Citizenship Amendment Bill fails to address key questions on Section 6A of existing Act, sidelines Assam Accord

  • For dominant Assamese-speaking groups in the Brahmaputra Valley, particularly, who have been opposing illegal immigration from Bangladesh for decades now, this is a downright unacceptable prospect and a turnaround of the BJP’s election agenda to expel all ‘illegals’ from Assam.

  • A minute reading of the JPC report shows that the conclusions that the Committee draws on the immigration issue and Assam Accord are incoherent, contradictory, and even perplexing.

  • The JPC faces a visible dilemma in building a case for offering citizenship to immigrants of the six religious communities from Bangladesh, Pakistan, and Afghanistan while, at the same time, redressing the apprehensions of ‘indigenous populations’ in Assam.

  • By emphasising on economic aid to state governments to resettle the legalised migrants, the Central government is clearly diverting attention from the political and social roots of the anti-CAB sentiments in Assam.

Editor's Note: The two-part series on the Joint Parliamentary Committee report on the Citizenship Amendment Bill is a detailed political-legal analysis of the report, the Bill, and the surrounding sociopolitical context around it. This is the second part of the series.

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The Citizenship Amendment Bill (CAB), 2019, which currently awaits a vote in the Rajya Sabha, might have been a much-awaited pet project of the ruling Bharatiya Janata Party (BJP) government. But, for many others, it is a threatening piece of legislation that challenges their very identity.

The CAB, which selectively picks out six religious denominations for the legislative purpose, has been criticised for violating the ‘equality before law’ principle enshrined in Article 14 of the Indian Constitution. In Part 1 of this series, the authors explained why this criticism holds strong ground.

 Citizenship Amendment Bill fails to address key questions on Section 6A of existing Act, sidelines Assam Accord

AASU activists seen protesting in various places burning tyres in Dibrugarh in Assam. Avik Chakraborty/101Reporters

The CAB has also drawn vehement criticism from ethnopolitical groups in North East India, particularly Assam. These groups argue that the Bill would open the floodgates to Hindu Bangladeshi immigrants into the region, thus resulting in demographic changes, erosion of the ‘indigenous cultures’ and straining of local resources.

For dominant Assamese-speaking groups in the Brahmaputra Valley, particularly, who have been opposing illegal immigration from Bangladesh for decades now, this is a downright unacceptable prospect and a turnaround of the BJP’s election agenda to expel all ‘illegals’ from Assam.

The specific charge is that the CAB invalidates the 1985 Assam Accord, which prescribed the lawful detection, deletion and expulsion of “foreigners who came to Assam on or after March 25, 1971” and the provision of “constitutional, legislative and administrative safeguards” to “protect, preserve and promote the cultural, social, linguistic identity and heritage of the Assamese people”.

They also allege that by considering persons from the six communities as legal migrants, the CAB would contravene Section 6A of the Citizenship Act, which was derived from the Assam Accord’s provisions and stipulates the political disenfranchisement for 10 years of every person of Indian origin who entered Assam from Bangladesh between 1 January 1966 and 25 March 1971 and are detected as ‘foreigners’ by the established Foreigner Tribunals.

Further, they allege that the CAB, by selectively allowing Hindu Bengali immigrants to stay on in Assam, contravenes the core intent of the ongoing National Register of Citizens (NRC) updation exercise that seeks to identify all ‘illegal immigrants’ living in Assam. The list’s final draft, released in July 2018, had identified 40 lakh applicants (out of 3.29 crore) as ‘illegals’, out of which a significant chunk is claimed to be Bengali Hindus.

A minute reading of the JPC report shows that the conclusions that the Committee draws on the immigration issue and Assam Accord are incoherent, contradictory, and even perplexing.

The Committee faces a visible dilemma in building a case for offering citizenship to immigrants of the six religious communities from Bangladesh, Pakistan, and Afghanistan while, at the same time, redressing the apprehensions of ‘indigenous populations’ in Assam. This dilemma, in most parts of the report, remains unreconciled.

Does the Bill violate Assam Accord and Section 6A of the Citizenship Act 1955?

Section V of the JPC report, titled ‘Proposed Amendments vis-a-vis Assam Accord’, addresses concerns about the CAB potentially invalidating the Assam Accord and the special citizenship regime legislated for Assam under Section 6A of the Citizenship Act 1955 that flows from it.

The government seems to be divided from within on this issue.

While the Ministry of Law and Justice’s (MoLJ) Department of Legal Affairs (DoLA) believes that the CAB does violate the Assam Accord and could challenge Section 6A, its Legislative Department (LD) argues to the contrary. Despite this critical divergence, the JPC ultimately endorses the CAB.

In Clause 5.4 (page 61), the DoLA clearly submits that the CAB is “contrary to the Assam Accord”. In the next Clause, the DoLA cites the case of Assam Sanmilita Mahasangha vs. Union of India (2015) in which the Supreme Court validated the constitutionality of Section 6A, but raised 13 crucial questions regarding the foundation basis of the provision and referred the matter to a larger Constitution Bench.

The LD, on the other hand, strongly argues in subsequent clauses of the report that the CAB’s provisions do not violate Section 6A. The Department’s key argument is:

“Section 6A of the said Act (pertaining to the Assam Accord) only deals with foreigners who entered India (from Bangladesh to Assam) between 1-1-1966 And before 25-3-1971. It does not provide for any form of detection, deletion or expulsion of foreigners beyond the said date.” [Clause 5.8, page 65].

This is a legally sound argument. Section 6A is silent on the exact legal status of post-1971 immigrants from Bangladesh, unlike the Assam Accord, which clearly calls for the lawful expulsion of immigrants who came to Assam after 1971 [Clause 5, Assam Accord]. The Accord, however, does not enunciate any institutional or legal mechanism for dealing with the post-1971 immigrants.

File photo of protesters marching against Citizenship (Amendment) Bill, 2019, in Guwahati.  PTI

File photo of protesters marching against Citizenship (Amendment) Bill, 2019, in Guwahati. PTI

Hence, even though the LD’s argument has legal merit, it appears to defeat the spirit of the Assam Accord and the demands of large sections of the population of the state which resulted in the signing of the accord in the first place.

Any subsequent redefinition of foreigners within the Section 6A’s ambit by the legislature should ideally consider not only the legal possibilities but also the socio-political situation of the affected areas. The LD’s primary preoccupation, however, seems to be only to identify legal loopholes between the accord and the Section to assert CAB’s validity.

What is particularly glaring is the overwhelming opposition that the JPC encountered from political and public groups in the North East. In its visit to Guwahati, Shillong, and Silchar, the JPC received a total of 37 points of input, out of which, 29 are in vehement opposition to the CAB.

Strangely, the committee — which otherwise sought clarifications from the government on several issues of contention in other sections of the report — conveniently avoided seeking assurances and clarifications regarding much of the concerns raised in these points of opposition — such as that of potential demographic change, religious and linguistic polarisation, dilution of linguistic basis of states, and lack of data on religious persecution in Bangladesh.

Besides, the difference with which the Committee treats the two contrasting legal opinions from within the MoLJ is self-evident. While it also allows the pro-CAB LD to make lengthy arguments in its defence, running almost five pages, the DoLA’s critical position remains unprobed.

However, in its conclusion, the report does warn the government to “tread with caution and take recourse to all legal precautions lest it causes embarrassment at a later date” given that the Section 6A’s full validity remains sub judice in the apex court. The report further says:

“The Committee are also of the firm opinion that the primary objective of the Assam Accord viz. to protect the cultural, social and linguistic identity of the Assamese people has to be fulfilled and the onus lies with the Government to ensure that the proposed legislation does not impede the process of implementation of the Assam Accord.” [Clause 5.47, page 79]

Activists of Asom Gana Parishad led by former Assam chief minister Prafulla Kumar Mahanta take out a torch light rally objecting to Citizenship (Amendment) Bill. PTI

Activists of Asom Gana Parishad led by former Assam chief minister Prafulla Kumar Mahanta take out a torch light rally objecting to Citizenship (Amendment) Bill. PTI

The Committee’s anxiety in this regard is revealed further when it says:

“[...] that in view of the anxieties and concerns expressed by the civil society groups in Assam and other North-Eastern States, the State and Central Governments should formulate rules and regulations under this Clause (6A) to ensure that the identities of indigenous peoples are not threatened in any way by unintended consequences of the Citizenship Bill.” [Clause 5.47, page 79]

Clearly, the JPC not only believes that Section 6A is still in legally ambiguous territory, but also that the CAB could contravene the Assam Accord. One wonders why then the Committee put its stamp of approval on the proposed legislation.

Demographic change or not?

On the charge that the CAB would perpetuate ‘demographic change’ in Assam by regularising Hindu Bangladeshi immigrants, the JPC and the government appear to disagree. The BJP government’s position on this, particularly, reveals its Hindutva-driven distinction between Muslim and non-Muslim migrants.

The report, right in the introductory section, cites the landmark Sarbananda Sonowal vs Union Of India & Anr (2005) case, in which the Supreme Court says:

“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 a weakened and their employment opportunities will be undermined.”

When asked by the JPC about these concerns, the MHA says:

“"There is no specific report on whether the refugee migrant population from Bangladesh is causing unexpected demographic changes of certain North-Eastern States. The amendments are applicable to specific class and these people have been living in these areas since long. Further a cut-off date of 31 December, 2014 has been decided for determination of eligibility and to prevent the possibilities of vested interests in the neighbouring countries taking advantage of this provision for further influx into India.” [Clause 5.13, page 67]

The Intelligence Bureau (IB), too, argued that the CAB would have “no security implications as all these persons are already staying in the country for decades." [Clause 5.30, page 73]

Here, interestingly, the government uses the term “refugee migrant population” to denote the “specific class” of people who “have been living these areas since long” and haven’t caused any demographic change. By this, the ministry clears means all non-Muslim immigrants from Bangladesh who cannot be termed as “illegal immigrants” since they are “refugees”. The Muslims, however, are the real ‘infiltrators’ who cause demographic change.

This assertion that Hindu (and other non-Muslim) migrants from the post-partition countries are “refugees” isn’t new and is rooted in the core belief of the ruling party and its ideological mothership -- the Rashtriya Swayamsevak Sangh.

But, the JPC seems to hold a different view. It says:

“[...] the Committee are not convinced with the MHA’s statement that there is no specific report on expected demographic changes of certain North Eastern States, particularly Assam due to influx of migrants from Bangladesh. In fact, demographic changes have been indicated in successive census but the illegal migrants claim that they are original residents of India as they have been able to obtain documents including ration card, driving license, passport etc.” [Clause 5.49, page 79]

This is not just a sweeping denial of the ruling government’s position, but also a scathing indictment of the country’s administrative apparatus, which allowed immigrants to acquire citizenship documents without due process. Instead of addressing this lapse, the Committee simply resorts to the logic of having a cut-off date:

“Therefore [in light of evidence indicating demographic change], in the Committee’s opinion, the cut-off date of 31 December 2014 assumes greater significance as it has been intended to determine eligibility and prevent further influx into India, negating thereby the possible malafide design of the vested interests in the neighbouring countries.”

While this might address potential ‘demographic changes’ in the future, it neither tackles perceptions of such changes that might have already happened till the said cut-off date nor does it do anything to make the current citizenship regime more robust. If anything, it only sharpens the sociopolitical divide between Assam’s ethno-nationalists and the pan-Indian, Hindutva nationalist dispensation at the centre.

The JPC further goes on to endorse the government’s submission that “re-settlement packages and compensation to State Governments” may be given to “encourage State Governments to help settle such foreign nationals especially in places in the State which are not densely populated." [Clauses 5.14 and 5.49]

By emphasising on economic aid to state governments to resettle the legalised migrants, the Central government is clearly diverting attention from the political and social roots of the anti-CAB sentiments in Assam (and the North East). In fact, “re-settlement packages and compensation” seems to be the central government’s only targeted policy solution to address the overwhelming ‘demographic change’ concern amongst constituencies in the North East.

On the CAB’s possibility of invalidating the NRC exercise, the government’s submissions prove that the Bill indeed dilutes the NRC’s mandate. The MoLJ’s Legislative Department, in concurrence with the MHA, suggests the following amendment to the Citizenship Act to “remove any probable ambiguity” on the CAB’s stipulations and the Assam Accord:

"Provide further that on and from the date of commencement of the Citizenship (Amendment) Act, 2016, any proceeding pending against any person referred to in the first proviso shall be abated and such person shall be eligible to apply for naturalisation under Section 6." [Clause 5.12, page 67]

This essentially means that an “illegal immigrant” identified in the NRC will not be treated as such by the state and will be able to apply for Indian citizenship if she belongs to one of the six religious communities designated in the CAB. In Assam’s case, this would include large numbers of Hindu immigrants from Bangladesh.

This vindicates the concerns of political and civil society groups in Assam about the CAB’s negating impact on the NRC. Despite this, the JPC found it fit to approve the Bill.

Given all the fundamental differences in opinion, gaps in understanding, and vague conclusions, the JPC’s green light to the CAB in its current form speaks of agenda-driven politics, rather than evidence-based and context-sensitive policymaking. This is, at best, sloppy legislative assessment by a high-level parliamentary committee and at worst, arbitrary and vested decision-making by the day’s government.

Also Read: Citizenship Bill: JPC report shows how proposed law violates constitutional principles of equality before law

Angshuman Choudhury is a senior researcher at the Institute of Peace and Conflict Studies, New Delhi. and Jonmani Das is an MPhil student of History at Jawaharlal Nehru University, New Delhi.

Updated Date: Jan 25, 2019 16:22:40 IST