The return of Donald Trump to the White House shows how demagogues the world over are successfully convincing large swathes of voters that their continuing post-pandemic distress will vanish magically if they get rid of that one evil enemy. Trump identified this enemy as illegal immigrants and others whom he ominously called “the enemy within”, which seems to be the American equivalent of the “urban naxal”.

If Israel and India have both created models of virulent masculinity, as Martha Nussbaum wrote, this is derived from the sense of eternal victimhood that Zionist and Hindutva fundamentalists share, and both direct their aggression at Muslims, whom the Christian colonial project had already conveniently vilified.

Since 2014, a series of measures has sought to demonise India’s Muslim community—the Citizenship (Amendment) Act, 2019, the criminalisation of triple talaq, and the various jehads from COVID and love jehad to land jehad and vote jehad. Even for the Jharkhand Assembly election campaign, the BJP has aggressively raised the bogey of illegal Bangladeshi immigrants robbing tribal lands and tribal women.

That the spotlight would soon turn on the Waqf Board was never in doubt. Hindutva warriors have always spread the jealous narrative of waqf being the largest property owner after the Railways and Army, a carefully cultivated piece of disinformation. If one considers that the Hindu religious boards in the three States of Tamil Nadu, Andhra Pradesh, and Telangana alone control more than 10 lakh acres of land, then the 9.4 lakh acres estimated to be under waqf falls into better perspective; even more so when you consider, as the Congress party’s Rajya Sabha MP Syed Naseer Hussain explains in his interview to Vikhar Ahmed Sayeed in this issue, that even the smallest cemetery and mosque in the country is technically waqf land.

The returns from waqf properties have always been low and not used adequately for the benefit of disadvantaged Muslims. That there is inefficiency and corruption in the management of waqf property is a fact: the 2006 Sachar Committee report had already pointed to it, as it had to the educational, social, and economic backwardness of the Muslim community.

The community has largely been shut out of India’s post-Independence social churn and mobility not only because of historical discriminations, but also because large sections turned inwards and became insular and retrogressive. As the veteran journalist Saeed Naqvi wrote in Being the Other, the average Muslim remains disadvantaged because of “his clerical leadership, which strikes bargains with the political class and keeps the community mired in religion” and “distant from modernity”.

Unfortunately, the community’s overall backwardness becomes fertile ground for the right wing to piously claim that projects such as the Waqf (Amendment) Bill, 2024, are meant to “improve” their living conditions. In reality, there is reason to believe that the Bill’s motivation stems from the baser instinct to “put Muslims in their place”, an objective that has never been a secret since 2014. Just one example will suffice: The Bill wants to appoint non-Muslims to the Central Waqf Council, an inexplicable demand given that no Hindu religious endowment body allows non-Hindus in its governing councils.

There is much that real reform can achieve, but it must be consultative and come with clean hands. Unfortunately, even Jagdambika Pal, the Chairman of the Joint Parliamentary Committee set up to examine the Bill, is accused of riding roughshod over the real stakeholders.

The Muslim response to such “reforms” is captured rather well in this couplet quoted in Naqvi’s book:

Turfatar yeh hai ki apna bhi na jaana

Aur yun hee apna apna kehke humko sabse beygana kiya.

(The irony is that you never considered me your own

But you claimed me as yours until I became a stranger to everyone else.)

With the five-member Constitution Bench headed by Chief Justice of India D.Y. Chandrachud upholding the constitutional validity of Section 6A of the Citizenship Act, 1955, which establishes the criterion for granting Indian citizenship to immigrants from the erstwhile East Pakistan living in Assam, the publication of the National Register of Citizens (NRC) list of 2019 has got the final legal approval. A Division Bench of the apex court had passed a judgment in 2019 ruling that the NRC list would be updated subject to the order as may by passed by the Constitution Bench on the petition challenging the validity of Section 6A.

The section was added to the Act after the signing of the Assam Accord in 1985 involving the Rajiv Gandhi government at the Centre, the State government, the All Assam Students Union (AASU) and the erstwhile All Assam Gana Sangram Parishad.

Key objective of Assam Accord

A key objective of the Assam Accord was to ascertain who was a foreigner in the State. Clause 5 of the agreement stipulated that January 1, 1966, should be the base cut-off date for the detection of foreigners; additionally, it provided for the regularisation of those who arrived between January 1, 1966, and March 24, 1971, but not those who arrived on March 25 and thereafter. The accord also stipulated that once undocumented migrants who entered the State from the erstwhile East Pakistan during the 1966-71 period were detected, they should be disenfranchised for a period of 10 years from the date of registration with the Foreigners Regional Registration Office. Section 6A in the Citizenship Act facilitates these stipulations.

The Assam Accord drew the curtains on the six-year agitation against foreigners. The leaders of the movement initially demanded 1951 as the cut-off year for detection of foreigners, deletion of their names from the electoral rolls, and their expulsion from the State. But they finally settled for March 25, 1971. One section, however, stuck to the demand for 1951 as the cut-off year.

Also Read | ECI wades into fault lines of Assam to redraw electoral map

The Assam Sanmilita Mahasangha filed a petition challenging Section 6A and seeking 1951 as the cut-off year for accepting immigrants as Indian citizens; it also wanted the NRC to be updated.

The State now has two cut-off years: 1971 with respect to the Assam Accord, for the detection of “illegal Bangladeshi migrants”, deletion of their names from electoral rolls, and expulsion; and 2014 for granting citizenship to all non-Muslim “illegal migrants” from Bangladesh under the 2019 Citizenship (Amendment) Act (CAA).

The disposal of petitions challenging the CAA’s constitutional validity, pending before the apex court, will settle the question of whether the State will have two different laws and two cut-off years for determination of Indian citizenship or just 1971 as the cut-off year in accordance with the Assam Accord. Both the Central and the State governments defended 1971 as the cut-off year in their affidavits submitted to the Supreme Court.

In its landmark judgment on October 17, the Supreme Court said: “The cut-off date of 25 March 1971 is reasonable because the Pakistani Army launched Operation Searchlight to curb the Bangladeshi nationalist movement in East Pakistan on 26 March 1971. Migrants before the operation were considered migrants of the Indian partition.”

“Undocumented migrants could be registered as citizens under Section 5(1)(a) of the Citizenship Act before it was amended by the Citizenship (Amendment) Act 2003 to exclude ‘illegal immigrants’. Thus, the claim of the petitioner that Section 6A is unconstitutional because instead of preventing migration to Assam, it incentivises migrants in other States to come to Assam to secure citizenship through Section 6A is erroneous,” the judgment added.

Meanwhile, the BJP-led coalition government headed by Himanta Biswa Sarma has issued instructions to Assam Police not to refer the cases of Hindu and other non-Muslim “illegal migrants” to the Foreigners Tribunal (FT).

Assam government directive to facilitate CAA provisions

On July 5, 2024, the Political (B) Department, Government of Assam, instructed the Border Police wing of Assam Police not to refer the cases of persons belonging to Hindu, Sikh, Buddhist, Parsi, Jain and Christian community who entered India prior to December 31, 2014, directly to the Foreigners Tribunal. The official instruction reads: “Such persons may be advised to apply in the prescribed form on the portal https://indiancitizenshiponline.nic.in for citizenship, which will be decided by the Government of India based on facts and circumstances of the case. A separate register may be maintained for this category of persons.”

The instruction clarifies that this differential treatment will not be available to those who entered Assam from Afghanistan, Bangladesh or Pakistan after December 31, 2014, irrespective of their religion. “Once detected, they should be straight away forwarded to the jurisdictional Foreigners Tribunal for further action.”

The Supreme Court judgment has given rise to a new legal question of whether this instruction is valid. Data presented by the State government in the Assam Assembly on August 22 shows that altogether 20,614 “Hindu foreigners” and 27,309 “Muslim foreigners” were detected between 1971 and 2014.

Apex court judgment puts spotlight on NRC implementation

The October 17 judgment puts the spotlight on NRC implementation in Assam. The names of 19.06 lakh NRC applicants were excluded from the updated list published by the NRC State Coordinator in 2019. The appeal process against exclusion in the final NRC is yet to start. This is because rejection slips mentioning the reason of rejection can be issued only after the final list is notified; after that, appeals can be filed before FTs.

Advocate Santanu Borthakur told Frontline: “The Supreme Court judgment rejecting the challenge to the constitutionality of Section 6A of the Citizenship Act will surely impact the publication of the final draft of the NRC, which is also awaiting the final stamp of approval from the apex court. Once the highest court of the country settles the most contentious issue of cut-off date in favour of March 25, 1971, no impediment will remain to publish the final NRC. There will be no more dilly-dallying tactics available to the ruling government.”

Borthakur believes the judgment will have no impact on the CAA. “The judgment upholds the sovereign power of Parliament to pass law on grant of citizenship, and going by that logic, Parliament is well within its powers to bring a law like the CAA. But whether such law conforms to the constitutional spirit of secularism or not is a different matter, and that will be an independent issue to be decided by the court. Having said this, it will also be apposite to point out that the apex court in its judgment has admitted the peculiar situation faced by Assam due to migration. Therefore, such observation shall have some impact on the question of granting citizenship to more foreigners in Assam by bringing an Act like the CAA.”

The NRC in Assam was updated by inviting applications from all residents whose names were included in the NRC of 1951 and in electoral rolls up to the midnight of March 24, 1971, and their descendants. The Supreme Court judgment states: “The NRC consolidates together the names of all citizens in relation to the State of Assam. At the same time, it is a process for the detection of foreigners. The Citizenship Act and the Rules framed thereunder and the Foreigners Act form a scheme on Indian citizenship which must be read as a whole.”

There are currently 100 FTs functional in Assam and about 96,000 cases are pending before these tribunals. Two hundred additional FTs were constituted on February 6, 2020, for the expeditious disposal of claims and objections of 19.06 lakh applicants excluded from the final NRC draft. But these were discontinued on October 14, 2022.

The NRC applications did not include any section for declaration of the applicant’s religion. The BJP’s staunch opposition to the final list, however, stemmed from the perception that the majority of those excluded are Hindu Bengali migrants who constitute a solid vote bank of the party. The BJP alleges that large-scale exclusion of Hindu Bengalis was caused by NRC officials’ refusal to accept, in the paper-based and physical verification exercise of updating the citizenship register, the Refugee Registration Certificates issued to Hindu Bengalis from the erstwhile East Pakistan who fled the country because of persecution prior to 1971.

The BJP and the Sangh Parivar had expected that Hindu Bengalis from the erstwhile East Pakistan and present Bangladesh—who entered the State prior to December 31, 2014 and were excluded from NRC list—would be able to apply for citizenship through the CAA route. One of the key requirements under the CAA is that the applicants will have to establish through documentary evidence that they were nationals of Bangladesh, Pakistan or Afghanistan. As applicants for inclusion in the NRC, they had submitted documents to claim that they were Indian citizens with respect to the cut-off year of 1971. Now they cannot submit fresh documents to claim they are nationals of Bangladesh to get citizenship under the CAA. This contradiction probably explains the low number of applications under the CAA, which Chief Minister Himanta Biswa Sarma claimed has demolished apprehensions about the CAA in the State.

Organisations opposed to the CAA in Assam are apprehensive that the law will encourage more Hindu Bangladeshis to come to the State and thus aggravate the perceived existential threat to Assamese speakers. Sarma says that only eight persons from the State had applied for citizenship under the CAA until July after rules of the amended citizenship laws were notified in March this year.

The low number of applications is also a cause of worry for the BJP. It raises concerns about erosion of its support base among Hindu Bengalis as the issue of exclusion from the NRC, including of those who came in between 1966 and 1971, continues to be unaddressed even after operationalisation of the CAA.

After the final notification of the NRC is issued, Electoral Registration Officers may refer to it to determine the citizenship of an elector during revision of electoral rolls in the State. The “Manual on Electoral Rolls” states: “Though currently there is no standard and uniform document throughout the country to determine citizenship, there are some documents that could be referred to by the Electoral Registration Officer while enquiring the question of citizenship of the concerned person. These documents are as follows: (i) National Register of Citizens (NRC), wherever it exists, (ii) Citizenship certificate issued by a competent authority, (iii) A valid passport issued by the Government of India, (iv) Birth Certificate.” It also clarifies that the documents mentioned are illustrative and not exhaustive.

NRC, illegal immigrants, and electoral rolls

The primary objective of updating the NRC in Assam is to settle the issue of identifying undocumented migrants to facilitate preparation of electoral rolls that do not include “illegal migrants”, and their expulsion from the State. In September 2019, during Narendra Modi’s second term, the Ministry of External Affairs said: “Exclusion from the NRC has no implication on the rights of an individual resident in Assam. Those who are not in the final list will not be detained and will continue to enjoy all the rights as before till they have exhausted all the remedies available under the law. It does not make the excluded person ‘stateless’. It also does not make him or her a ‘foreigner’, within the legal meaning of the term. They will not be deprived of any rights or entitlements which they have enjoyed before.”

However, those excluded from the NRC have also remained deprived of Aadhaar because of locking of their biometrics with the NRC authorities.

It remains to be seen if the Supreme Court will issue any directive on NRC implementation in the State while deciding on petitions seeking reverification of the final draft. Those seeking reverification have alleged that the final NRC draft includes names of many ineligible applicants (illegal Bangladeshi migrants) and excludes names of eligible applicants (genuine Indian citizens).

Also Read | Two years after Assam evictions, hundreds of families wait for their promised land

The excluded applicants will get an opportunity to file appeals before the FTs after rejection slips are issued to them. Anyone aggrieved by the decision of the FTs on the appeal will be able to move the High Court and then the Supreme Court.

There are allegations that discrepancies in the paper-based and bureaucracy-dependent NRC exercise led to exclusion of scores of genuine Indian citizens and resulted in broken families, all because of their failure to produce documentary evidence sought by NRC officials to prove their residency in Assam prior to 1971.

Political support for 1971 as cut-off year and fears of demographic change

The political support for 1971 as the cut-off year and identification of “illegal Bangladeshi migrants” irrespective of religion is driven by apprehensions among Assamese-speaking people of being marginalised by the combined strength of Bengali-speaking immigrants who entered the State post-1971. The BJP pushes for 2014 as the cut-off year for all except “Muslim illegal migrants from Bangladesh”. This position is part of the Hindutva narrative that projects only Muslim Bangladeshis, Muslim immigrants from East Pakistan and erstwhile East Bengal as the threat to Assamese and other indigenous communities. The issues involved are enough to make a political melting pot of Assam.

Sushanta Talukdar is a journalist based in Guwahati with 32 years’ experience of covering India’s north-eastern. He is now Editor of nezine.com, a bilingual online magazine published from the north-eastern region.

For most of its existence, the Jammu and Kashmir National Conference (NC) and Peoples Democratic Party (PDP) have shared a similar defining feature: their steadfast alignment with pro-India politics in Jammu and Kashmir. Despite varying levels of influence and power over the years, the NC and PDP leaderships have faced local resentment and separatist anger due to their loyalty to India in the politically turbulent Kashmir Valley.

This reality however changed on August 5, 2019, when the Central government introduced the Jammu and Kashmir Reorganisation Act, 2019, which details the administrative changes to the Union Territory’s statehood, autonomy, and constitution that flowed from the repealed Article 370 and 35A of the Constitution. While the Centre repealed 205 State laws, it retained some laws from the old State Constitution, among them the infamous Jammu and Kashmir Public Safety Act (PSA).

Specific only to Jammu and Kashmir, the PSA is a preventive detention law that grants the Union Territory sweeping powers to detain a person without trial. Those detained for threatening public order can be held for up to one year, while the detention period can extend to two years for individuals deemed a threat to national security.

As constitutional reorganisation swept Jammu and Kashmir in August 2019, retaining the PSA seemed to be a fitting coda to the Modi government’s controversial move. The Delhi-controlled Jammu and Kashmir administration went on to book NC and PDP’s top leaderships, including the three former Chief Ministers—Farooq Abdullah, Omar Abdullah, and Mehbooba Mufti—under the PSA. Omar Abdullah was accused of “using politics to cover his radical ideology”, while Mehbooba Mufti was alleged to be “collaborating with separatists”.

Five years have passed since New Delhi labelled the three former Chief Ministers as security threats, but the two main regional forces seem to be still feeling the sting. Perhaps this is why the manifestos of both the parties issued for the upcoming Assembly election—to be held after a decade of din and drama—call for the removal of the PSA forever.

Also Read | The UAPA and PSA are being used as tools of coercion in Kashmir

Legal experts, however, believe that repealing the law will not be straightforward, given that Jammu and Kashmir’s elected Assembly must navigate a new legal framework with significantly reduced powers compared to the erstwhile State Assembly.

Why now?

Originally introduced by Sheikh Abdullah (Omar Abdullah’s grandfather), the PSA was enacted in 1978 to crack down on timber smugglers in the former State. However, successive governments have actually used the Act to crush political dissent in the restive Valley. In fact, Amnesty International termed the PSA a “lawless law”, noting that it has “largely supplanted the regular criminal justice system in J&K”.

When Omar Abdullah became Chief Minister in 2009, he followed in the footsteps of his predecessors. In his first four years in office, Omar’s government booked 1,257 people under the Act (until July 2013). On October 1, 2013, the Chief Minister told the State Assembly: “There is no proposal or need for revocation of Jammu and Kashmir PSA, 1978…” as the “Act has sufficient inbuilt safeguards”.

A decade later, Omar Abdullah is expected to repeal PSA if his party is elected to power in the upcoming election. “We have been talking about putting the repeal of PSA on the agenda since 2019 when we had hoped the Assembly election would be held,” he told Frontline. “Now it has been formally included in our manifesto.”

Also Read | Kashmir braces for its first Assembly election in a decade with hope and scepticism  

While the NC vice-president did not explain why he did not repeal the PSA during his tenure as Chief Minister, a party leader defended the Act as a safeguard for the former State. “Under the NC government, not a single person who believed in India’s Constitution was slapped with a PSA,” he told Frontline, declining to be identified. “It was only used against separatists and stone-pelters. So why would we have revoked it when its only purpose was to safeguard the State?” The leader went on to admit that when a State has constitutional legitimacy to disempower ideological opponents, it would not be inclined to end that legal impunity.

Omar Abdullah is not the only leader, and the NC is not the only regional party that refrained from repealing the PSA during its tenure. The PDP, which has now pledged to end the PSA, was in office from 2016 to June 2018 with Mehbooba Mufti as Chief Minister, and heavily relied on the Act to control public unrest following the killing of the militant leader Burhan Wani. Notably, Mufti’s administration also detained prominent human rights activist Khurram Parvez under the PSA.

A report by the United Nations High Commissioner for Human Rights, released in June 2018, states that between March 2016 and August 2017, the Mehbooba Mufti-led government made approximately 1,000 arrests under the PSA, a strikingly high number.

Although the Jammu and Kashmir State Assembly amended the PSA in 2012 to prohibit the detention of people under 18 years of age, the Amnesty report warned the State government that even minors had been arrested in 2016 and 2017.

“PSA has so many draconian clauses that even if there is no proof against an individual, the State can still book him without trial,” said a senior PDP leader, who served as a Minister in the PDP-BJP coalition government. “After 2019, the government of India repealed hundreds of State laws in Jammu and Kashmir but kept the PSA in place in order to control and suppress the population.”

The former Minister explained how draconian the PSA was. The entire authority is vested below the command of a sitting Chief Minister. “It was made so draconian that there is no authority above a Deputy Commissioner who could challenge it. No elected government had any authority to end the detention period of any prisoner, until the court intervened. The law was draconian, but its making was much more draconian.”

When asked why his government did not repeal the PSA despite having the opportunity, the former Minister explained, “We were a coalition government with an agenda of alliance, and removing the PSA was not feasible within that framework. We wanted to end it, but it would have come at the expense of our government. [PDP] could not afford that risk.”

In fact, however, as Kashmir-based legal expert Habeel Iqbal said, both regional parties could have abolished the harsh preventive detention law but kept it going as a political tool to contain any political fallout adverse to them. “If the Union Territory Assembly decides to scrap the PSA, it may be challenged and might not withstand the scrutiny of the court, but it would at least show the political will to address the issue,” explained the advocate, who has extensive experience in PSA cases. “That said, these parties [NC and PDP] did not do away with this law when they were in power and, in fact, gave more teeth to it. It is clearly more rhetoric than reality now.”

‘Even more brazen’

Both PDP and NC leaders argue that their governments did not use the PSA as aggressively against lawyers, activists, journalists, and civilians as the LG administration has since 2019. The fact is that over the years, human rights organisations have alleged that both NC and PDP did use PSA to target human rights defenders, journalists, and separatists, which stains their respective tenures.

As per data provided by the Jammu Kashmir Coalition of Civil Society (JKCCS), since the abrogation of Article 370 in August 2019 and until the end of 2019, 412 people were booked under PSA. In 2021, over 100 people were detained, while in 2022, 650 people were booked under the draconian law, including four journalists.

“Our government only booked anti-state elements under PSA,” a senior PDP leader, wishing not to be identified, told Frontline. “It was used very restrictedly in our tenure. But after 2019 its use has become more brazen.”

In fact, in recent months, the Jammu & Kashmir and Ladakh High Court has issued several rulings on the use of PSA in Jammu and Kashmir, pointing out the arbitrariness by the Union Territory authorities. “The courts have noted the impunity with which the LG administration has used the PSA in Kashmir,” said the NC leader quoted earlier. “This level of arbitrariness was not present during our government.”

Sarpanch or Chief Minister?

An important factor that these regional parties are likely to confront, if and when they try to repeal the PSA, is that the Union Home Ministry has recently empowered the Jammu and Kashmir Lieutenant Governor so much that political analysts believe that it was done to ensure the continuity of the Centre’s rule in the Union Territory and curtail the powers of an elected Assembly.

As the PDP leader said, in such a Union Territory setup, the Chief Minister is equal to a sarpanch and the cabinet ministers are similar to panchayat members. “Can you expect them to revoke PSA?” he asked.

A former bureaucrat in the Jammu and Kashmir government, who is aware of the legality of the PSA, told Frontline that the promise made by the NC and PDP in their manifestos about repealing the PSA is as difficult, if not impossible, as their promise to restore Article 370 and 35A. “A Union Territory Legislature is not as empowered as a State Legislature,” he said.

He pointed out that in the case of Parliament, a Bill is submitted for the President’s assent and the President has the option to either give his/her assent or return the Bill to Parliament for reconsideration. However, if the Parliament passes the Bill again, with or without amendments, the President has no option but to grant his assent. Article 111 of the Constitution says the President “shall not withhold assent therefrom”.

Similarly, Article 200 of the Constitution provides that the Governor shall not withhold assent if upon returning the Bill for reconsideration the State Assembly again passes the Bill with or without amendment.

“However, in the case of Jammu and Kashmir, the Lieutenant Governor is under no legal obligation to give his assent to the Bill if it is passed by the Union Territory’s Legislature for a second time,” the bureaucrat said. “Section 38 of the Jammu and Kashmir Reorganisation Act, 2019, provides that when a Bill is returned by the Lieutenant Governor to the Legislative Assembly for reconsideration and the Assembly passes it again with or without any amendment, the Lieutenant Governor may either assent the Bill or reserve it for consideration of the President. There is no legal binding on him to not withhold his assent.”

Moreover, there is no provision in the Constitution or in the Reorganisation Act that prescribes any time limit for the President’s consideration of a Bill, and there are examples where Bills reserved for the President’s consideration have never seen the light of day.

With legal experts and political parties well aware of the challenges, a tussle between the Lieutenant Governor administration and the elected Union Territory Legislature on the question of PSA is clearly on the cards, unless there is a change of heart or government at the Centre.

Zaid Bin Shabir is a journalist based in Srinagar.