A protest against the Citizenship Amendment Act in Assam


Binayak Dutta

A proposal to amend the Citizenship Act, 1955, one of the key components of the ruling Bharatiya Janata Party’s manifesto, was introduced for the third time on 9th December 2019 despite strong social and political opposition. The Bill sought to address the concerns of non-Muslim refugees who had come to India from East Pakistan. These people were conceived as an inalienable part of the Indian national consciousness, who had been forced to reside in a land that had become a foreign country after partition and who were forced to migrate to India from Pakistan since partition in 1947 and subsequently from Bangladesh post 1971 because of religious persecution. This engagement with partition and refugee-hood was part of a larger commitment of the Indian leaders engaging with post-colonial national reconstruction shared across the political spectrum in India since the years immediately after independence. This is reflected in the assertions of leaders such as Mahatma Gandhi, Jawaharlal Nehru and Sardar Vallabhbhai Patel and also in the deliberations of the Provisional Parliament after independence. When the colonial government decided to transfer power in India it decided to partition the subcontinent into two states – Pakistan and India. While Pakistan and its Muslim League leadership envisaged itself as a theocratic state which claimed Islam to be the State religion, India imagined itself as a secular state where the state would not have any religion as its own. But the politics and the experiences of the people at the grassroots manifested in a violent partition of the subcontinent had a deeper impact on the construction of citizenship in post-colonial India, a process that has entered the construction of citizenship over more than seven decades in Assam reaching a recent crescendo during the just concluded process for enrolment of the National Register of Citizens, 2015-2019 and the notification of the Citizenship (Amendment) Act, 2019 in January, 2020.

Unburdening a divided legacy

While inter-provincial borders of the colonial era became international boundaries, perceptions about population migration also underwent a change. Inter-provincial migration which was easy and mostly unrestricted became restricted by the legal regimes. Though there was no restriction on movement of people from East Pakistan to Assam in the initial years after independence. Gradually the provincial governments and the Government of India began to discourage return migration of Muslims from Pakistan to India between 1948 and 1950. This is reflected in the correspondences between Jawaharlal Nehru and leaders such as Sardar Patel who pointed out that there was a rising discontent among Indians in general and refugees in particular about the inflow of Muslims into India from Pakistan. The East Pakistan situation was very critical as there was a steady exodus of Hindus who constituted 31 percent of the total population in 1947 and were reduced to 22 percent in 1951. As people migrated, the entire subcontinent was in flux, especially in the east and the west of India bordering the two wings of Pakistan. One of the epicentres of intense activity in the east was Assam which shared more than 885 km. border with East Pakistan. Nehru, in his letter to the Chief Ministers on 1st April, 1948 was quick to point out that, “the exodus of non-Muslims from East Bengal continues. We are naturally as much bound to help these refugees as any from western Pakistan.”
But despite utmost attempts from India, the conditions continued to deteriorate and hostilities between the displaced Hindu refugees, coming from East Bengal and the Muslim returnees from Pakistan had obviously grown despite the best efforts of the Prime Minister to downplay the differences between the Hindu refugees and the Muslims. As partition introduced the ‘foreigners’ dimension into politics the debate only became more intense and anxiety-ridden. The situation became critical as the initial trickle of people wanting to migrate to India from East Pakistan became a flood by 1949 as the political atmosphere in East Pakistan became increasingly hostile to the minority communities across the border. The hostile situation on the ground for the East Pakistani Hindu population was as much reflected in official correspondence between the ministers of the central government and other leaders of Congress party, who were located in the provinces, sharing a border with East Pakistan, in the local press and also as such in debates of the Constituent Assemblies of India and Pakistan.
As the Home Minister, Sardar Patel also endorsed the grim situation when in a debate on the refugee situation and rehabilitation in the Subjects Committee at the Congress Session he pointed out that,
…the problem of East Bengal is difficult. There are about 15 million Hindus there. They are weak and soft. The people of the Punjab were different. They were strong, they could assert themselves and fight.
The people of East Bengal are in a sad plight. Nobody wants to leave his own hearth and home without any reason. After all, in India they would have to starve. It is because of conditions in which they live there are bad that they migrate to India…

Though the Punjab situation had stabilized by 1948 as, in the language of Sardar Patel, “there was not a single Hindu or Sikh left in West Pakistan” indicating that the population transfer or exchange was more or less completed, in the east, it was a different scenario. This increasing hostility faced by the non-Muslims in particular in East Pakistan was at the core of public and political debates informing the refugee verses immigrant dichotomy emerging in the formative post-colonial years and reflected in the legal debates on citizenship in India through the deliberations and decisions of the Constituent Assembly, a representative body of 385 members representing both the British Indian provinces and the Indian princely states.

Fleshing the difference

One of the earliest debates to have a detailed engagement with citizenship, the impact of partition and the demographic upheavals of East Pakistan and the future of non- Muslim ‘displaced/refugees’ migrating from East Bengal/ East Pakistan to Assam resonated in the deliberations on the proposed electoral roll envisaged for the first general elections after independence in the arguments and proposals of Jawaharlal Nehru himself. Nehru, who was in favour of holding elections “as early as possible in the year 1950” and argued in favour of facilitating the obvious incorporation of ‘refugees’ into the electoral roll and therefore by obvious implication, into ‘citizenship pointed out in his reply to the demand by Rohini Kumar Choudhuri, a member representing a general seat from Assam, whether the rights of refugees should be protected even if by “ special provision” as against ‘vague migrants who may come in.’ Nehru pointed out that, “it was intended that they should vote…” This position is the first major assertion of the distinction that the Indian state had always maintained a pro-refugee position in post-independence post-partition. It was in view of the difficult situation that, Nehru and other leaders of the Constituent Assembly, while speaking on the issue proposed that, “…a person who has migrated into a province or Acceding state on account of disturbances or fear of disturbances in his former place of residence shall be entitled to be included in the electoral roll of a constituency if he files a declaration of his intention to reside permanently in that constituency.” Though the debate in the Constituent Assembly was primarily restricted to the necessity of the filing of a declaration by the refugees who would come to India after 31st March, 1948, on the question of refugee rights to secure a place in the voters list of independent India, there was no dispute. Though this provision on the gestation period prior to the refugee securing the status of the voter, was also adopted after much opposition and incorporated into the statute after much debates, there was a consensus that the refugee rights to secure voter-ship in independent India was on board. Seven months later when the Constituent Assembly met to debate on citizenship, it was Rohini Kumar Choudhury, again, who championed the citizenship claims of the refugees coming to Assam, more so the partition victims. Rohini Kumar Chaudhuri who represented a general seat from Assam in the Constituent Assembly was aware of the difficulties posed by partition on the lives of the non-Muslims in East Pakistan and its impact on India in general and Assam in particular. Its significant that in pressing his amendments to the draft of Articles, 5 and 6 he demanded citizenship for those persons who migrated from East Bengal to Assam,
because they found things impossible for them there….Can anyone imagine for a moment that there is no fear of disturbance in the minds of these East Bengal people who had come over to West Bengal and Assam?…Has that sense of security now after a period of two years been enhanced by the fact that Pakistan has been converted into a theocratic state?…The fear is latent in the minds of everybody. The moment any Hindu or a person of any minority community raises a protest against any action which is taken there, disturbances would immediately follow…. I want citizenship rights to this class of people who have originally belonged to Sylhet in the province of Assam, who long before the partition, have come to the Assam Valley as citizen ‘of that province and are staying in the present province of Assam… I want to make it perfectly clear that I want citizenship rights for those people of East Bengal who had gone over to West Bengal or Assam out of fear of disturbance in the future or from the sense of insecurity and – also for those people who have come over from Sylhet, who at the time of coming had no fear of disturbance or anything of that kind, but who on account of fear of disturbances now have decided to live here.

But even at that critical moment of his exposition on the future of citizenship in India and Assam, Choudhury did not lose sight of the obvious distinction between the refugee and the immigrants as he opposed the inclusion of Bengali Muslim immigrants into the new citizenship register by declaring that,
“I would exclude those persons who came only three years ago, who set up the civil disobedience movement forcibly occupied land which was not meant for them and forced the benevolent and benign Government to have recourse to the military to keep peace in the province. …I desire to exclude those persons who surreptitiously introduced themselves into my province and who now having mixed themselves with their own brethren, now desire to have citizenship rights…I desire to exclude these people because they had not long ago set up the struggle for Pakistan, they had not long ago taken an active part in compelling the politicians in India to agree for partition…I only want that those classes of persons whom I have mentioned should be included and should get citizenship rights and those classes of persons whom I want to exclude should not get the right of citizenship…”
For Choudhury, the only Assamese Hindu representative from Assam who spoke on citizenship rights, his presentation was seminal as it was supported also by Mr. Dharanidhar Basu-Matari representing the Tribal people of Assam and Mr. Nibaran Chandra Laskar, representing the Bengali Scheduled Castes from Assam, representatives of three most important components of non-Muslim society in Assam. It was a spectacular joint front, unprecedented in history and steeped in the tenuous communal history of Assam, especially the anti-immigrant sentiments of the Assamese middle class and attempts by them to reconcile this history with post-colonial reality. It is important to remember that the Congress ministry in Assam which came to office after the elections of 1946 had launched a vigorous anti-immigration drive and had also had to resort to forceful eviction drives and counter measures against the Civil Disobedience that was launched by the Muslim League in Assam in March, 1947, a fact which resonated in the assertions of Choudhury.
When the Constitution of India came into force in 1950, the sentiments of the Assembly clearly reflected itself in within the Constitutional framework accommodating the interests of the displaced/refugees in post-colonial India, though the term ‘refugee’ exactly did not find a mention in the bulky constitution that came to govern the nation-state. But between 1947 and 1950, as India was giving itself the Constitution, East-Pakistan was in the throes of a violent conflagration which was singularly targeting the non-Muslim population. A summary of the incidents presented in a memorandum submitted by one of the Hindu members of parliament in Pakistan to the prime minister, Nurul Amin in December, 1949 drew his attention to
“indiscriminate requisitioning of Hindu houses, godowns, shops, educational institutions and other immovable properties all over East Pakistan. It pointed out that in Dacca alone 3 thousand Hindu houses had been requisitioned. The licence of Hindus holding fire arms were cancelled and the arms were seized. Large number of houses and lands throughout Pakistan were forcibly occupied by Muslims. Temples were desecrated. Large number of reports of crimes against Hindu women were brought to the notice of the authorities but were ignored. Forced conversions and forced marriages after abduction were also mentioned. Large number of dacoities during which attacks on women had taken place had become a feature of rural life in East Bengal. Muslim mobs on the pretexts of keeping an eye over disloyal Non Muslims raided Hindu houses. In the rural areas forcible removal of crops, plucking of fruits from trees, cutting of bamboos and catching fish from the tanks belonging to Hindus had become most common. The attitude of the Government and the police towards these complaints from Hindus was complete indifferent and some district magistrates openly preached against the Hindus. The Minority Boards agreed upon by the Neogy-Mohammad Pact were either not brought into existence or were not allowed to function. Local Boards and Municipalities where Hindus held the majority seats were arbitrarily suspended.
In February 1950, there was a repetition of the pattern of Calcutta killing in East Pakistan. Unfortunately, this was widespread. The atrocities which began in August 1949 all over East Pakistan continued almost for a period of 3 months.
These incidents led to a fresh wave of migration and thousands of Hindus poured into West Bengal, Assam and Tripura.”
The number of displaced almost touched about half a million people by April, 1950.But even in such a grave situation, while people belonging to the minority communities in East Pakistan poured into India, a large number of Muslims, who otherwise had no political threat to their lives in Pakistan also came into India. It was a scenario to which the Government of Assam drew the attention of the central government since 1948 and the Government of India was not prepared to overlook as it not only aggravated the economic pressures on partitioned India and Assam but also created a serious security scenario forcing the Government of India to promulgate an ordinance to prohibit the entry of such Muslim migrants from East Pakistan into Assam and India. While the non-Muslim migrants were classified as ‘displaced’ or referred to as ‘refugees’ the latter were clearly identified as ‘undesirable immigrants’ in official discourse, including the Ordinance that the central government promulgated to overcome the grave scenario, pending the passage of a bill in the provisional Parliament to that effect. Though the arguments came from diverse ideological backgrounds and different readings of history, this classificatory difference between ‘displaced’/refugees and illegal immigrants continued to dominate the debates on migration/immigration cutting across ideological lines.

When the Government brought in the bill to regularize the ordinance through the Undesirable Immigrants (Expulsion from Assam) Bill 1950 to the Parliament to “provide for the expulsion from Assam of undesirable immigrants”, as distinguished from “persons who on account of disturbances or disorder in Pakistan’or any other country have come to take refugee in Assam…”, almost all the members of parliament dominated by the Congress party joined ranks. Almost all the members speaking on the bill especially those from Assam, prominent being Shri Rohini Kumar Choudhury, Shri Surendranath Buragohain, Shri Dev Kanta Barooah, and Shri Kuladhar Chaliha supported the bill and desired its passage into an Act. There is no doubt that the Bill, on becoming an act with the title Illegal Immigrants (Expulsion from Assam) Act, 1950 promulgated on the 1st of March, 1950, contributed to create a legal foundation for a differential between Non-Muslim and Muslim migrants into Assam based on a difference in understanding the causes of migration distinguished on religious lines, the focus on violence or apprehensions about it and its diverse manifestations on the non-Muslims in East Pakistan and its resultant insecurities and apprehensions. Members were extremely concerned with the fate of the migrants who had come to Assam from areas which formed part of East Pakistan as the situation was not as favourable for the refugees in East Pakistan. Apart from Rohini Choudhury, Mr Surendranath Buragohain took to the floor to assert the difference between the refugees and immigrants. Rohini Choudhury led the debate by asking the Minister,
“to make it clear by a clause that the word ‘immigrant’ in the Bill does not include the refugees who have come to Assam…But I may say that for a single refugee who has come to Assam three times that number have come from Eastern Pakistan who cannot by any means be called refugee…who have come in for economical reasons or for the reasons of exploitation.”
Considering the location of Assam as the third partitioned province of colonial India, it was perhaps important to make the difference considering that the minority Hindus from Sylhet would naturally want to come to India, more so to Assam as the displaced. It was not to any surprise that Shrimati Sucheta Kripalani was quick to point out that “it is very natural that these people, Hindus who were formerly people of Assam and who are now citizens of East Bengal, when they are persecuted they would try to enter our land.” Perhaps the most vociferous was Mr Deb Kanta Barooah, also from Assam, who was even more categorical to point out that,
“although the dictionary meaning of the word ‘immigrant’ is anybody who comes from one country to another, in this particular case the word ‘immigrant’ means only Pakistani Muslim immigrants from Eastern Pakistan and does not include the refugees of whom a census was separately taken in Assam. We have learnt from Shri Rohini Kumar Choudhury that 1,20,000 displaced persons, who left East Bengal for fear of persecution have come to Assam. We must draw a line between these two types of people-People of Pakistani origin and nationality who owe no loyalty to our country and to our State, and people who for their love of India and patriotism have been persecuted in Pakistan and have taken shelter in Assam.”
These interventions from the debate led the Government of India to insert a proviso into one of the sections of the bill that sought to make the distinction between persecuted displaced minority community person/refugee East Pakistan and illegal/ undesirable migrants from East Pakistan who had ‘subsequently come to reside in Assam’. The mover of the bill, Gopalaswami Ayyangar, in his reply was firm in pointing out that, the sword of eviction and the clause of ‘undesirability’ under the Act, when promulgated, would not apply to people, “who subsequent to the partition of the subcontinent on the 15th of August, 1947, have migrated in fear to Assam, because of disturbance in Pakistan or their fear of their being badly dealt with in Pakistan.” Therefore when the Act came to be promulgated, the proviso to Section 2(b) read,
‘Provided that nothing in this section shall apply to any person who on account of civil disturbances or the fear of such disturbances in any area now forming part of Pakistan has been displaced from or has left his place of residence in such area and who has been subsequently residing in Assam.’
Though most Indian leaders including Jawaharlal Nehru and Sardar Patel were generally opposed to the migration and settlement of refugees from East Pakistan in India, on principle, trying to talk to their east Pakistani counterparts or on many occasions making insensitive statements about East Bengal refugees, with the hope that these refugees would not migrate to India or even if they had migrated, they would go back to Pakistan, they also fell in line with the dominant pro-refugee and anti-immigrant sentiments of their political compatriots turned fellow Members of Parliament.
When the aggravation of violence on non-Muslims in East Pakistan and against Muslims in some provinces of India led the Prime Ministers of India and Pakistan to meet in April 1950 it forced the Government to bring a motion in Parliament to discuss the critical situation in East Bengal in Parliament. Probably for the first time, Jawaharlal Nehru, initiating a discussion on the motion Re: Bengal Situation on the 7th of August, 1950, stood in Parliament to point out that,
my opinion is that the Hindu minority in East Bengal feels – it is an important fact how they feel- insecure and , therefore they cannot settle down, you might say and there is a tendency to come away or even if they remain, they do not know how long they will remain. That is a fact…,
and further pointing out that,
…10 million people, nearly a crore of Hindus are still in East Pakistan. It is a very large number. It is true that a large number of middle class people have come over; it is also true that specially after these February– March disturbances, people like teachers came over. Schools were closed; educational institutions ceased to function, so that the normal life of the minority community was completely upset there. There were children without schools and school masters without children and so on…
But that was only the tip of the iceberg. As the Hindu middle class left their homes in East Pakistan, the brunt of violence fell on the lower classes and the Dalits who were still holding on to their homes which came to be detailed in the resignation letter of the Dalit leader Jogendranath Mandal of East Pakistan from his post of Cabinet Minister of Pakistan and subsequent statement on his migration to India who pointed out that,
“neither the East Bengal Government nor the Muslim League leaders were really earnest in the matter of implementation of the Delhi Agreement…Commission of thefts and dacoities even with murder is going on as merrily as before. Thana officers seldom record half the complaints made by Hindus. That the abduction and rape of Hindu girls has been reduced to certain extent is due only to the fact that there is no caste Hindu girl between the ages of 12 and 30 living in East Bengal at present. The few depressed class girls who live in rural areas with their parents are not even spared by Muslim goondas. I have received information about a number of incidents of rape of scheduled caste girls by Muslims. Full payment is seldom made by Muslim buyers for the price of jute and other agricultural commodities sold by Hindus in major market places. As a matter of fact there is no operation of law, justice or fair play in Pakistan, so far as Hindus are concerned.”
The situation in East Pakistan was not a secret and the Government of India was aware of the situation on the ground across the border as the Prime minister in a statement on the exodus of people from East Pakistan between 1947 and 1949 had pointed out, in March, 1950, that, “1,600,000 people had thus been forced to come away from East Bengal to West Bengal during the period ending on 31st December, 1949.” While Nehru was keen to present a sober and a balanced picture of the background for the incessant migration scenario in the subcontinent by 15th November, 1950 when he rose to speak on the President’s address to Parliament and pointed to the refugee situation he assured the members of Parliament that,
…the hon. Member referred to the question of citizenship. There is no doubt, of course, that those displaced persons who have come to settle in India are bound to have their citizenship. If the law is inadequate in this respect, the law should be changed.
The Government of the day had indeed come a long way since April of the same year when the Prime Minister was steadfast in advocating the repatriation of the refugees from East Pakistan and was reticent to ensure their rehabilitation in India.

In lieu of a conclusion

While many individuals and organizations have charged the present Government and the passage of the Citizenship (Amendment) Bill with the violation of the Constitutional spirit, mandate and the principle of secularism that was far from the truth for it was as much the realization of the Nehru’s promise to Parliament of 15th November 1950 as also the wishes of the founding members of the Constituent Assembly and the Parliament belonging to Assam itself. The protests that followed the passage and notification of the Act probably reminded the Indians that despite the passage of time, the wounds of partition and the antagonisms of an earlier era have not healed. Probably the promise of the midnight hour and the sentiments that nurtured the Constitution making and the provisions of the basic documents according to which the country would be governed had long been forgotten. Though the attempts of the post-colonial government has been to move beyond the predicaments of partition of India in 1947 it is something that we are yet to reconcile with.

The writer is a faculty member at Department of History, North-Eastern Hill University, Shillong. Opinions expressed are personal

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The Gauhati High Court on Friday issued notices returnable on June 3 to respondents including the governments of Assam and India in a set of writ petitions that challenge the holding in prisons of those who have fallen afoul of measures meant to control illegal immigration. Lawyers representing different sections of Assam’s civil society have come together to file three such petitions before the court.

Apart from the constitutional objection, the harm bit mainly comes in because of the other thing that’s supposed to follow – the National Register of Citizens a.k.a. NRC. This has only been done in one state so far, Assam, and 1.9 million people have been left out of the final NRC list because they could not prove through documents that they or their direct ancestors were citizens of India before March 24th 1971, which was the cut-off date. Over 1.2 million of the 1.9 million are estimated to be Hindus. The BJP leaders in Assam had promised the Citizenship Amendment Act would be passed to ensure no Hindus were left stateless because of the NRC. The CAA provides a backdoor for the NRC excluded Hindus, but there’s a catch or two. They will have to claim that they are illegal migrants from Bangladesh, Pakistan or Afghanistan in order to apply via CAA. They would presumably have to show some proof of identity as well, showing when and where they came from, since there is a cut-off date. The CAA is not applicable for Indians who cannot prove citizenship and it is not applicable for those who came after 2014. Therefore, the Indians left out of the NRC because of lack of documentation have no option but to fight cases in the Foreigners’ Tribunals and courts. If they lose the cases eventually, they will be sent to detention camps or, if any country accepts them, they will be deported. Poor people without the means to fight cases will be worst hit.

If the CAB is to be tweaked to allow the ILP to prevail over it, it effectively means that all the non-natives without any eligible document to prove Indian citizenship in the ILP states will be settled in the neighbouring States of Assam, Manipur, Meghalaya, and Tripura.
The futility of the ILP stands exposed from the fact that the ILP States had more population growth rate than the non ILP states except Tripura.

What is most likely to follow is a painful process of going through the legal grind for the excluded who are not saved by the Citizenship Amendment Bill – assuming the Bill will save anyone at all. That too remains a matter of doubt as there are legal and procedural issues.

At the end of it all, thousands of poor people will be further pauperised by the costs of legal fees. Some may die in detention camps or commit suicide. India’s close ties with Bangladesh will be severely tested. The Assamese jatiyobadis may earn an international reputation for xenophobia.

It is also important to note that the fundamental legal bases of the two Registers, viz the NRC of 1951 and the NRC of 2018 are distinct and separate. While the NRC, 1951 was completed under the Census Act of 1948 which makes the register a contemporaneous document prepared by field staff engaged in course of census operation and was legally “not open to inspection nor admissible in evidence” (ALR 1970 (A&N) 206 para 15), admittedly the current NRC is being prepared under the Citizenship Act 1955 read with the Citizenship Rules, 2003. To the best of our knowledge, the Courts and the various orders and judgement have not as yet constructed any legal framework to reconcile the two Acts which have distinct origin and purposes. Neither has any legal framework been evolved to legitimize the use of the NRC,1951 as evidence in matters governed by the Citizenship Act by any amendment or an enabling clause.
The matter is more complicated now as we know that the district offices have not maintained the NRC-1951 data for all the districts as was mandated in the Census of 1951 and the matter is today admitted by the government of Assam as well. While the government was forced to rely on other documents produced by the people, from those districts where the NRC 1951 was absent or fragmentary, to enlist their names in the NRC, 2018, it therefore raises serious questions on the legality or legitimacy of ‘updating’ NRC,1951 in the province of Assam as a whole.

The most loathsome thing is – this is happening here in Assam, just before our eyes and we are witness to its spread.
For the last five decades, the most dominant narrative in Assam has been the identity politics.
There is a genuine existential fear among the community of Assamese people because of the longstanding influx problem.
What has happened is only politics is being played on this and nothing worthwhile has been done to safeguard the existential fear of the community.