Who is a citizen, who is an ‘illegal immigrant’: Questions before SC in Assam Citizenship Act case

 

The ongoing hearing by a bench headed by Chief Justice of India DY Chandrachud will involve questions of citizenship, “illegal immigrants” and rights of “indigenous Assamese” citizens in Assam 

A five-judge Constitution bench of the Supreme Court, on December 5, began hearing pleas challenging Section 6A of the Citizenship Act,which was introduced in the statute following the signing of the Assam Accord.

Signed in 1985, between the Rajiv Gandhi government and the All Assam Students’ Union, the Accord culminated a six-year-long agitation against the entry of migrants from Bangladesh into Assam.

Crucially, the ongoing hearing by a bench headed by Chief Justice of India DY Chandrachud will involve questions of citizenship, “illegal immigrants” and rights of “indigenous Assamese” citizens in Assam .

What is the challenge?

The plea before the Constitutional bench challenges one of the core elements of the Accord — which determines who is a foreigner in the state. This was also the basis of the final National Register of Citizens in Assam, published in 2019. Clause 5 of the Assam Accord states that January 1, 1966 shall serve as the base cut-off date for the detection and deletion of “foreigners” but it also contains provisions for the regularisation of those who arrived in the state after that date and up till March 24, 1971.

Section 6A of the Citizenship Act was inserted as an amendment to accommodate this. It effectively establishes March 24, 1971 as the cut-off date for entry into the state, meaning that those entering the state after that would be considered “illegal immigrants”. While those who came to Assam on or after January 1, 1966, but before March 25, 1971 from Bangladesh will be detected as “foreigners”, they would have the opportunity to register themselves according to rules made by the Central Government. Except for being included in electoral rolls, they would be granted the same rights and obligations as Indian citizens for a period of 10 years from the date they were detected as foreigners. At the end of this ten-year period, however, they would be deemed citizens.

Why is Section 6A under challenge?

The plea before the bench, while questioning the constitutional validity of Section 6A, wants 1951 to be established as the cut-off date for inclusion in the National Register of Citizens instead of 1971. The primary petitioner is the Assam Sanmilita Mahasangha (ASM) — an organisation which says it advocates for the rights of “indigenous” communities of Assam.

Their core argument is that by establishing a different cut-off date for Indian citizenship in Assam than in the rest of India — which is July 1948 — Section 6 A is “discriminatory, arbitrary and illegal” and violative of the rights of “indigenous” Assamese people.

Their petition, which was filed  in 2012, states that “the application of Section 6A to the State of Assam alone has led to a perceptible change in the demographic pattern of the State and has reduced the people of Assam to a minority in their own State. The same is detrimental to the economic and political well-being of the State and acts as a potent force against the cultural survival, political control and employment opportunities of the people.”

When the final NRC in Assam was released in 2019, the Working President of the ASM Matiur Rahman said that the body is looking to an order passed by a two-judge bench led by then CJI Ranjan Gogoi as a possibility that the NRC can be updated according to the terms requested to them.

The order, passed on December 13, 2019 states, “We make it clear that subject to orders as may be passed by the Constitution Bench in Writ Petition (C) No.562 of 2012 and Writ Petition (C) No.311 of 2015, National Register of Citizens (NRC) will be updated.”

“By settling on the date of Bangladesh’s independence in violation of the Constitution, the AASU has gone against the indigenous tribes of Assam by favouring the 70-80 lakh Hindu and Muslim Bengalis and Nepalis who fled from East Pakistan over the course of those years and illegally occupied the lands of indigenous tribes and government lands,” Rahman said.

What are the constitutional issues involved?

While hearing the 2012 plea by the ASM, a two-judge bench of Justices Ranjan Gogoi and Rohinton had framed 13 questions on Section 6A for deliberation by a constitutional bench, in an order passed on December 17, 2014.

1. 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)?
2. 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;
3. 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)?
4. 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?
5. 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
6. 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.
7. Whether delay is a factor that can be taken into account in moulding relief under a petition filed under Article 32 of the Constitution?
8. 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?
9. 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?
10. 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?
11. 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?
12. Whether Section 6A violates the Rule of Law in that it gives way to political expediency and not to Government according to law?
13. 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?

Written by Sukrita Baruah , Apurva Vishwanath

Source: Indian Express, 8/12/23

CAA negates everything that the Assam accord had sought to protect

For “identity is shaped by participation in ‘cultural communities’ which need appropriate institutional protection” and that “groups. need to have rights in order to foster individuals’ well-being” (MacCormick, Kymlicka).

The Supreme Court of India, by deciding to hear the cases of Assam and Tripura against the Citizenship (Amendment) Act separately, appears to has acknowledged what mainland India — with its habitual disconnect with the Northeast’s core problems — fails to see: That it is not only the communal nature of the new law that troubles these states. That as the movement against the CAA, which germinated in Assam, snowballed into a pan-India phenomenon, the narrative about existential threat to the ethnic communities of Assam in particular and the Northeast in general, went unnoticed. And this remains largely unregistered in the pan-Indian as well as the international consciousness.

In Assam, the outrage against the state and central government is not merely because the CAA is communal, and discriminates against one particular religious community; but primarily because it negates all that was promised after the six-year-long Assam Movement from 1979 for the protection of the ethnic communities of the state, whose identity is entwined with the language, culture and land of Assam. An identity now endangered by illegal immigrants from Bangladesh. The Assam Movement was triggered when, ahead of the 1980 general elections, the then chief election commissioner, S L Shakdhar, issued a circular legitimising illegal voters as bona fide citizens on the orders of Indira Gandhi, making a mockery of the People’s Representation Act and aborting the revision process of the electoral rolls. This same Shakdhar, in 1978, had spoken of attempts by political parties to include the names of foreigners in electoral rolls without “questioning and determining their citizenship status”.

Indira Gandhi was merely continuing the policies of Jawaharlal Nehru and Sardar Patel regarding immigrants in Assam. Unlike Gandhiji, both Nehru and Patel were impervious to the legitimate fears of the people of Assam — of being reduced to a minority in their own state, their political rights clipped like the Tripuris next door because of the changing demographic profile. Gandhiji foresaw the calamitous fallout and even urged the Assamese leadership to sit in satyagraha against the Congress itself if necessary. The truth was that, although Assam had become a part of the Indian Union, the central leadership, since the beginning felt no obligation to engage with the problems of Assam as Indian problems. This is unsurprising: Indigenous people across the world are victims of colonial policies which disregard their basic rights and thrust upon them policies that take away their land, resources as well as their political power, forcing them to be subsumed in colonial society and culture.

The Assam Movement ended in 1985 with the signing of the Assam Accord, which promised to safeguard the interests of the people of Assam. Yet, the promises as per the Accord regarding the detection, deportation and deletion of names of illegal immigrants who entered after 1971, sealing of the Indo-Bangladesh border, and ensuring full political rights of the Assamese have not been addressed. Instead, the central government is offering citizenship to all Hindu illegal immigrants till 2014 when over 50 lakh illegal immigrants are already squeezing the local inhabitants’ space. The unkindest cut of all is that the state government, whose subservience to the Centre is total, comprises leaders who led the Assam Movement, then promising total implementation of the Assam Accord in their manifesto. It is pertinent to also recall how in 1836, Bengali was made the official language of Assam. With the support of American baptist missionaries, Assamese intellectuals had to fight to restore Assamese as the official language in 1872.

The new law shows no respect for the sense of “identity” of the Assamese. For “identity is shaped by participation in ‘cultural communities’ which need appropriate institutional protection” and that “groups. need to have rights in order to foster individuals’ well-being” (MacCormick, Kymlicka). The protest against the CAA in Assam continues because the people of Assam see it as part of a design to systematically dispossess them of their land, culture, language and, therefore, identity, by allowing the demographic balance to be disturbed recklessly. Their cry echoes the cry of indigenes the world over for survival.

This article first appeared in the print edition on February 6, 2020 under the title “Rage and reason”. The writer is president, Policy Group For Peoples’ Rights (PGPR), Dibrugarh, Assam, and convenor, INTACH, Dibrugarh chapter

Source: Indian Express, 6/02/2020

In the Northeast, a David versus Goliath battle

With political protests erupting in the region against the Citizenship (Amendment) Bill, the BJP has been put on notice

The tiny States in India’s east, the Davids, have put the Goliath of political parties, the Bharatiya Janata Party, on notice with a carefully aimed slingshot that may hurt the giant.

Why the opposition?

The Chief Ministers of Meghalaya and Mizoram, a representative of the Nagaland Chief Minister, and an ally of the BJP government in Tripura declared their unliteral, united and unhesitating opposition to the Citizenship (Amendment) Bill of 2016, which seeks to fast track citizenship to migrants of Hindu and five other non-Muslim groups from Bangladesh, Afghanistan and Pakistan. The carefully crafted North-East Democratic Alliance of non-Congress parties in the region has stumbled.

Meghalaya’s Conrad Sangma, who runs a coalition government which includes the BJP, convened the meeting in Guwahati, the region’s political hub, challenging the BJP on its own turf. Interestingly, the Congress, which walked out of the Lok Sabha when the Bill was being passed, was initially muted. Now, it has said it will ask its MPs to vote against the Citizenship Bill in the Rajya Sabha.

Amid the din of street protests across Assam and elsewhere, reference is made time and again to the Assam Accord of 1985, which laid down the criteria, strategy and structure for the deeply troubling ‘foreigners’ issue in the State. The Accord sought to calm a movement against illegal migration that had erupted in bloodshed and confrontation taking thousands of lives between 1979 and 1985. The key concerns that the Accord sought to address, through an agreement of the Centre, the State government and the All Assam Students Union, involved not only illegal migration from Bangladesh but also constitutional safeguards for citizens and economic initiatives for the State’s growth. Such growth would benefit the entire region since Assam, the largest of the eight States, drives the regional economy.

When the BJP came to power at the Centre and in the State, it sought to fast track a key demand of the Accord, the updating of the National Register of Citizens (NRC), to ostensibly clarify the existence of large numbers of non-Indians in the State. This had been stymied by earlier Congress-led governments. However, a July 2018 NRC draft, which left out four million people, was sharply denounced as prejudiced and flawed. A group of senior retired officials wrote a letter to the Prime Minister drawing attention to what they saw as a deeply problematic process.

The Supreme Court, which has been issuing a set of ad hoc directions for a project it is directly supervising, has given NRC organisers more time to fix the problems. This came after nearly 32 lakh persons filed challenges to their non-inclusion. The Citizenship Bill came plumb in the middle of this, with government officials in Delhi asserting that the Centre is committed to it and that the Bill is being misunderstood.

By excluding Muslims from its ambit, thus making citizenship contingent on religion, the provisions in the Bill appear to be contrary to Article 14, which guarantees “equality before the law or equal protection of the law” in any part of India. The Joint Parliamentary Committee, which assessed the views of stakeholders, political and civil society groups across the country, asked the Intelligence Bureau (IB) for a figure of immediate beneficiaries of the Bill. The IB said there were just 31,313 members of these minority groups staying on long-term visas after claiming religious persecution in the three countries of focus in the Bill. But is it the Centre’s case that this small figure is the sum total of persons that it wants to benefit? This does not appear to be so, according to statements of BJP leaders in Assam, where lakhs of illegal migrants are said to have settled since 1971. However, there are no hard figures, only estimates.

At the heart of the matter is a very simple issue. The 1985 Accord, by which everyone swears, is specific and unique. It is specific to a State (hence the Assam Accord) and an issue (illegal migration), and defines the effort to settle an issue which was swamped by discord. It cannot be undone by legislation that seeks to supersede it. The Accord was sanctioned by Parliament and has acceptance in the State across party lines.

Shifting goalposts

That is why arbitrary efforts and manufactured consent are meeting such resistance. The goalposts are being changed without adequate dialogue. Lack of discussion and transparency are reasons why parts of this sensitive region erupt repeatedly. Delhi does not learn from the past. How could it expect the shifting of political goalposts to be accepted quietly? The Accord placed the cutoff year for deportation of illegals at 1971, when Bangladesh was created. The Bill changes that to 2014. Constitutional rights must be upheld. While the Bharat Ratna to Bhupen Hazarika is overdue and welcome, it cannot detract from the core questions that are being asked.

The words of Mahatma Gandhi to the emissaries of Gopinath Bordoloi, later Assam’s first Chief Minister in Independent India, on December 15, 1946 ring true today. That was when the British Cabinet Mission, through constitutional trickery, sought to impose Bengal majority control over Assam. “If Assam keeps quiet, it is finished. No one can force Assam to do what it does not want to do. It must stand independently as an autonomous unit,” he said.

Assam is speaking as are the peripheries. But is Delhi listening? The act of dialogue presupposes compromise by either side, especially the more powerful.

Sanjoy Hazarika is the International Director of the Commonwealth Human Rights Initiative. Views are personal

Source: The Hindu, 1/02/2019

Assam in flux: why the Citizenship (Amendment) Bill is so contentious

More than 33 years after an anti-foreigners’ agitation from 1979 to 1985, Assam is in turmoil again — this time because of the Modi government’s bid to get the Citizenship (Amendment) Bill, 2016 passed in Parliament. Assam and the rest of the Northeast shut down on Tuesday after the Lok Sabha passed the Bill.

What is the Bill about?

Seeking to amend the Citizenship Act of 1955, the Bill was introduced in the Lok Sabha in 2016 for granting citizenship to minority Hindus, Sikhs, Buddhists, Jains, Parsis and Christians who came to India on or before December 31, 2014 due to religious persecution in Afghanistan, Bangladesh, and Pakistan. The Bill requires such immigrants to spend at least six years to be eligible for citizenship, instead of 12 years as is currently applicable.

Why is there opposition in Assam?

The Assamese and other indigenous communities in Assam say that the Bill is against the spirit of the Assam Accord as well as the National Register of Citizens being updated. The Assam Accord, signed in August 1985, prescribed March 24, 1971 as the cut-off date for detecting and deporting illegal migrants irrespective of religion. The same date applies for NRC inclusion. Some locals argue that the Bill, if passed, will make those who entered India after March 1971 eligible for citizenship overnight. They say that Assam has been bearing the burden of migration even before 1971, and cannot accept any more people.

What is the BJP’s stand?

The BJP says India was divided on the basis of religion and the country has to create space for the non-Muslim victims of Partition facing religious persecution in the neighbourhood. Muslims comprise 34% of Assam’s population. The BJP is believed to have gone ahead with the Bill despite opposition after “testing the waters” with the December panchayat polls, when it won an unprecedented 41% of the seats. This implied that the issue had little or no impact on the voters.

Who will benefit?

The BJP has given the issue a communal edge by arguing that 17 Muslim-majority Assembly seats do not go “Jinnah’s way”. But it is not clear if this can be done by granting citizenship to a large number of Bengali Hindus among the 40.07 lakh people left out of the NRC. The BJP is clearly eyeing the votes of Bengali Hindus, who were once a Congress vote bank, comprising less than 10% of Assam’s population of 3.29-crore. Many Bengalis, however, feel the Bill will do them more harm than good, specifically if 1951 is taken as the base year by the Assam government for a move to define who are ‘Assamese’ and ensuring political, land and other rights for only “sons of the soil”.

What may be the political fallout?

The Asom Gana Parishad has pulled out of the alliance with the BJP. Other regional allies of the BJP are unhappy with the Bill and could take a call with the Lok Sabha elections drawing near. But regional parties in the Northeast are usually dependent on the party or coalition in power at the Centre, and their decision may depend on the trend post-elections

Source: The Hindu, 10/01/2019