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NRC: Why the Supreme Court ruling could be a prelude to ethnic cleansing

File photo of people checking their names on the draft list at the National Register of Citizens centre at a village in Nagaon district
The publication of the second draft of the National Register of Citizens for Assam, may have been a judicially monitored exercise. Its indiscriminate application to deny citizenship to over four million inhabitants of the state is cause for grave national concern. At one end, there have been warnings of a civil war and at the other there has been loose talk about deportations and concentration camps. There is, however, no final solution to a problem that cannot be examined without its historical, geographical, economic and political contexts.

History of Assam state

Situated at the confluence of two ancient centres of civilisation -- the Indian Sub-Continent and China -- Assam has a unique history of the assimilation of peoples and cultures. In 1228, the first Ahom King, Sukaphaa established his Ahom Kingdom near today’s Nagaland, after migrating from Mong-Mao area, which is now in China. A little earlier, in 1206, the Governor of Bengal, Bhaktiyar Khilji had marched along the Brahmaputra in his ill-fated invasion of Tibet. He was allowed to pass through the Kamrup kingdom, which controlled areas around the Brahmaputra. 

The Brahmaputra accommodated Ahoms and Muslims alike. Ajan Fakir and Shankardeb both were part of its cultural heritage. Kingdoms and dynasties  arose and fell for six centuries, till the Ahom empire consolidated but eventually lost to the kings of Burma between 1821 and 1825. In 1826, British signed the Treaty of Yanbado with the Burmese Kings, under which they acquired Assam from Burma along with areas of the Rakhine (Arakan), which today is the epicentre of the Rohingya problem in Myanmar. Most of the seven sister states of the north-east were mere divisions, districts and agencies  within that area. 

The Assam areas went from being administered by a chief commissioner to being added in 1905 to the newly created province of East Bengal and Assam, with its capital at Dacca. It emerged as a separate province with its capital in Shillong in the 1912 reorganisation of Bengal. At the time of independence and partition, the Sylhet district of Assam province opted by a referendum to go with East Pakistan, while its Hindu majority, Barak valley opted to stay with India. Some Muslim majority districts like Dhubri, which controls access to the chicken-necked North-East were persuaded to remain in India by the sagacity of Assamese statesmen like Gopinath Bordoloi.

When Pakistan began to crumble into two halves after its elections of 1970, the West Pakistan army began a crackdown on East Pakistani dissidents. Millions fled as refugees to neighbouring India, primarily to the states of West Bengal and Assam. On March 25, 1971, the Pakistani army crackdown on Dacca University, and the massacre therein led to events that culminated in the emergence of the new nation of Bangladesh. Sheikh Mujibur Rehman and Indira Gandhi signed an accord, enabling the return of Bangladeshi refugees who had migrated to India post March 25, 1971.
The compendious north-eastern areas of India were also  reorganised in December 1971 with the passing of the North-Eastern Areas (Reorganisation) Act, 1971, Act No. 81 of 1971, which provided for the establishment of the states of Manipur and Tripura, and for the formation of the states of Meghalaya and of the then  Union territories of Mizoram and Arunachal Pradesh. Thus the Assam state as we know it today,emerged only in 1971 and is still subject to boundary claims from its neighbours like Nagaland.

While commonality of language ensured an assimilation of Bengali refugees in West Bengal, in Assam they were seen as ensuring Bengali dominance. The ruling Congress party was seen as being backed by a voting troika of Ali (Muslim) coolie (tea plantation labour)and Bengali. Assamese and Ahom identity issues began to simmer particularly after 1971. This led to a state-wide student movement called the Assam Agitation, which lasted six years, from 1979 to 1985. 

The Assam movement focused attention on the issue of illegal immigration. However, what inspired the unprecedented political mobilisation in the state was the ethnic Assamese fear of becoming a minority in their own state. Thus, alongwith the refugees, almost all other minorities –- religious as well as linguistic -– were branded as illegal migrants. This narrative has continued over the years. This fear was ratcheted up in the years leading up to the Nellie Massacre of 1983. It was finally brought to a close in 1985, with the signing of the Assam Accord as a Memorandum of Settlement (MoS) among the representatives of Government of Assam, Government of India and the leaders of the Assam Agitation to bring about peace in the state. A number of stipulations in the Accord have been given effect to. 

Citizenship and  Assam
Citizenship has always been a vexatious issue. Speaking about it before the Constituent Assembly, Dr Ambedkar said, “Except one other article in the draft Constitution, I do not think that any other article has given the drafting committee such a headache as this particular article. I do not know how many drafts were prepared and how many were destroyed as being inadequate to cover all the cases which it was thought necessary and desirable to cover.”

Ultimately, the framers of our Constitution made stop-gap provisions on citizenship. The Parliament was left with plenary powers to make laws of a more permanent nature. The Parliament did so in 1955, with the Citizenship Act. Defining Indian citizenship was, in the context of Assam’s history, thus even more problematic. The  Assam province of 1947 had a diversity  hardly matched by any other geo-political entity of a similar size. Migration within British India became a source of social and political conflict since at least the middle of the 19th century. Specific provisions to deal with Assam were demanded even in the Constituent Assembly. A special law for the State of Assam, i.e. the Immigrants (Expulsion from Assam) Act of 1950, was enacted soon after the commencement of the Constitution -– even before a citizenship law had been drafted for the rest of the country.  

A sixth category of citizenship

Under the Citizenship Act, citizenship of India can be acquired by birth, by descent, by registration, by naturalisation or by incorporation of territory. Pursuant to the Assam Accord, the Citizenship Act was amended in 1986 to insert Section 6-A. The amended act laid down that all persons of Indian origin who came to Assam before January 1, 1966 from a specified territory (meaning territories that included in Bangladesh) and had been ordinarily resident in Assam would be considered citizens of India. 

The amended provision also allowed persons of Indian origin from the specified territories, who came between January 1, 1966 and the March 25, 1971, and had been resident in Assam since, and had been detected as “foreigner”, to register themselves as Indian Citizens. However, citizenship would commence 10 years from the date of detection as a foreigner.

An uneasy peace

Universal revulsion after the Nellie massacre and the signing of the Assam Accord ushered in a new phase. It was the phase when the masses were still passionately committed to the “foreigners issue”. However, they were no longer willing to participate directly in violent activities. The issue thus festered on. Its solution was now sought through political means. Numerous elections have been fought on the plank. A constant demand has been one for the updation of the National Register of Citizens (NRC). 

The NRC, a register containing the names of Indian citizens, was prepared in 1951. It is not a public document, but a administrative (secret) document not open for inspection, that was prepared by the census enumerators from the census slips of 1951.

Over the years, numerous attempts have been made at updating the NRC. In 2005, a pilot project for preparation/updation of NRC was started in Barpeta Revenue Circle and Chaygaon Revenue Circle in Barpeta and Kamrup (R) Districts respectively. However, a large number of people protested against the anomalies in the process. The process was ultimately stopped in 2010.

The Supreme Court steps in

Around the same time (2009), certain petitions were filed before the Supreme Court challenging the validity of Section 6A of the Citizenship Act. Certain other petitions sought a time schedule for the updation of the NRC. 

The cases before the Court presented a classic instance of the “Political thickets” doctrine. Questions of nativism, identity politics and xenophobia were brought up, after 30 years of the enactment of amendments to the Citizenship Act. The Supreme Court has usually declined to get into the political thicket. In this instance, it did.
In doing so, it made certain observations which legitimised the scare-mongering that politicians had resorted to for years. For instance, the Court in Assam Sanmilita Mahasangha noted that: “As a result of population movement from Bangladesh, the spectre looms large of the indigenous people of Assam being reduced to a minority in their home state. Their cultural survival will be in jeopardy, their political control will be weakened and their employment opportunities will be undermined.”

These observations are based on little evidence and position themselves on a unidimensional approach to Assamese history as seen through Axomiya eyes.The Court also passed wide-ranging directions for the improvement of border security and setting up of foreigners’ tribunals. Strangely, it also directed the Union Government to enter into negotiations with the Bangladesh Government, to streamline the process of deportation. It is difficult to think of another instance of a Constitutional Court passing directions which lie in the realm of foreign policy.

The National Register of Citizens

It is the last of the Court’s directions, which is most problematic. Starting December 2014, the Supreme Court took upon itself the task of updating the NRC. The task entails verifying how many of Assam’s 32.9 million people are legal citizens of the state.

Eligibility to be included in the updated NRC would be ascertained based on the 1951 NRC, Electoral Rolls up to 1971 and, in their absence, certain admissible documents issued up to the midnight of March 24, 1971. More than 50,000 people have been employed for the updation process. Over Rs 12 billion of public money has been spent on the exercise. At first blush, the process for updation looks meticulously designed. The devil, as ever, lies in the detail.

Other than the the lists of 1965-66 and 1970-71, no voter lists have been made public. Those relying on these voters lists have been unable to get their status verified. The system is plagued by inconsistencies. The first draft of the registry came out in December 2017, and enlisted 19 million people -— less than 60 per cent of the applicants -— as Indian citizens. The latest draft, which came out last week, excludes approximately four million people.

Mainstream and social media are awash with stories of names of genuine citizens being absent from the list. Several people whose names were not in the draft have claimed that they had submitted the same set of documents as their family members to establish their claim to citizenship. However, while names of some family members have been included in the NRC, names of others have been left out.

The danger ahead

The Assam movement had more or less one-point programme -- the expulsion illegal migrants from East Pakistan in a movement that came to be known as the ‘videshi kheda andolan’, or the movement to drive out the foreigners. All spokespersons of the movement agreed that the numbers of such illegal migrants were in millions. Frequent claims added up to more than the combined population of the non-native Muslims and the Bengali Hindus residing in Assam. 

Massive pogroms against the religious and linguistic minorities were masked under the facade of peaceful mass movement. The facade could be successfully maintained because the overwhelming majority of native, Assamese-speaking Hindus supported it. Though the issue has remained quiet for almost three decades, tensions have continued to simmer under the surface. 

In the circumstances, one wonders if the Supreme Court’s decision to take over the NRC updation process was well-intentioned, but ill-advised. Politicians from all parties have been quick to pronounce the exercise as a Supreme Court project. Certain others have also tried to milk the issue. The BJP President has gone on record to call the four million people left out of the draft ‘ghuspaithiye’, or infiltrators. This clarion call, has been amplified by propaganda channels, including an obnoxious anchor from the same state. Those who are not Assamese are presumed to be Bangladeshis, with no human rights, and existing on the sufferance of the majority. This campaign on television and social media has taken off, even as the Supreme Court itself has directed that no-coercive action be taken against the people whose names have been left out of the list. 

The pogroms of the early 1980s were started exactly in the same manner -– by calling people foreigners and going after their lives and property. The Supreme Court’s decision in Assam Sanmilita has given a judicial stamp to a dubious process. One only hopes that the events of 1983 do not repeat themselves in 2018. The Supreme Court judgment, in this case may in some quarters be treated as a judicial prelude to ethnic cleansing. The time has come for the Supreme Court, to unequivocally stand up for the last, the lost, the least, the left out and the looked over. 
The authors are lawyers who practise in the Supreme Court. They tweet @sanjayuvacha & @parahoot

Disclaimer: Views expressed are personal. They do not reflect the view/s of Business Standard.

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