Oct 18, 2019

By Sanjoy Hazarika

(thehinducentre.com)

He demand for a National Register of Citizens (NRC) grew out of concerns voiced over decades in Assam and other North-eastern States that informal migration from Bangladesh would alter the area’s demography and political representation, while damaging its cultural and social fabric. The Assam Accord of 1985 fixed March 25, 1971, the date of Bangladesh’s creation, as the "cutoff" date: those who came later were "foreigners" (Bangladeshis) and therefore, to be sent back. Given the difficulties the task posed, an exercise which was put on the back burner by successive State governments was brought to life when the Bharatiya Janata Party (BJP) came to power in Assam in 2016, largely because it could be fitted into the party’s ideological agenda, based on the assumption that a vast majority of those who would be declared foreigners would be Muslims. Instead, the number of Hindu "foreigners" outnumber their Muslim counterparts. As those who have not been able to make it to the NRC list fill insalubrious detention camps, the crisis has only grown.

In this article, noted journalist and human rights activist Sanjoy Hazarika, tracing Assam’s history and politics from pre-Independence days, points out, that there is neither an agreement with Bangladesh on deportation, nor can anyone, by law, be declared a non-citizen until proven so. He also makes an impassioned plea for accepting all those already in the country as citizens, while securing the borders so that future migration is halted. He also cautions the central government against pushing through the Citizenship Amendment Bill that seeks to make a distinction on the basis of religion.

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In that great novel in verse, Marmion: A Tale of Flodden Field¹, Sir Walter Scott penned many powerful and memorable lines of which, perhaps, the most widely quoted is "O what a tangled web we weave."

To quote Sir Walter in an article about the National Register of Citizens (NRC) in Assam, published 211 years after that epic poem, may cause surprise.  But the issues out of which the NRC has grown are complex and tangled, made more so by its design, the manner of its implementation and the periodic directives given by the Supreme Court which has sought to drive this process.

The end result is that the "final list" of people published on August 31 this year is nowhere being such — it is not even a bucket list and has led to a volatile mix of outrage, embarrassment, more suspicion, defiance, stress and further confusion. Faulty documentation has made the task very complex, creating a conundrum for the State and central governments that are trying to deal with the confusion by taking positions completely at variance with earlier stated positions of the ruling party. How has this come to pass?

The NRC grew out of concerns voiced over decades by people and representative organisations in Assam and other North-eastern States about informal migration (widely called illegal migration) from Bangladesh. Many believed that this migration would lead to demographic changes, and adversely affect the area’s cultural and social fabric as well as political representation.  That these concerns are not new is seen in gleanings of contemporary history which have been extensively researched and written about. It is important, therefore, to review the working of the NRC and the issues that have grown around it in a historical, political and social context. The narrative promoted by a handful of political parties on one side, and other parties and rights advocates on the other only promotes oversimplification, binaries and divisions and doesn’t recognise the extremely sensitive complexities. My view has always been that it is the multiplicities of wide-ranging identities which lie at the heart of the current crisis.  And without that comprehension, those involved are destined to make a greater mess and sharpen confrontations.

So, a few basic facts from history to start with:

• The British encouraged migration and labour from the former East Bengal (later East Pakistan and, then, Bangladesh) to clear the wastelands in the Assam valley for productive farm use and settlement as well as to build basic infrastructure such as roads and railways .
• Extensive in-migration followed the policy of successive pre-Partition Muslim League governments under Sir Mohammad Saadulla to increase the Muslim population of the lower Assam districts neighbouring East Bengal (I refer here to Sir Mohammad’s letter of 1945 to Liaquat Ali Khan², then number two to M.A. Jinnah in the Muslim League hierarchy, boasting that “in the four lower districts of Assam Valley, these Bengali immigrant Muslims have quadrupled the Muslim population in the last 20 years”). Interestingly, Saadulla, himself an Assamese Muslim originally from Golaghat in Assam, unlike the settlers, chose to stay on in India after Partition, joined the Congress Party and was sent to Parliament!
• The in-migration led to a furore in Assam, triggered by the land settlement policy promoted by Saadulla. This policy was amended as a result of an all-party conference which put a ceiling on the land an individual could hold and redefined the concept of landlessness: those holding less than eight acres of land could apply for more if they were either 'indigenous' or migrants who had come to Assam before 1938. Migrants who were settled in forests were to be evicted.
• In-migration became an election issue in the pre-Partition poll in Assam. The Congress Party, at that time, campaigned and won an overwhelming majority on the basis of "Assamese nationality and culture" claiming in its manifesto that the "immigration or importation of lakhs of Bengali settlers on wastelands has been threatening to destroy the distinctiveness of Assam and has, in practice, caused many disorders in its administration."
• The Congress changed its policy in the post-Bordoloi years, and this led to a tumultuous period — 1979 to 1985— when the Assam Movement against "illegal migration" paralysed the State, toppled governments, propelled a student leadership into the limelight and ultimately to power. The movement set in motion a series of cataclysmic events such as the Nellie massacre, the Gohpur riots, the violence at Goreswar and elsewhere. Thousands died in those tragic times. The clashes pitted numerous ethnic and religious groups against each other.  The key issue revolved around identity rooted in land, the same concern that had sparked confrontation in the 1940s.

• The tripartite Assam Accord of August 1985³ between the Centre, the State government and the agitators sought to calm the waters by promising economic development, political protection and patronage. In a critical move, it redefined the notion and nature of citizenship as an exception for Assam by fixing March 25, 1971, the date of Bangladesh’s creation, as the point of departure — anyone who had come before then was deemed to be an Indian while those who came after that "cutoff" date were foreigners (Bangladeshi) and therefore, to be identified and sent back. This was obviously easier said than done because legal formalities had to be designed for this unique situation. The Citizenship Act was amended to include this clause in  December 1985 (known as Clause 6A when two pages of the entire Citizenship Amendment Act were given over to the special situation of Assam); later in 2003, children (from any part of India) could qualify for citizenship at birth if either of its parents was an Indian national and the other was not an illegal migrant (author’s emphasis). But there was still no clarity on the number of 'foreigners' in the State. Some outlandish figures were floated, ranging from 'crores' of Bangladeshis to the more reasonable lakhs. Meanwhile, nationalistic and religious sentiments were stoked, especially by a jingoistic media. No one was clearer or wiser; instead, everyone was more stressed.

• That's why the NRC was deemed important, and nearly 30 years after the signing of the Accord, the ideas in it were revived, and a political consensus developed on the need for such an exercise as the All Assam Students Union (AASU) kept nudging the Centre on redeeming its promise.

'Be careful what you wish for'

Today, several years after the exercise began under a Congress regime, it was fast forwarded by the leadership of the Bharatiya Janata Party (BJP) once it came to power in the State in 2016, with vociferous support from the Centre. But the situation continues to be fraught with stress, irresolution and confusion. For decades, many in Assam and in other parts of India have believed that it is the Bangladeshi Muslims who have been making the illicit border crossings and settling down in the State. This narrative has driven the calls for protection of land, culture and society.  Even the Supreme Court in 2005 spoke of such hotly contested political issues as "infiltration" and "unabated influx" in a judgement that many rights’ lawyers and activists see as substantially problematic.

As the economist Lord Meghnad Desai wrote⁴ presciently with regard to the NRC: "Be careful what you wish for. When you get it, you may not like it." He was referring to the issue of numbers -– some feel that 1.9 million or 19 lakh is too large; others, especially in the BJP and its regional ally, the Asom Gana Parishad (AGP) as well as the AASU, that the figure is too small. "Alas, once you start counting, guesswork stops," Lord Desai continues, ending with the advice: "The easy (and statistically sound) way would be to say no one will be excluded whatever their papers."

This is the not-too-comfortable situation in which the Government of India, represented by the Ministry of External Affairs and the Ministry of Home Affairs, finds itself. Now, both ministries, led by close confidantes of Prime Minister Narendra Modi, have issued categorical statements that are at clear variance with the long-held position of the ruling party which is also in power in Assam.

For one, Bangladesh has been assured, not once but several times, that the NRC exercise is an internal matter and will not impact Bangladesh. This assurance was first given by the External Affairs Minister on a visit to Dhaka, and then by the Prime Minister himself in a conversation with his Bangladeshi counterpart Sheikh Hasina Wajed⁵ on the sidelines of the U.N. General Assembly meetings in New York as recently as in the last week of September this year. This rules out deportation because there is no such agreement between the neighbours.

The second assurance is that no one can become a non-citizen until proven so: if anyone is "excluded", that person doesn't automatically become non-Indian. There is now a 120-day period in which those who do not make it to the list can appeal against their exclusion before some 200-plus Foreigners’ Tribunals, a quasi-judicial system which exists only in Assam and which have been set up to deal with such appeals. Several of these tribunals are to be headed by young lawyers with seven years of practice, raising questions about the depth and extent of their judicial knowledge. If an appeal is rejected, the affected person can appeal to the High Court, and finally to the Supreme Court. This is a stressful, long and arduous process which can go on for many years, given the backlog in the system.

The government⁶ has also pledged free legal aid through the accredited lawyers on its District Legal Services Authority (DLSA) across Assam and the State Legal Services Authority to all those who do not make it to the list. So has Assam Chief Minister Sarbananda Sonowal on a number of occasions. This is a significant development as many of those excluded are vulnerable, distressed and poor people who live a marginal existence and cannot afford legal representation. One hopes that the lawyers and researchers who have been supporting those persons who have suffered exclusion should also participate in this effort and hold the government to its word. Lawyers, from one side or the other, should not look at the religion of the victim.  Some activist groups have over the past years campaigned extensively around the issue of victimhood of minorities. Unfortunately, this placed the same conundrum before several outstanding and highly respected rights’ campaigners as those who were driving the campaign for exclusion on the basis of religion.

Binit Marapache, son of the late Yam Bhadur who fought in Indo-China war 1962 from Gorkha Regiment, shows his father's medal, at Balaparai village in Baska, Assam, on September 13, 2019. Marapache and his brother's name were not included in the final list of National Register of Citizens (NRC) in Assam. Photo: PTI.

But the NRC results of August 31, 2019, flew in the face of long-established concepts and narratives: those excluded 'included' 11 lakh Bengali Hindus, seven lakh Muslims while the balance are local tribes and other ethnic groups. Consequently — and unsurprisingly — the process of appeals has run into a major challenge from Bengali Hindus, numerous tribal groups and the Gurkhas. Many of them do not wish to appear before the Foreigners’ Tribunals since they say they are Indians and stress, as in the case of the Gurkhas, that many of their kin have laid down their lives for the land and nation.  This has created a new legal challenge: what will happen if lakhs of people refuse to go before the newly minted tribunals? How will their issues be resolved?

The Election Commission of India (ECI) has declared that those excluded will not be struck off the voters’ list or be classified as the D (Doubtful) Voter, another unique category for Assam that has been in place since the 1990s. These are people who have been declared as foreigners; many of them have been forced to fight long battles to recover their lost identities and dignity.   The ECI has taken the right decision for without resolution of one status, those who are off the NRC cannot be forced into double jeopardy.

While this process continues, there are other issues that need to be resolved. For what makes the case of Assam — and, indeed of West Bengal, Meghalaya and Tripura — truly unique is that they are contiguous to Bangladesh, a new country which came into being after a bloody birth in 1971 that tore Pakistan apart.  There are those who are pressing for a cut-off date of 1950, when the Constitution came into place or 1955, when the Citizenship Act (and its subsequent amendments) – as exists for the rest of India — came into being.

There is no such comparable development on any of India’s other borders except the one it shares with Tibet. When the Dalai Lama came to India in exile in 1959 and was followed over time by tens of thousands of his followers, they were issued refugee status papers and travel documents while some have become naturalised Indian citizens.

Yet, without the core issue of citizenship being decided by a Constitution bench, a two-member bench of the Supreme Court, headed by the Chief Justice — who happens to be from Assam —issued numerous directions to the NRC coordinator resulting in an extremely challenging situation. Perhaps, this was a job that could have best been left to the Registrar General of India, who heads one of the best data-gathering operations in the world, the huge and complicated decadal census, and whose office is technically equipped to do the job. Instead, it has been handled by an army of 50,000 amateurs, with a budget of above Rs. 1,500 crores that has eaten into not just taxpayers’ money but time and energy, apart from creating high degrees of stress and a deep sense of discrimination and deprivation.

The political consensus in Assam was for an NRC that would help heal the fissures and address fears that go back several decades.  That was perhaps too much to hope for, given the nature of politics and politicians. 

Citizenship Amendment Bill: Different Takes

A new complexity has developed out of the declaration that the Citizenship Amendment Bill (CAB) will be raised again in Parliament.  This is a piece of legislation that cannot pass muster in a Constitutional Court that is true to its salt for it seeks to divide illegal immigrants on the basis of religion. This flies directly in the face of the Citizenship Act (which does not stress religion) of 1955 as well as of fundamental rights enshrined in the Constitution.  In short, the proposed amendment would fundamentally change the Citizenship Act, which has formed the basis of India’s citizenship regime since it gained independence from the British.

The amendment, if included, will ensure that select "persecuted minorities" (Hindus, Christians, Parsis, Sikhs, Buddhists and Jains) from the neighbouring countries of Bangladesh, Pakistan and Afghanistan can become citizens in India after six years of residency. Other groups will have to wait 11 years to become naturalised citizens.

The Citizenship (Amendment) Act of 1986 specifically deals with Indian citizenship in Assam. The new CAB would negate the Citizenship (Amendment) Act of 1992 which allowed for persons born outside India to be considered as citizens of India by virtue of Citizenship by Descent if either of the parents was a citizen at the time of birth.

Already, representative groups and the Nagaland Chief Minister Neiphiu Rio have declared their opposition to such a measure: Rio made his objections clear at the fourth NEDA (the BJP- sponsored North Eastern Democratic Alliance), conclave in Guwahati in September 2019. The Centre's emissaries are working hard at hammering out some sort of a peace agreement with the major Naga political group, the National Socialist Council for Nagalim (I-M), which could alter the power equations in Nagaland. How this will play out in the rest of the region is unclear but the CAB could trigger old fears among small but powerful ethnic groups which have a long history of opposition to the idea of India.

There are other groups of unfortunates in the North East whose cases have figured in the media from time to time: for instance, last February, the Centre told the Supreme Court that there were 938 persons in eight detention centres, which are essentially designated spaces inside existing prisons.  Many have struggled for years to get out. From various accounts, some are mental wrecks; a number have died after years of incarceration and some women, pregnant at the time of detention, have even given birth inside these centres. This is a bleak landscape not made any better by the announcement of and preparation for detention camps.  Who will inhabit these camps? Who will decide who will be sent there? How long must they live there? A senior government figure in Assam told international diplomats in Delhi that one of the ideas is to transfer those living in very horrific conditions in the eight detention centres to the better facilities proposed in the detention camp being built in Goalpara. But the very idea of such detention camps should be anathema to anyone who believes in the rule of law and abhors impunity.

In addition, there are those who have been trafficked into India and, having been rescued, languish in the “no man’s land” of prisons and protection homes as the researcher, Rimple Mehta, describes in her poignant book, Women, Mobility and Incarceration: Love and Recasting of Self across the Bangladesh-India Border⁷.

What is to be done? For a start, all groups should not make things worse than they are and rein in their rhetoric, especially with demands as far-fetched as detention camps in Karnataka and inflicting an NRC exercise there. Rumours are enough to fuel panic, stress and fear, create law and order problems and give opportunities to the venal and lawless.

There needs to be a political compact, no matter how fragile, in Assam on how to make the future of the region peaceful (and hopefully prosperous), anchored in an inclusive, not an exclusionary, approach.  Otherwise, the toxic mix of prejudice and poor data in a multi-layered, highly sensitive region could drive the desperate into the ready embrace of violent extremism. Such a danger exists and lies within India as well as across the border. Media anchors, especially, need to tamp down their divisive rhetoric.

Sir Walter Scott’s full quote rings true here:

O, What a tangled web we weave

When first we practice to deceive

Need for Consensus:  A Round Table Conference

We are not a nation built just by laws, or even by just laws, but by concord, no matter how difficult the times. In looking at suggestions for a way forward, I turn to two great apostles and nation builders, Guru Nanak and Mahatma Gandhi. Guru Nanak, whose 550^th anniversary is being celebrated had said, "I am neither a child, a young man, nor an ancient; nor am I of any caste.” And Gandhi, whose 150^th birth anniversary is being commemorated, on the eve of his final fast in January 1948, had said, while urging people not to dissuade him: “…all friends … should turn the searchlights inwards, for this is essentially a testing time for all of us".

It was Gandhi who gave strength and support to Gopinath Bordoloi when the latter advocated a certain degree of autonomy for Assam. It was a difficult time for Bordoloi as he was simultaneously having to resist pressure from the Muslim League, prevarication by the Congress leadership and British stratagems to divide the people. Despite ill-health, Bordoloi had a clear vision for his State and fought for it. New Delhi rebuffed him on key issues, setting a tradition for the unequal relationship between the Centre and Chief Ministers from the State and other parts of the North East.  He had demanded a major share of the royalty accruing to the Centre from oil production and a substantial amount from taxes on tea, the key revenue earners for Assam. Both pleas were rejected, although Delhi’s consent would have helped strengthen the State’s economic base. Undeterred, Bordoloi built the foundations of modern Assam in a burst of energy during his brief tenure (1946 to 1950) by founding several major institutions that continue to serve the region well: Guwahati University, the Guwahati Medical College, the Assam Veterinary College, a radio station, the police training school and the Guwahati High Court. 

In that spirit, I would urge the convening of an All-Party Round Table Conference to look at the issues of migration, citizenship, rights and identity. This work cannot be done just by legal experts, no matter how brilliant. The courts have not thrown light on the subject but, instead, created a legal tangle and acute stress on the ground. The Round Table needs to be attended by political actors and citizens with a stake in peace making, not creating further divisions, as well as a sense of empathy, equality and justice. The conversation must be built around rights, entitlements and the core Constitutional principle of equality. All groups need to be represented but given the differences which exist, perhaps there can be a convening of several organisations at different times as has been done in the case of the ceasefire groups in Myanmar, before bringing all groups together. 

(Although Myanmar is most known in recent years for the horror that its armed forces have inflicted on the Rohingya Muslims of Rakhine State, forcing over a million to flee to refugee camps in the Chittagong area of neighbouring Bangladesh, it has made significant efforts to reduce its long-enduring armed conflicts with ethnic insurgencies that have exacted a high human cost, stalled economic growth and broken political representation.

Over years of steady discussions, the previous military regime and then State Counsellor Aung Sang Su Kyi kept negotiations going with armed groups resulting in a ceasefire agreement in 2015 with 10 rebel factions. But the process has been patchy and some conflicts continue as do talks with one coalition of ethnic fighters).

Differences must be reduced even if they do not disappear altogether. There should be one cardinal rule: each side needs to give space to the other to speak without intimidation or fear of being shouted down.  This is going to be the most difficult part — can there be frank conversation without confrontation?  For this issue needs consensus — without that madhyam, things cannot move forward. It does not need brilliance and brinkmanship, political leverage or money power -– it needs genuine consensus and open minds.

The Prime Minister and the Home Minister need to convene such a meeting to build consensus. It is a time for statesmanship of a high order which will balance the requirements of national security, regional calm and the strengthening of democratic institutions. Otherwise, both in the short-term and long-term, violent extremism emanating from different sides will have far-reaching consequences that will adversely affect both internal dynamics as well as the situation on the borders, placing a huge burden on the capacity of the Indian state to deal with another cycle of existential threats in distant, vulnerable areas.

There is need to reflect on what Rajmohan Gandhi has written about his grandfather, the Mahatma, "Exceptional though not limitless, Gandhi’s embrace of dissent was at heart a recognition of human imperfection"⁸.

It is in that light that we need to view what could be the first agenda of such a Round Table Conference: the future of non-citizens after the long process of identity establishment is over. They cannot be deported, as Bangladesh and India have both made clear.  They know only one homeland. Would not the best and most practical solution be that they continue to live where they have stayed for long? Many could be old or middle aged by the time their cases are resolved.

These groups and individuals cannot be said to be non-productive: they work hard in the fields, on the rivers and in the cities.  Could a possible way forward lie in pursuing the example of the 1985 Accord when a group of 75,000 which had come from East Pakistan were struck off the electoral lists for a decade and then re-instated?

The Indian Constitution does not allow statelessness nor does the Universal Declaration of Human Rights which India has not only signed but helped draw up.

It is not just issues of citizenship and identity that should concern and engage us.  A new Asian architecture is arising in our backyard.  We talk of easier transport arrangements, travel and investments between BBIN (Bangladesh Bhutan India Nepal); we make efforts to Act East and connect to South East Asia, our natural neighbours. Yet, we seem steeped in the attitudes of an earlier era. We encourage international connectivity and investments, cultural events and business summits but are held back by old fears. These are contradictory processes which cannot go hand in hand.

Let there be a consensus on a cut-off date, whether it is 2014 or any other year. The only way of stopping illegal migration is by halting it at the border. It is also the only way that Dhaka will accept that these are its nationals.  A better border management system is needed and the role of the Assam Border Police needs to be reviewed in that light.  No other State has such a policing unit; the Border Security Force (BSF) should be enough.

We need to break the shackles of the past, of hatreds and prejudices which hold us back. New economic growth cannot come if we are bound by old attitudes.  What is needed today is a process that bridges gaps, heals the wounds of the past and encourages dialogue.  There is enough ill-will about. The greater need, now than ever before, is to build goodwill as the basis for a common future. The reality is that our neighbours are here to stay and it’s up to all of us to make that partnership work.

[Sanjoy Hazarika, a specialist on the North-East, is International Director of the Commonwealth Human Rights Initiative (CHRI). Human rights activist, researcher and author of several acclaimed books that include the classic “Strangers of the Mist” and more recently “Strangers no More”, he has made documentary films and designed the innovative boat clinics on the Brahmaputra which reach lakhs every year with health care. Views are personal. He can be contacted at sanjoyha@gmail.com]

References:

[All URLs were last accessed on October 17, 2019]

1. Scott, W. 1808. Marmion: a tale of Flodden Field. London, A.W. Bennett. Return To text.

2. Hazarika, S. 1994. Strangers of the Mist, tales of war and peace from India's North-east, Penguin Books India Ltd. Return to Text.

3. Memorandum of Settlement. 1985. Problem of Foreigners in ASSAM, August 15. [https://assamaccord.assam.gov.in/sites/default/files/swf_utility_folder/departments/assamaccord_medhassu_in_oid_3/portlet/level_1/files/The%20Assam%20Accord%20-%20English.pdf]. Return to Text.

4. Desai, M. 2019. Out of my mind: No winners in the NRC exercise, The Indian Express, September 22 [https://indianexpress.com/article/opinion/columns/no-winners-in-the-nrc-exercise-6017024/]. Return to Text.

5. IANS. 2019. NRC will not impact Bangladesh: Modi tells Hasina, The Economic Times, September 28. [https://economictimes.indiatimes.com/news/politics-and-nation/nrc-will-not-impact-bangladesh-modi-tells-hasina/articleshow/71346030.cms]. Return to Text.

6. Ministry of External Affairs, Government of India. 2019. Statement by MEA on National Register of Citizens in Assam, September 2. [https://www.mea.gov.in/Speeches-Statements.htm?dtl/31782/Statement+by+MEA+on+National+Register+of+Citizens+in+Assam]. Return to Text.

7. Mehta, R. 2019. Women, Mobility and Incarceration: Love and Recasting of Self across the Bangladesh-India Border, Routledge, Routledge Studies in Criminal Justice, Borders and Citizenship. [https://www.routledge.com/Women-Mobility-and-Incarceration-Love-and-Recasting-of-Self-across-the/Mehta-Chakravarti/p/book/9781138039292]. Return to Text.

8. Gandhi, R. 2019. When Gandhi's Magic Failed To Stop Netaji From Seeking A Second Term As Congress President, Outlook, September 25. [https://www.outlookindia.com/magazine/story/india-news-when-gandhis-magic-failed-to-stop-netaji-from-seeking-a-second-term-as-congress-president/302158]. Read More