Gorkhas of Assam Laud Dropping of Foreigners' Tribunal Cases, Want D-voter Tag Gone

August 4, 2021, will be remembered as a historic date for the Gorkhas of Assam, members of the community say, as for many it will mean they will be able to walk under the clear blue sky with head held high, and for others it will be the end of a lengthy, cumbersome legal battle. Assam chief minister Himanta Biswa Sarma on Wednesday announced that the state cabinet has decided not to prosecute members of the Gorkha community under the Citizenship Act, 1955, and withdraw all cases against them in the foreigners’ tribunals. 22,000 cases, approximately.

Bharatiya Gorkha Parisangh (BGP), a national social organisation of Gorkhas, welcomed the Assam government’s decision and thanked the chief minister for solving the long-pending problem of the community that cropped up back in 1997.

“The cabinet decision will come as a huge relief for Gorkha families who were prosecuted under the citizenship law. It would also remove the tag of illegal immigrants or foreigners from members of the community who are original inhabitants of Assam and are bonafide Indian citizens. At least 22,000 Gorkhas are marked D-voters arbitrarily in the electoral rolls since 1997 and nearly 2,500 are being heard at various FT courts; meanwhile around 500 cases were disposed of since the NRC process began. Few were given ex parte decisions and declared foreigners, some were jailed in detention camps. With our combined efforts, most of these cases have been resolved, but some are still pending,” said Nanda Kirati Dewan, national secretary, BGP. “The Gorkha community wants that the D-voter tags of Gorkhas should be removed as a mark of implementation of this cabinet decision so that they can exercise their right to vote from the forthcoming bye-election."

Several thousand Gorkhas in Assam were left out of the updated National Register of Citizens (NRC), while many members of the community were marked as ‘doubtful voters’ (D-voters) by the Election Commission for lack of citizenship credentials, effectively stripping them of the right to vote. The NRC exercise was aimed at weeding out undocumented migrants in the state from neighbouring Bangladesh and the final list was published on August 31, 2019. It contained 31 million names out of Assam’s nearly 33 million population.

The Bharatiya Gorkha Parisangh filed an interlocutory application (IA) before the Supreme Court on the NRC after the first draft was made public. The union home ministry too had issued a notification about Gorkha D-voters and foreigners’ tribunals on September 24, 2018, that cited the Foreigners Tribunal Act and Citizenship Act and said Gorkhas shouldn’t be tried in the FTs, said the BGP.

The organisation said Assam’s home department was supposed to file a writ petition before a division bench in the Gauhati High Court to arrive at this amicable solution, instead of an IA being filed at an FT monitoring bench, which was turned down by the HC. As alleged by the BGP, it never happened, and so the Gorkhas of Assam unanimously under the leadership of Bharatiya Gorkha Parisangh decided not to go to the foreigners’ tribunals to prove their citizenship.​

Manju Devi, granddaughter of freedom fighter Chhabilal Upadhyay, along with her two children, has been excluded from the NRC on account of her doubtful-voter status. Another prominent Nepali name, which did not feature in the NRC, is Sahitya Akademi award recipient and writer Durga Khatiwada. He was marked a doubtful voter in the 1990s, but was declared an Indian citizen in 2015 by an FT court in Guwahati. His name was included in the final draft of the NRC but a year later excluded from the additional exclusion draft, informed leaders from the community.

D-voters can apply for inclusion of their names in the updated NRC. However, such a person’s name will only be included in the register after getting clearance from the foreigners’ tribunals and on removal of their name as a D-voter from the electoral rolls.

The Assam government earlier declared Gorkhas living in the tribal belts and blocks in the Bodoland Territorial Region (BTR) a protected class. The decision enabled the Gorkha community to buy, sell and transfer land in the four districts — Kokrajhar, Chirang, Baksa and Udalguri — that make up the BTR. According to the government, over 1.65 lakh Gorkha community members will benefit from the move.

In October 2018, the Union home ministry clarified that members of the Gorkha community who were Indians at the time of commencement of the Constitution, those who are Indian citizens by birth or those who have acquired citizenship by registration or naturalisation, are not ‘foreigners’ as defined by the Foreigners Act, 1946, and Registration of Foreigners Act, 1939, and their cases should not be referred to foreigners’ tribunals.

Citing the 1950 India-Nepal friendship treaty, the MHA clarified that members of the Gorkha community of neighbouring Nepal who entered India by land or air, with or without passport or visa and stayed in India for any length of time, will not be treated as illegal immigrants as long as they have some identity documents issued by Nepal government. They too will not be referred to foreigners’ tribunals, it added.

“Assam Gorkha Sammelan is thankful to the government of Assam to have ended this three-decade-long issue. We have been fighting for it for several years and in 2019 the Guwahati High court gave a decision that Gorkhas are not foreigners in Assam. This is in adherence to that decision. It was in 1991 that TN Seshan introduced the term D-voter. It’s nowhere in the Constitution; one can be either a voter or non-voter but in no parlance a doubtful voter. The Gorkhas of Assam speak Assamese, have assimilated into the culture and tradition of Assam and are Assamese in all spirits,” said RP Sharma, former BJP MP of Assam and prominent leader of the Assam Gorkha Sammelan.

According to an estimate by the BGP, one of the parties to the NRC case in the Supreme Court, more than one lakh names have been left out in the final list from the community’s total 25 lakh population. Nanda Kirati Dewan says Gorkhas were excluded because they were “arbitrarily" tagged as doubtful voters, and a majority of them were not even served notices.

“There are between 20,000 and 22,000 Gorkhas tagged as doubtful voters. If we calculate that an average Gorkha family has more than two children, the total number of those excluded from the NRC comes to more than one lakh," added Dewan.

He said that there are more than 2,000 FT cases pending with 35-40 cases pending in the high court.

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