials and therefore not included in the NRC. The identification of D voters is done by the Foreigners Tribunals set up under the Foreigners Tribunal Order 1964.
However, a Guwahati-based judge working in one of the many Foreigners Tribunals in Assam seeking anonymity told this author: "As of now we haven't received any case of a trans person being marked as a D voter, which bars a person from getting their name listed in the NRC till they prove their citizenship." Of course, the fact remains that there are many Foreigners Tribunals in Assam, and the experience of one judge may not be enough to go by.
The publishing of the draft NRC prompted trans community leaders to contact the NRC officials. AATA Founder Swati Bidhan Baruah, in an interview to The Wiresaid, "As the discrepancies began to come to light, we contacted the authorized persons [Registrar General of India and the NRC State Coordinator], and they assured us that by the date of the publication of the final draft of the NRC, they would be able to evolve some format so that we wouldn’t be left out of the final NRC. They kept assuring us, but nothing happened!" Fearing large scale non-inclusion of trans persons in the final draft of the NRC, a 113-page writ petition was filed by advocate Anitha Shenoy on behalf of AATA in the Supreme Court on July 22, 2018 – just a week before the final draft was supposed to be released. A bench consisting of Justices Ranjan Gogoi and Rohinton Nariman took up the petition, but Justice Ranjan Gogoi asked the advocate why the association had filed the petition so late: “You missed the bus. We cannot re-open the entire exercise now.” However, the court said it did not want to dismiss the plea and kept it pending. About the apex court’s decision, Swati Bidhan Baruah says, "It took us time to collect information from the community in 33 districts and finding an advocate to represent our case in the highest court.” She adds that AATA filed the petition at the last moment only because of verbal assurances from NRC State Coordinator Prateek Hajela. In January 2018, just after the release of the first draft of the NRC, Prateek Haleja told BBC Hindi that there were problems with regard to legacy and lineage documents of trans community members. He said that a solution would be found so that trans individuals did not face exclusion from the NRC final draft. All these turned out to be false promises, complain dejected trans community leaders.
Like most other stakeholders, what the Supreme Court judges failed to appreciate was that ascertaining citizenship through patriarchal lineage was hardly inclusive of people marginalized on myriad grounds of gender, sexuality, race, religion, caste, socio-economic status and interplay between these factors. To apply and get enlisted in the NRC, a person has to have any one of the government-approved legacy documents, which prove that they were present in Assam or any other part of India on or before the midnight of March 24, 1971.
Legacy documents that are admissible include evidence that shows inclusion of a person’s name in the 1951 NRC or in any of the electoral rolls prepared up to the midnight of March 24, 1971. One’s birth certificate, board or university certificate, permanent residential certificate, land / tenancy records, refugee registration certificate, citizenship certificate, court records / processes, bank / post office account, any government service / employment certificate, any government issued license / certificate, Life Insurance Corporation of India (LIC) policy, passport, or any other legally acceptable document can also serve as a legacy document.
If a person’s date of birth is after the cut-off date, they must produce documents to show their lineage or linkage with the legacy documents of their parents or other ancestors, whose own citizenship should be beyond doubt. Lineage documents include one’s birth certificate, land document, board / university certificate, bank / LIC / post office records, voter identity card, ration card, a certificate from a Circle Officer or Gram Panchayat Secretary (in case of married women), or any other legally acceptable document that proves one’s lineage.
Further, a person must also pass the ‘family tree’ test introduced to check the veracity of citizenship claims made through the legacy and lineage documents. Applicants for enlistment in the NRC have to submit a manual family tree that NRC officials crosscheck on the basis of computerized records. If there is a mismatch anywhere on the family tree between the manual and computerized data, an applicant has to go for verification checks and hearings, and if they fail to do so, they may be in danger of losing citizenship.
One reason why hardly any of the 2,000 trans applicants made it to the first NRC draft (in their desired gender identity) could be complications related to the family tree criterion. Many trans persons in Assam face extreme family violence as they grow up and are either evicted by their families or leave home on their own accord, often around adolescence. Some of them migrate within the state or to other parts of India. Chances are their families may not even mention them as their children in official records because of deep-seated stigma around gender non-conformity, or they may mention the gender assigned to their children at birth.
Moreover, since the Supreme Court’s April 2014 NALSA verdict gave every Indian citizen the right to self-identify their gender, many trans persons have undergone legal gender identity (and name) change, which may not match their gender and name recorded in other documents. Then again, some trans women who are part of Hijra gharanas, prefer to mention their guru’s name as their father. But the NRC updating exercise is not equipped to recognize non-normative family structures. In such situations, the family tree criterion may act as a major barrier to inclusion in the NRC for trans persons.
Low number of trans applicants
Leave aside the family tree criterion. For trans individuals who have long been separated from their families and survived with little education, livelihood opportunities or social capital, gaining access to any legacy or lineage document itself can be a major challenge. Ashish Kumar Dey, Secretary of Gharoa, an NGO working on HIV prevention in central Assam, was quoted in a Times of India news report: “They need the same legacy and lineage documents as other people, like their birth certificate or ancestry documents. How will they procure these documents?” Indeed, and without such documents, how could they have applied for enlistment in the NRC in the first place?
Ashish Kumar Dey added, “It’s ironic that most of the trans women facing exclusion from the NRC were born in Assam. Some of them migrated from Lower Assam, especially Cachar. I can vouch that the majority are from this state’s soil. We had talks with officials on how we can verify their legacy or lineage since they’re given one name when they are born but usually adopt a new name once they step outside their home to join the [trans] community. They may have a legally verifiable identity with all documents when they’re at home but they abandon such validation when they leave home. If a system isn’t worked out to resolve this issue, a majority of trans women will be excluded from the NRC.”
According to AATA as well, a number of Hijra individuals could not even apply for enlistment because they had no documents to establish their legacy or lineage. The few who did apply, found that they had not been included at all or included in the name and gender assigned to them at birth.
There was confusion in the filling up of the application forms as well. The NRC application form did have three gender options – ‘male’, ‘female’ and ‘others’. Many Hijras mentioned ‘others’ as their gender. But their birth certificates mentioned their gender as ‘male’. Trans individuals who had undergone gender transition surgery and changed their name and gender in identity documents (like the voter identity card, Aadhaar card or bank documents) were confused about which gender to select in the application form. For both sets of applicants, the application form lacked clear instructions on what documents to submit in support of their trans identities. This probably dissuaded many from completing the application process.
Another factor behind the low number of trans applicants could be the fact that many trans women in Assam (as in other parts of the country) are often on the move for reasons of livelihood. The application process may have been not only intimidating but also time consuming for many, and therefore not worth pursuing.
Experiences of trans men
A trans man from upper Assam who wants to remain anonymous recounts his experience: "Well, when the NRC process started in Assam, I was already into the process of transition and was trying to get my name and gender changed in my documents. I asked my dad what should be done about my name and gender in the NRC application as I had all my documents in my previous name and gender. He said we should let it be like this, we’d see what could be done later since it was first important to get my name into the NRC. So he filled up the form using my previous name and gender, and my name came up in the NRC final draft.
“Subsequently, I got my name and gender changed legally through an affidavit, and I changed my name in the PAN card as well. I also got my name and gender changed in the voter list through an online application, and I voted in the recent Lok Shaba elections with my new identity, though I haven't got the new voter identity card yet.
“In our place people, including government officials, aren’t fully aware about trans issues, and don't have proper knowledge about the gender spectrum. So, my dad prefers to do all my paperwork online. But we haven't found anything yet on how to get my name and gender changed in the NRC. I have a distant brother-in-law who’s engaged in the NRC process, but even he’s been unable to give any intel about how to change one’s name and gender in the NRC list. So I have to say I’m disappointed. The government needs to look into the matter and NRC officials must compulsorily be made aware of trans people’s issues."
Purab Brahma who is from Kokrajhar and identifies as a trans man says, "My experience about the NRC was mostly scary. Though I knew my name would be there but what about the inclusion of my new name and gender? I’m afraid if I’ll ever be able to change them in the NRC records. Trans persons are so often kicked out or disowned [at a young age], which makes it difficult for them to establish links with their families [later in life]. Mine was okay only because I didn't have to make endless visits to government offices – my identity was crosschecked through photographs."
Contradiction between NRC process and NALSA verdict
The NRC updating process started in 2015, after the Supreme Court’s verdict on transgender rights in April 2014 (National Legal Services Authority Vs. Union of India and Others). In this verdict, the court directed the government to recognize the gender identity of trans persons and ensure that they were given relevant social security support. The court also gave all Indian citizens the right to self determination of one’s gender. It is ironic that the Supreme Court, while supervising the NRC updating process, has not weighed the challenges that trans persons might face in acquiring and producing legacy or lineage documentation, and has not considered any variation for trans persons in the norms for establishing one’s credentials.
In Assam, AATA filed a public interest litigation in Guwahati High Court against the state government in 2017 for not taking measures to form a transgender welfare board. Even after the state government constituted a core committee on the directions of the court, there was little progress in drafting a transgender welfare policy. Sanjib Chakraborty, who works with the National AIDS Control Organisation in Dispur, and was included in the committee as an ‘expert’, said the committee met only three times in the last few years. He said, “The expertise and recommendations collated in the meetings were sent to all the departments for their suggestions. But before anything could happen, the Director of the Department of Social Welfare got transferred.” He added that the NRC issue was not discussed in any of the meetings conducted with the experts and government officials.
It must also be noted that the NRC updating process was demanded and brought into effect after the BJP win in Assam. The party, in its recent Lok Sabha elections manifesto, also claimed that it would replicate the NRC process all over India. It is the same party which has now revived the problematic Transgender Persons (Protection of Rights) Bill, 2018 in the Parliament. It is ironic that the party made claims of working for the empowerment of trans communities in its election manifesto without taking into consideration the exclusion trans people were already facing because of the NRC updating process. Visit this page for more details on the Varta Community Reporters Training and Citizen Journalism Programme.
Which way home?
A reliable source working on the NRC updating process in Guwahati since the last few months says, "I receive 30-40 cases per day at my desk, but till now I haven’t received a single case of a trans person contesting their exclusion from the final draft of the NRC list". No surprises in there, given that the grounds for contesting the exclusion are so uncertain for trans persons. But then what about the 2,000 trans persons who applied for inclusion and were left out? There has been no government response on how they will deal with these exclusions, and what the fate of the individuals excluded will be.
Some of the NRC officials inform that they are unable to include any names without legal documents as approved by the Supreme Court. They further add that trans individuals whose names have not appeared in the final draft and who have not applied afresh so far will be able to do so after July 31, 2019. But the question remains, without any relaxation on producing legacy and lineage documents, what will be the use of applying afresh?
It is shameful that there are hardly any voices of protest from other parts of the country against the implications and impact of the NRC process in Assam. Perhaps when the BJP fulfills its ‘promise’ of implementing the process across India that more voices will come up. Till then the trans communities in Assam seem to be waging a lonely and uphill battle for citizenship – not just in terms of inclusion of names but also acknowledgement of gender identities.
On July 23, 2019, the Supreme Court extended the period for completing the process of claims and objections to inclusions and exclusions of names in the NRC by another month. So the fresh deadline for publishing the updated NRC would now be August 31, 2019 – Editor.
Main collage credit: Pawan Dhall, Shivalal Gautam