While we have discussed the manner in which the “Citizenship (Amendment) Bill, 2019′ violates Article 14 of the Constitution of India, this article focuses on the implications for the State of Assam and explains the historical process which led to the Assam Accord as well as how the proposed amendments play foul upon the undertakings given in the Assam Accord. While the 2019 Bill is sure to be challenged for the religious discrimination that it institutionalises, it is worth recalling that the provision of Section 6A of the Citizenship Act, 1955, among other questions, is still pending before a yet to be constituted Constitution Bench of the Supreme Court of India. Thirteen questions, including constitutional validity of Section 6A and 1971 cut off date for Assam, were referred to a larger bench on 17.12.2014 in W.P.(C) No. 562 of 2012 titled “Assam Sanmalita Mahasangha Vs. Union of India & Ors.”
“We are citizens of the world. The tragedy of our times is that we do not know this.”
THE passing of the Citizenship (Amendment) Bill, 2019 by the Lok Sabha, amid serious objections and protests regarding the same, especially in the north-eastern states of the country, is the latest example of the doublespeak of the ruling government. While national and state leaders of the Bhartiya Janata Party, have been promising the country to “throw out” illegal migrants from the country, with the BJP national president even terming such persons as “termites, eating the country”, the government also intends to legitimise millions of such illegal migrants belonging to religious minorities in the neighbouring nations. The proposed amendment to the Citizenship Act, 1955 has serious ramifications for Assam, as the issue of illegal migration and citizenship have been the burning topics for the State of Assam and the neighbouring north-eastern states since the creation of Bangladesh in 1971 and have been the cause of severe distress and violence. Apart from being in violation of Article 14 of the Constitution of India, the proposed amendment also plays foul on the undertakings in Assam Accord of 1985.
The 2019 Bill, inter alia, provides that any person belonging to the Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh and Pakistan shall not be treated as illegal migrants for the purposes of Citizenship Act, 1955, thereby extending an opportunity for grant of citizenship to select minority communities of select neighbouring nations while relaxing the criteria for naturalisation, which was earlier the requirement of residence in India 12 months preceding the date of application and for 11 of the preceding 14 years, by reducing the requirement of 11 years to 6 years. In light of the recently conducted NRC in Assam, which by far has been an embarrassment for the BJP, it is also unclear how the amendments would be applicable to those people who have been excluded from the final NRC in Assam and are belonging to the aforesaid communities.
Religion Based Classification & Inroads with Article 14
Despite the subtlety with which the issues in this Bill have been veiled, they are extremely evident. Article 14 of the Indian Constitution guarantees the right to equality before the law and equal protection of the laws within India, to any person, not just the citizens of the country. The interpretation of equality as enshrined in the Constitution has been consistently interpreted by the Apex Court as a protection against arbitrariness and in order to pass the test of permissible classification, any legislative Act treating one class of persons different from the others must be based on an intelligible differentia which makes a clear distinction between persons put in the category and persons not put in the category and such intelligible differentia should have a rational relation to the object sought to be achieved by the Act. The proposed amendment makes such classification on the basis of religious persecution while specifically terming out the religions that will be covered by the said amendment. Such classification is neither based on any intelligible differentia nor has any rational basis behind it. Consequently, Bangla-speaking Hindus will be made eligible for Indian citizenship, but Bangla-speaking Muslims are not eligible for the same. For a legal system that promises to operate on the principles of justice and equality, the amendment will be a despair worthy setback to the pluralistic democracy that India has been. If the object of the Act is truly to put an end to the suffering of, and provide a shelter to, persons seeking a permanent asylum then the distinction made makes absolutely no sense, especially so in the presence of already existing minorities, Rohingyas, who are taking refuge in the country due to religious persecution, as opposed to anticipated minorities belonging to the religions as specifically spelt out in the 2019 amendment.
Illegal Migrants & Assam Accord
However, the most important aspect of the 2019 Bill remains it’s reneging upon the assurances made in the Assam Accord in 1985. A Memorandum of Settlement, popularly known as the Assam Accord was signed in 1985 between the representatives of the Government of India, Assam Government and leaders of Assam Agitation, in the presence of the then Prime Minister, Mr Rajiv Gandhi. The aforesaid Accord was a much-required step towards providing stability in the state of Assam that had been facing severe violence and rioting for the past six years in the form of Assam Agitation, with major groups demanding that the illegal migrants having come into Assam, post creation of Bangladesh in 1971 must be identified and deported. This demand of the agitators is amply reflected in Clause 5 of the 1985 Accord, which provides that “foreigners who came to Assam on or after March 25, 1971, shall continue to be detected, deleted and expelled in accordance with law.” As a consequent effect of the developments thereafter, the Citizenship Act, 1955 was amended so as to include therein Section 6A [Special provisions as to citizenship of persons covered by the Assam Accord], which reiterated the position as agreed in the Assam Accord and provided 25th March 1971 as the cut-off date for ascertainment of citizenship for persons covered under the Assam Accord, meaning thereby that all persons, irrespective of their religion, who have come to the Indian territory after the cut-off date were to be detected and deported in line with the undertakings in the Assam Accord.
While the revised draft of the Amendment Bill seeks to cover the damage to some extent and is being advertised as having exempted the north-eastern states from its application, a careful reading goes on to show that what has been exempted from the application of the amended conditions for naturalisation are only tribal areas of Assam i.e., four contiguous districts of the Bodoland Territorial Council namely Kokrajhar, Baksa, Udalguri and Chirang along with two districts covered by the Karbi Anglong and the Dima Hasao councils, meaning thereby that the rest of Assam, apart from these 6 districts, remains covered in the ambit of the 2019 Bill. In addition to this, while the 1985 Accord clearly undertook that illegal migrants having entered the State of Assam on or after 25th March 1971, shall continue to be detected, deleted and expelled in accordance with law and that immediate and practical steps shall be taken to expel such foreigners, the proposed amendment has played foul on the promise made in 1985 as clause (3) in the proposed Section 6B, sought to be added by the 2019 Bill, provides that any proceeding pending against persons who are seeking the benefit of the amendment, with regard to illegal migration or citizenship shall stand abated. Such proceedings include both, original references before the various Foreigners Tribunals in Assam as well as appeals arising out of non-inclusion in the final NRC published for Assam.
Therefore, what is evident is that while the proposed amendment Bill is in clear violation of the law of the land in refusing equality to a certain class of persons, who will not be covered under the present Bill, it also frustrates the purpose of the ongoing updation of NRC and renders the entire exercise absolutely redundant. The dissatisfaction of the people in Assam is also evident, with the Bill running completely counter to the 1985 Assam Accord, which has held peace in the state since it was signed. Though the people are being repeatedly assured that the burden of all these new citizens will be shared by the entire country, it still does not change the fact that the very crux of the ongoing chaos in Assam was to prevent any person from becoming a citizen. This Bill is a result of willful ignorance and is completely indifferent to the cause that rests at the heart of social and political instability in Assam.
Moreover, if a nationwide NRC is to be conducted in the country with the same blinkered view as was in Assam or if similar references to foreigners tribunals are going to be issued post the proposed amendment, where justice is half baked then the proposed amendment bill provides a further incentive for the same injustice to continue in perpetuity as while the notified communities remain exempt from the very definition of illegal migrants, it is essentially one single community that will be singled out.