[dropcap]C[/dropcap]itizenship is conferred by the Constitution and it is the nexus between the individual and the State, defining civil and political rights and liabilities of individuals, the most important of which are the Fundamental rights and the right to vote and participate in all democratic process. Most importantly, it gives unrestricted rights of residence in the country which cannot be taken away under any circumstance. Given the history of partition in 1947, citizenship has been a contested issue for those who migrated from undivided India to Independent India, especially for the minority community.
There is an assumption that Hindus are in any case citizens of India (not helped by the political discourse in present times), whereas a Muslim would have to establish citizenship if her ancestors migrated from what was Pakistan in 1947. This complex legacy of colonialism was further complicated in 1971 insofar as Assam is concerned by the Bangladesh liberation war, leading to a wave of immigration from Bangladesh to India.
These developments have led to several amendments to the Citizenship Act 1955, some of which continue to be contested in courts since they are capable of denying citizenship to those who are citizens.
Political turbulence in Assam
Assam has been at the forefront of the political dialogue on immigration given its shared boundary with Bangladesh which due to poor fencing led to free flow of immigrants in the State. The exercise of creating a National Register of Citizens (NRC) for the State of Assam is completely unique, since no other State has provision for the preparation of a State NRC. December 31, 2017 may have marked a significant day in Assam’s history with the release of the first draft of the National Register for Citizens (NRC) for the State of Assam and access has been granted to the general population of Assam to verify their names.
The Registrar General of India in charge of the preparation of NRC has promised that any objections to the lists may be made after the release of all draft lists (3 in number possibly) and that sufficient time will be provided to aggrieved citizens to make representations whose name does not figure in the lists. While one must appreciate any progress made by the administration, the road leading to the publishing of the draft NRC has been arduous and long, being inextricably tied with the history and politics of Assam. The sentiments of the local population regarding the serious issue of illegal immigration have often resulted in political actions and judicial decisions having wide ramifications for the rest of India as well.
The State of Assam has battled immigration since the latter half of the 20th century, with the earliest recorded accounts during the British colonial period and continuing even today. The faultlines in society run deep with an undercurrent of resentment and suspicion prevailing and even spawning an entire political movement which to this day feeds on the fears of the citizens. While it is only in the early 20th century that the word “Assam” came to be recognised as referring to the territory now comprised in Assam (which has also undergone changes till 1947) — yet the meaning of the term “Assamese” needs deeper understanding.
The word “Assam” has been derived from Ahom, an ethic group known to have ruled the area for close to 400 years till the advent of the British colonisers. After 1947, the territory of Assam was delineated (according to the entry in Schedule I of the Constitution). It came to be finally reorganised by the North East Reorganisations Act 1971.
Aftermath of Partition
Following the partition of India and Pakistan (West and East Pakistan), mass influx of immigrants from East Pakistan took place to the State. The aftermath of Partition saw communal disturbances in the State and there was movement of immigrants across borders. The first national census exercise was undertaken during 1951 in independent India, where a National Register for Citizens (NRC) was prepared for the State of Assam.
This was the very first register of citizens prepared by the Union of India and this list recorded the details of all persons inhabiting the State of Assam at the time. This would mark an important event not only in the history of the State but also in the field of citizenship law of India. However, it is claimed that this list is not available in the public domain.
Political history of the Assam Accord
The next wave of immigration to the State of Assam was the Bangladesh Liberation War which broke out on March 24, 1971. A considerable number of people, with estimates pegged around a million, crossed over from East Pakistan into Assam, seeking shelter from the persecution and violence. After the liberation of Bangladesh, most of the immigrants did not return back and ended up settling in Assam.
These developments did not go unnoticed. The student movement in Assam, spearheaded by the All Assam Students’ Union (AASU), rose up in arms, adopting the issue of the significant numbers of undocumented immigrants settled in the State. The match was finally struck when during a re-election from a constituency of a deceased leader, it was noticed that electoral rolls contained disproportionately high number of undocumented immigrants, a trend which had been catching on for a number of years.
In the years after 1979, this burgeoning student movement became a full-fledged popular uprising embracing all sections of society. A period marked by turmoil, violence and agitation continued for more than five years, peaking in the 1983 Nellie massacre, in which almost 3,000 people, mostly Bengali Muslims, were killed. Following that, as a last resort, talks were initiated between the Government and the protestors. The AASU finally reached a landmark agreement after the conclusion of tripartite talks with the Union of India and the State of Assam in the year 1985, called the “Assam Accord”.
The provisions of the Assam Accord were comprehensive and in addition to the Foreigners issue, the Accord also included further safeguard of the cultural and linguistic diversity of the Assamese people, border fencing, etc.
Amendments to Citizenship Act
In 2009, the Parliament, in the spirit of the Accord, amended the Citizenship Act 1955 by the inserting Section 6A which provided for three routes for gaining citizenship for persons in Assam (as had been specified in the Assam Accord). Citizenship under Section 6A would be granted to the persons who could prove to the registering authorities:
(a) That the person or their ancestors’ name appeared on the original NRC of 1951.
(b) That the person or their ancestors’ name appeared on any of the electoral rolls in elections held between 1952 and 1966.
(c) That the person or their ancestors’ citizenship status was determined by the Foreigners’ Tribunal constituted under the Foreigners’ Act and Order where the foreigner came into Assam between 1966 and March 24, 1971.
This was a significant amendment since under the unamended Citizenship Act, a person could only be a citizen of India by registration if he or she fulfilled the criteria under Section 5 namely:
(a) a person of Indian origin who are ordinarily resident in India for seven years before making an application for registration;
(b) a person of Indian origin who is ordinarily resident in any country or place outside undivided India;
(c) a person who is married to a citizen of India and is ordinarily resident in India for seven years before making an application for registration;
(d) minor children of persons who are citizens of India;
(e) a person of full age and capacity whose parents are registered as citizens of India under clause (a) of this sub-section or sub-section (1) of section 6;
(f) a person of full age and capacity who, or either of his parents, was earlier citizen of independent India, and has been residing in India for one year immediately before making an application for registration;
(g) a person of full age and capacity who has been registered as an overseas citizen of India for five years, and who has been residing in India for one year before making an application for registration.
The constitutionality of Section 6A of the Citizenship Act 1955 was challenged in 2012 by way of a writ petition under Article 32 in the Supreme Court. The matter is currently pending before a Constitution Bench of five judges. It is interesting to note that in the Supreme Court, a batch of petitions came to be filed in 2009. The common prayers in these petitions are to the effect that the cut-off date be fixed at 1951 instead of 1971. The effect of fixing the cut-off date at 1951 would not only run counter to the Assam Accord but also deny citizenship to persons who have immigrated to India before the 1971 Liberation War but after 1951.
Before the institution of these petitions in the Supreme Court, at the same time, the Supreme Court in the Sarbananda Sonowal judgment invalidated the Illegal Migrants (Determination by Tribunals) Act 1983 (“IMDT Act”) which had created judicial fora for determining who is an “illegal migrant” on the ground that it placed the burden of proof upon the State to prove the charges against a person accused of being an illegal immigrant (or foreigner). The Supreme Court also struck down the Foreigners (Tribunals for Assam) Order 2006 with a similar provision for the burden of proof in the second Sarbananda Sonowal judgment in 2007. The effect of these two judgments was that the burden of proving that a person was not an illegal immigrant fell on the immigrant.
The voices for a re-preparation of the NRC gained volume over time, and consequently in 2008, the then Chief Minister for Assam, Tarun Gogoi, sent a letter to the Prime Minister of India, Manmohan Singh, calling for preparation of a fresh NRC for the State of Assam. The Citizenship (Registration of Citizens and Issue of national Identity Cards) Rules 2003 (“Citizenship Rules 2003”) which had been enacted for preparation of an NRC for India came to be amended in 2009 with the insertion of special provisions Rule 4A and Schedule for the exercise of preparation of NRC in the State of Assam. The relevant provisions of Rule 4A of the Citizenship Rules 2003 are:
“(2) The Central Government shall, for the purpose, of the National Register of Indian Citizens in the State of Assam, cause to carry out throughout the State of Assam for preparation of the National Register of Indian Citizens in the State of Assam by inviting applications from all the residents, for collection of specified particulars relating to each family and individual, residing in a local area in the State including the citizenship status based on the National Register of Citizens 1951, and the electoral rolls up to the midnight of the 24th day of March, 197l
(4) The manner of preparation of the National Register of Indian Citizens in the State of Assam shall be such as specified in the Schedule appended to these rules.”
The Schedule to the Citizenship Rules 2003 constituted the Local Registrar of Citizen Registration (“LRCR”) for receipt, processing and verification of applications for inclusion in the NRC for the State of Assam and to prepare a consolidated list accordingly. Regarding scrutiny of applications, Para 3 of the Schedule enumerated the manner in which such exercise may be done. In particular, Para 3 (3) laid down that the LRCR shall enrol persons in the NRC who are citizens and “original inhabitants” of Assam, provided they were able to prove the same to the reasonable satisfaction of the appropriate authorities. Therefore, persons qualifying the twin criteria, i.e. deemed to be “original inhabitants” of Assam and citizens of India would be eligible for being included in the NRC.
However, neither there is any definition of the word “original inhabitant”, nor to which sections of the population it refers to. Moreover, the provision appears superfluous, since to find a place on the NRC, one had to prove that one was a citizen in any case.
A group of petitions were recently filed by persons claiming to be “original inhabitants” of Assam challenging the provisions of Paragraph 3 (3) of the Schedule to Rule 4A of the Citizenship Rules 2003. Who could be an “original inhabitant” of Assam is a question that provides no easy answers. This was precisely the contention raised by the Petitioners.
Who does the word ‘Assamese’ refer to?
The history of Assam shows that different communities have coexisted in the State cutting across barriers of race, caste, religious and tribes. Attempts at defining who is an “Assamese” have never succeeded and has not been met with any consensus. Various groups, including tribal groups, have dissociated themselves from the “Assamese” tag and the associated homogenous cultural identity. Broadly stated, persons inhabiting the territory of Assam are “Assamese”, but who might be an “original inhabitant” is a question whose answer remains elusive and requires academic insight into the history of the State.
The writ petitioners contended that ambiguity in the definition of “original inhabitant” of Assam, coupled with the wide discretion given to authorities to confer such a label without any prescribed procedure, would give the authorities to pick and choose persons who are “original inhabitants” of Assam. Moreover, the Constitution provided no guidance on the issue as no such category existed anyway. Many apprehend that the sole purpose was to create a favoured class of citizens who would be entitled to the benefits of affirmative action later.
The Supreme Court after hearing extensive arguments advanced by counsel for the parties, held that the purpose of the exercise of the creation of the NRC in the State of Assam was not the determination of which person is an “original inhabitant”, but the sole test for inclusion in the NRC is that of citizenship under the Constitution of India and the Citizenship Act 1955.
On the very same day, the Supreme Court also pronounced its judgment in a related petition regarding “Link Certificates” used for the purpose of verification of claimants for being included in the NRC. Among the 14 documents that were prescribed by the Government to be produced by persons applying for enrolment in the NRC, included a certificate issued by the Gram Panchayat Secretary, being a supplementary document called “Link Certificate”. The certificate was provided exclusively to married women whose ancestors belonged to Assam and had shifted out of their natal home to her husband’s home and therefore were not in a position to establish that their names were on the electoral rolls of their place of origin. The Link Certificate showed details of the ancestry of the woman and the village/area in Assam which she was born in.
The Guwahati High Court had ruled that the Link Certificate was not a valid document and could not be relied on for verification purposes by the appropriate authorities. On appeal to the Supreme Court by way of special leave to appeal, the apex court was tasked with determining the validity of the Link Certificate. In its reasoned judgment, the Supreme Court held that the Link Certificate did not by itself establish the citizenship status of any woman, but that such a woman would have to produce the prescribed primary documents to prove her citizenship to the satisfaction of the authorities. The Certificate could, however, be used to establish ancestry and hence citizenship. This judgment proved beneficial for more than 33,000 women identified as married and who had moved out of their original abode.
Assam has seen its fair share of communal disturbances over the years. The thorny issue of the NRC rakes up deep-seated communal issues. The petitions in the Supreme Court contain averments which make clear in no uncertain terms which community is perceived as the illegal immigrants. This false association has been capitalised on by all political parties — with either letting the issue fester showing a lackadaisical attitude, or polarise the local population by creating a common enemy. Fundamentalist forces continue to make narrow political gains and perpetuate the poison of xenophobia over generations of Assamese people.
Constitutional questions over citizenship
Like the mythological creature Hydra, the menace of immigration keeps growing new heads over time presenting further problems to the administration. The war is far from over. Questions of Constitutional interpretation, especially regarding the challenge to Section 6A of the Citizenship Act and the challenge to the cut-off date of March 24, 1971 still remains to be adjudicated. Justice Rohinton Nariman in a judgment dated December 17, 2014 had formulated the following questions of law now referred to the Constitutional Bench for adjudication:
(i) Whether Articles 10 and 11 of the Constitution of India permit the enactment of Section 6A of the Citizenship Act in as much as Section 6A, in prescribing a cut-off date different from the cut-off date prescribed in Article 6, can do so without a “variation” of Article 6 itself; regard, in particular, being had to the phraseology of Article 4 (2) read with Article 368 (1)?
(ii) Whether Section 6A violates Articles 325 and 326 of the Constitution of India in that it has diluted the political rights of the citizens of the State of Assam?
(iii) What is the scope of the fundamental right contained in Article 29(1)? Is the fundamental right absolute in its terms? In particular, what is the meaning of the expression “culture” and the expression “conserve”? Whether Section 6A violates Article 29(1)?
(iv) Whether Section 6A violates Article 355? What is the true interpretation of Article 355 of the Constitution? Would an influx of illegal migrants into a State of India constitute “external aggression” and/or “internal disturbance”? Does the expression “State” occurring in this Article refer only to a territorial region or does it also include the people living in the State, which would include their culture and identity?
(v) Whether Section 6A violates Article 14 in that, it singles out Assam from other border States (which comprise a distinct class) and discriminates against it. Also whether there is no rational basis for having a separate cut-off date for regularizing illegal migrants who enter Assam as opposed to the rest of the country; and
(vi) Whether Section 6A violates Article 21 in that the lives and personal liberty of the citizens of Assam have been affected adversely by the massive influx of illegal migrants from Bangladesh?
(vii) Whether delay is a factor that can be taken into account in moulding relief under a petition filed under Article 32 of the Constitution?
(viii) Whether, after a large number of migrants from East Pakistan have enjoyed rights as Citizens of India for over 40 years, any relief can be given in the petitions filed in the present cases?
(ix) Whether section 6A violates the basic premise of the Constitution and the Citizenship Act in that it permits Citizens who have allegedly not lost their Citizenship of East Pakistan to become deemed Citizens of India, thereby conferring dual Citizenship to such persons?
(x) Whether section 6A violates the fundamental basis of section 5 (1) proviso and section 5 (2) of the Citizenship Act (as it stood in 1985) in that it permits a class of migrants to become deemed Citizens of India without any reciprocity from Bangladesh and without taking the oath of allegiance to the Indian Constitution?
(xi) Whether the Immigrants (Expulsion from Assam) Act, 1950 being a special enactment qua immigrants into Assam, alone can apply to migrants from East Pakistan/Bangladesh to the exclusion of the general Foreigners Act and the Foreigners (Tribunals) Order, 1964 made thereunder?
(xii) Whether Section 6A violates the Rule of Law in that it gives way to political expediency and not to Government according to law?
(xiii) Whether Section 6A violates fundamental rights in that no mechanism is provided to determine which persons are ordinarily resident in Assam since the dates of their entry into Assam, thus granting deemed citizenship to such persons arbitrarily?
No easy answers
It is obvious that any answer to these questions, one way or the other, will have very serious repercussions for the residents of the State causing them lose their citizenship acquired via due process of law. This, in all likelihood, could also result in a human tragedy of unimaginable proportions.
The NRC process is not yet complete as the administration will have to handle all claims and complaints of persons whose names do not figure in the NRC. And while India has made considerable progress in the fencing of the border between India and Bangladesh running through Assam, it remains unfinished and illegal immigration still remains a reality. One hopes that the hiccups are resolved and the administration does not deprive rightful Indian citizens from being inducted into the NRC in Assam based only on communal considerations. The political climate is charged up now, especially with the filing of several FIRs by the Guwahati Police against Chief Minister of West Bengal Mamata Banerjee for her statement.
The ground situation after the draft NRC was published on December 31, 2017 appears uncertain with many persons not finding the names of all their family members on the list. The anxiety is palpable, especially the Bengali and Muslim population, for whom legitimate claims to citizenship stand on the line. There is already a deep feeling of unease with reports of Members of Parliament belonging to All India United Democratic Fund (“AIUDF”) not being included in the first draft of the NRC. The Government of Assam had in anticipation of agitation and violence deployed armed forces on the date of the release of the first draft. Fortunately till the date of writing this has not happened. But any fears must be allayed by the Government of India by ensuring a speedy completion of the exercise and to ensure that Indian citizens having legitimate stake in being included in the NRC. Till such time as they see their names on the list, the applicants await the results with bated breath and high hopes.
[Editor’s note: This article was originally published on May 25, 2018 and has been republished on August 1, 2018.]