The second draft of Assam’s National Register of Citizens (NRC) has been published with 40 lakh people not finding their names in it. They are on the verge of becoming stateless. There are apprehensions of ethnic cleansing or disenfranchisement now due to the rising majoritarian politics, though the government said it is a mere draft and no one will be deported for now. A large number of excluded people are from the Bengali-dominated districts of Cachar, Hailakandi and Karimganj. Since many Bengalis, including those from families of freedom fighters and government employees, who might have passports or Aadhaar, face exclusion, West Bengal CM Mamata Banerjee said she would consider providing shelter to those excluded.
Citizenship is the relationship of an individual with a political community. It signifies full and equal membership of such a community. Exclusion of outsiders or others is central to the modern citizenship concept. But the Constitution does give some fundamental rights such as the right to equality, right to life and personal liberty, freedom of religion, etc., to even non-citizens and thus these 40 lakh people will continue to enjoy these fundamental rights.
There are two well-known principles for the grant of citizenship. While ‘jus solis’ confers citizenship on the basis of place of birth, ‘jus sanguinis’ gives prominence to blood ties. Under the ‘momentum’ principle citizenship is individualistic and signifies universality and equality and obliterates ethnic, religious and caste identities. Shared identity is at the centre of citizenship.
Assam was ceded by Burma to the British in 1826 as per the Treaty of Yandabo. To protect the social and cultural interests of Assamese people, Immigrants (Expulsion from Assam) Act was enacted in 1950 itself. Under the flawed idea of Pakistan, we had West and East Pakistan separated by over 2,000 km. As nations are not made in the name of religion, the two-nation theory failed within 25 years and East Pakistan became an independent Bangladesh in 1971. The artificial and foolish Partition created more problems on the eastern side where the border was extremely porous and migration had more to do with the earning of livelihood rather than conscious opting of one citizenship in preference of another.
Most Citizenship Act amendments were about Bangladesh as large-scale migration into India continued on the eastern side. The Assamese agitation against this infiltration eventually led to the historic Assam Accord of 15 August 1985. The Rajiv Gandhi government, through this accord, assured Assamese people that the Centre will ensure protection and preservation of their cultural, social and linguistic identity.
Who is included in the NRC? The 1986 amendment to the Citizenship Act (1955) made a special dispensation for Assam and introduced a new category of citizen in relation to Assam. The newly inserted Section 6A laid down that all persons of Indian-origin who entered Assam before 1 January 1966 and have been its ordinary residents will be deemed Indian citizens. Those who came later but before 25 March 1971 and have been ordinary residents will get citizenship upon registration at the expiry of 10 years of their detection as foreigner. But during this interim period, they would not have the right to vote but can get an Indian passport. Finally those who entered after 25 March 1971 upon identification under Illegal Migrant (Determination by Tribunal) Act, 1983 would be deported.
Unlike the original Citizenship Act that gave citizenship on the principle of ‘jus solis’ to everyone born in India, the 1986 amendment was less inclusive as it added the condition that in addition to one’s own birth in India, one could get citizenship only if either of one’s parents was an Indian citizen at the time of birth.
In the 2003 amendment under the Vajpayee government, the above condition was made stringent keeping in view infiltration from Bangladesh; the law requires that in addition to the fact of birth, either both the parents should be Indian citizens or one parent must be an Indian citizen and other should not be an illegal migrant. With these exclusionary amendments, the narrow principle of ‘jus sanguinis’ has become more important than the fact of one’s birth on Indian soil.
Acting on a petition by Sarbananda Sonowal, the current Assam CM, the IMDT Act was struck down by the SC in 2005. The court almost toed the rightist line and came down heavily on illegal migration by terming it an act of ‘aggression.’ The Bangladeshi migrants into Assam, who were mostly Muslims, were considered not only disruptive and dangerous but also followers of so-called Islamic fundamentalism.
The court expressed its concerns about the demographic shift in Assam. The state’s attempt to get around this by passing the Foreigners Tribunal (for Assam) Order of 2006 was also struck down by the court. In the Assam Sanmilita Mahasangha case (2014) where the constitutionality of the 1986 amendment was challenged, the apex court referred the matter to the constitution bench.
On the other hand, the top court was more sympathetic to the Chakmas who were Buddhist residents of Chittagong Hill Tracts and Mymensingh districts of former East Pakistan and today’s Bangladesh. In the Khudiram Chakma case, it held that Chakmas have been in Arunachal Pradesh for almost three decades and thus are entitled to citizenship through registration on the basis of domicile. The court ordered that no Chakma is to be forcibly evicted and held quit notices issued against them as violative of right to life and personal liberty. One hopes the apex court will also protect the rights of those not included in the NRC.
Every illegal Bangladeshi immigrant is not a potential terrorist. We may not even be successful in deporting them to Bangladesh, but those excluded will have a miserable life in detention camps. India is a land of immigrants. Inclusion, not exclusion, has been our culture and motto. Let us not dilute it. Let us reject the politics of bigotry, hate, and us and others as these are not Indian values.
Faizan Mustafa
Vice-Chancellor of NALSAR University of Law, Hyderabad, and an expert on constitutional law
Email: vc@nalsar.ac.in