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.

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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).

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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.