Interview with Professor Anupama Roy

Anupama Roy is a professor at the Centre for Political Studies in the School of Social Sciences in Jawaharlal Nehru University, Delhi. Her research focuses on debates on citizenship, political anthropology of public institutions, constitutionalism, law and democracy, and gender studies. Her most recent publication is ‘Citizenship Regimes, Law and Belonging: the CAA and NRC in India’ published by Oxford University Press, 2022. She is the co-author of the book ‘Election Commission of India: Institutionalising Democratic Uncertainties and author of Mapping Citizenship in India’ (OUP, 2010, 2014), ‘Citizenship in India’ (Oxford short introduction series, 2016) and ‘Gendered Citizenship: Historical and Conceptual Explorations’ (Orient Blackswan, 2005, 2013). She has co-edited ‘Dimensions of Constitutional Democracy’ (Springer 2020) and ‘Poverty, Gender and Migration in South Asia’ (Sage, 2008). Her research articles have appeared in various national and international journals including Asian Studies Review, Australian Feminist Studies, Citizenship Studies, Critical Asian Studies, Contributions to Indian Sociology, Economic and Political Weekly, Seminar, Election Law Journal and Studies in Indian Politics. She was a senior fellow in the Centre for Women’s Development Studies, before she joined the Centre for Political Studies in JNU. She has been a visiting scholar in various universities, including Sydney University, University of Warwick and University of Wurzburg, Germany. She was Sir Ratan Tata post-doctoral Fellow at the Institute of Economic Growth in Delhi and Key Technology Partner Fellow at University of Technology, Sydney, Australia.

This interview was conducted online and has been edited for clarity.

Introducing Professor Roy’s Work

Rudraksh Lakra: Could you speak a little about how your book Citizenship Regimes, Law, and Belonging: The CAA and the NRC came to be? When did you start working on it? How did you locate this work within the broader trajectory of scholarship vis-a-vis citizenship studies? Lastly, how does this add to the preexisting body of scholarship interrogating India’s citizenship regime?

Professor Roy: Citizenship Regimes, Law, and Belonging (OUP 2022) builds upon my previous work, Mapping Citizenship in India (OUP, 2010). Mapping Citizenship had traced the biography of the citizenship law in India up to the 2003 amendment in the Citizenship Act 1955. Citizenship Regimes (OUP, 2022) examines the contemporary landscape of citizenship, focusing on the NRC and the CAA, and uses the categories ‘regimes’ and ‘belonging’ to make the citizenship-space intelligible. I started working and writing on the NRC, 2015 onwards and extended my inquiry to the CAA since both were coterminous in the citizenship-space in the country. I also found it useful to expand the scope of the study to include the Land Border Agreement Treaty of 2015 pertaining to the enclaves, the exchange of territory and population, and how Section 7 of the Citizenship Act came into play in the constitution of ‘new’ citizens even as the ‘old’ citizens experienced displacement as they moved from the enclaves to camps in Cooch Behar. I place my work within the broad fields of citizenship studies, law, state and politics/social sciences, and legal and constitutional ethnography. There has emerged an urgency in the vast and accumulating scholarship on citizenship to go beyond citizenship as legal status associated with membership in a nation-state to relationships that need to be seen from the anthropological lens.

The emphasis, according to this approach, should be less on legal rules and more on norms, practices, and meanings that make citizenship intelligible to people. In such an understanding, citizenship may not mean the same thing to everyone but would serve as a powerful connecting concept with the capacity to coalesce diverse settings and struggles, even when each setting is distinctive and is expressed as ‘a situated articulation’. Citizenship is presented then as a ‘powerful keyword’ which has the capacity to make sense of relationships – existing or desired – as they are vocalized in different forms – texts and performances – across different sites of varying scales and intensities. This book deploys ‘regimes’ and ‘belonging’ as devices to understand how citizenship is structured, its effects, and the feelings of attachment or estrangement that it spawns. The book, however, retains the focus on law – the citizenship law – to see how law and state can be seen as ‘relational’ categories and as sites where struggles over belonging are waged. These struggles then produce unsettled zones – churnings – which when seen through the anthropological lens, tell us about both – the life of law and the lives it intersects. They also tell us of the blurred zones between law’s distance and proximity, which is important for understanding the relationship between legal rationality and the force of law. In these zones, citizenship becomes entangled with the law’s capacity to destabilize and recode ideas of belonging by simultaneously enforcing and masking the power of the state to elicit obedience from citizens. It is in these zones also that the performative aspects of citizenship and the constituent power of the people is expressed—in the form of ‘creative’, ‘dissident’, and ‘iterative’ citizenship practices that accumulate and become critical for unfettering the emancipatory potential of citizenship. I would see my work as part of and in conversation with a rich repository of citizenship studies in India, which provides important insights into how rights and obligations of citizens in India, were an outcome of a long history of negotiations in the judicial space, claims-making in the terrain of civil society, and recognition in the constitutional architecture. It is, however, its focus on law, and the effort to see law’s relationship with lives that comprises the distinctive contribution of this book to citizenship studies in India.  

First Regime of Citizenship 

Rudraksh Lakra: In your book, you link the first regime of citizenship with the ‘transformative’ moment which was the drafting of the Constitution of India. But there were always tensions within the ‘transformative constitution‘. This moment was contested both historically and politically. There were also forces (often majoritarian) which attempted to undermine this transformative process. Considering this, could you speak about the discourse around the issue of citizenship? Were there voices and ideas with the potential to unravel this first regime of citizenship, something almost universal in nature?

Professor Roy: The book is about fields of contest over citizenship understood in terms of regimes of citizenship. I have identified three consecutive regimes of citizenship, each distinguished by an underlying logic, which makes the regime discrete. Yet there are tendencies that linger on from one regime to the other. The association of the term ‘regime’ with citizenship is crucial for making the argument that law must be seen not only in terms of its bare provisions, but also examined for its political and ideological embeddedness. It enables us to map the field of power that surrounds citizenship, the debates on what is considered authoritative, the legitimation practices that justify the authorial power of the state over law-making, the interface of law with the lives that it intersects, and the notions of belonging that it puts in place. All the three ‘historical’ regimes address the problem of ‘mobility’ of people in contexts of state and nation-making and the cartographic anxieties that accompany the making and enforcing of borders. Integral to each regime is the notion of crisis that immigration and the ‘awkward’ and ‘threatening’ presence of ‘aliens’ and ‘outsiders’ present to the ‘settled’ notions of membership and belonging.  In a sense this work follows Laura Nader, who prompts us to look at law as having a life, which when seen in the anthropologist’s terrain is visible in its mutations as well as through the political effects in generates – especially in the way in which concepts like the rule of law, equality, justice etc., when used repetitively, may have the effect of occluding and silencing the ‘realities’ experienced by people. In a sense, this work is one of constitutional ethnography, focusing on the aspect of ethnography that persuades us to appreciate the historical and political contexts in which constitutional and legal rules are situated, and undertake as Scheppele would argue ‘contextually detailed’ studies where particular questions of law may be seen in all its complexity, in its enduring histories, specific social and cultural meanings, and political effects. 

The contextually detailed and situated articulation of the citizenship law shows that the citizenship regimes constitute ‘assemblages’ which are distinguishable from one another but at the same time are internally uneven and fraught. I associate the first regime with the transformative which characterised the constitutional moment that opened the possibility of a ‘democratic’ notion of government and of rolling back the legacies of past injustices. The ‘transformative’ – a conceptual framework associated with constitutionalism in post-apartheid South Africa – is relevant for understanding the journeys of countries making the transition from colonial rule and authoritarian regimes to democracy. By holding out a powerful affective appeal of individual and collective transition to the camaraderie of equal membership in the political community, the ‘transformative’ held out the promise of a future unburdened from the humiliations of the past. At the same time, however, the past lingered in the lives of the people as ‘the new forms of the old state’ persisted. In an evocative use of the ‘bridge’ as a spatial metaphor in the context of the interim Constitution of South Africa, Pius Langa sees the transformative as a ‘permanent ideal’, as a ‘way of looking at the world’ to explore ‘new’ and ‘democratic’ ways of ‘being’. 

As a deliberative body that was entrusted with the task of making a higher-order law from which governments would draw their authority and legitimacy, the Constituent Assembly represented a space, where questions concerning the future polity, democracy, and citizenship were debated and ‘resolved’. Upendra Baxi sees this process as one of locating the legal sovereign amidst ‘prior [and continuing] histories of power and struggle’. These struggles shaped the project of writing the constitution, the ‘specific modes of governance and production of juridical norms’, and also the relationship between the constitution, law, and the ongoing state formative practices. The Constituent Assembly met in the context of the Partition – a period of extraordinary violence and deep uncertainties about belonging. The minutes of a meeting of the Standing Advisory Committee held in Delhi on 14 November 1949 under the chairpersonship of the Minister for Home Affairs Vallabhbhai Patel, give an insight into the augmentation of the policing activities of the state and the expenditure incurred on it – the passport check posts on the newly installed borders, the employment of extra police officers for the security of the sessions of the Constituent Assembly and additional police for the eviction of persons occupying evacuee property, the recovery of the abducted persons, and the ‘sudden expansion of Delhi and the increase in its population’ due to the migration from Pakistan, to mention a few. Writing about ‘passions’ in the Constituent Assembly which met in the Parliament House ‘a few miles from the refugee camp’ for those displaced due to the Partition, with Nehru’s official house too serving as a refugee shelter, Vatsal Naresh, points towards the sense of ‘foreboding’ that violence produced even among the members of the Assembly. Indeed, the questions of citizenship were being addressed in a variety of situations, in a context, where people were moving across the newly created borders, displaced under conditions of extreme violence. The Constituent Assembly experienced difficulties in framing the ‘legal’ provisions for citizenship because the procedures for identifying citizens in the context of movement of population were fraught with questions pertaining to both who would be a legal citizen of India at the founding moment but also what kind of identity this legal membership would express. The question of identity was particularly fraught with members differing over the identification of Indian citizenship with a Hindu Homeland on the one hand and the emphatic disavowal of this association by those who saw secularism as the principle which would make Indian citizenship inclusive and universal. The debates in the Constituent Assembly from 10 to 12 August 1949 (see here, here, and here), when the final provisions of citizenship were deliberated upon and approved, show deep ‘ideational’ and ‘ideological’ disagreement among the members. These disagreements reflected anxieties around the implications the constitutional framing of citizenship would have on the idea of Indian citizenship. Distributed along the familiar fault-line of whether ‘birth’ or ‘descent’ should be the foundational principle of citizenship, they were concerned with questions of both the source of citizenship and its expression as an identity—attached to ideas of home and belonging. A close reading of the Constituent Assembly Debates shows, however, that the fault lines were unevenly drawn, and no position was absolute. Those who argued for descent as the source of citizenship also sought to make citizenship conditional for ‘returnees’ from Pakistan and were apprehensive of the ‘dual ties’ citizenship would generate when extended to the diaspora community. Similarly, apologists for the principle of birth sought to make it conditional on domicile and combine it with ‘inheritance’ or lineage from Indian parentage. The need to specify the uniqueness of Indian citizenship among countries that subscribed to one or the other forms of citizenship was asserted amidst concerns that the inscription of ‘birth’ as a definitive condition of citizenship would make it ‘cheap’. Anxieties were also expressed that indiscriminate absorption of people migrating across borders would make Indian citizenship precariously flexible and embarrassingly indecisive. 

Significantly, the debates provided the space where secularism as a democratic and republican ideal was discussed and affirmed as the basis of citizenship, even as the relationship between citizenship and religion, the legibility of mobility, questions of loyalty and allegiance, and the centrality of birth or descent as the source of citizenship, remained disputed. Deviating from Ambedkar’s opening statement that Parliament would have the power to make an altogether new law on citizenship embodying new principles, Nehru’s speech towards the end of the debate conveyed that the objective of the deliberations in the Constituent Assembly was to lay down the norms and principles that would define citizenship—and not the details of acquisition and termination of citizenship. While these details should appropriately be in the domain of the law making powers of Parliament, the Constituent Assembly must lay down the principles which would guide future law. Nehru considered a decision that involved ‘the greatest amount of justice’ and served as the most practical solution to the problems of the ‘vast majority of cases’, as a principled decision. Yet, the practicality of a decision would be subservient to the principles which gave the constitution an identity. Troubled by the way opposition to Ambedkar’s proposal was built around the rejection of secularism, Nehru argued that these positions eschewed considerations of equity and justice. Indeed, by choosing to remain secular, India was only doing something which every country, except ‘a few misguided and backward countries in the world’ had done.

Second Regime of Citizenship 

Rudraksh Lakra: Could you introduce the second regime of citizenship, the Assam exception?

Professor Roy: The second regime of citizenship, characterized by the logic of exception, addressed the citizenship question in Assam. Put in place through an amendment in the citizenship law in 1985, the regime installed what one could call a hyphenated citizenship in the state. The citizenship question in Assam today continues to be framed by the two ‘events’ that marked out the ‘Assam exception’ in the 1980s. The first event was the enactment of The Illegal Migrants (Determination by the Tribunals) Act, 1983 (IMDT Act), which was notified only for Assam and became critical in exacerbating the field of contest around citizenship in the state by putting in place a mode of identification of illegal migrants which was different from the rest of the country. The IMDT Act was seen in Assam as an anomalous and unfair exception. The Supreme Court’s judgement repealing the IMDT Act in what is commonly known as the Sarbananda Sonowal case (2005), reflected the criticality that the Act had assumed in festering the anxiety around illegal migration and citizenship. The Supreme Court judgement scrapping the IMDT Act located the citizenship question in Assam within the dominant discourse of ‘national security’ and ‘state sovereignty’, characterizing ‘illegal’ migration as an act of aggression. The general principles which were laid down by the court in removing the law articulated citizenship as a vital aspect of state sovereignty, with the policing of national boundaries critical to its entrenchment.  
The second ‘event’ was the signing of the Assam Accord in 1985, which put in place exceptional provisions for the determination of citizenship in Assam. While the IMDT Act was an expression of how a law could become a political instrument for the resolution of the problem of ‘illegal migration’, the Assam Accord opened up space for a ‘negotiated settlement’ of the issue. In the process the accord prepared the ground for two exceptions in the legal order of citizenship: the establishment through law of a hierarchical order of graded citizenship in Assam and the extension of the chronological boundary of citizenship for Assam to 24 March 1971. The Citizenship Act was amended in December 1985 to implement the accord and Section 6A was inserted to address the special circumstances of Assam. The graded model confirmed a hierarchical ordering of citizenship, in which those who were ‘originally’ resident in Assam were entitled to undisputed citizenship. The rest were ‘residual’ citizens, whose citizenship was rendered ambivalent by their linguistic identity or their religion. This ambivalence was sought to be resolved legally by conferring confirmed or deferred citizenship on some. The rest, that is, those who entered India after 24 March 1971, were aliens, and the (ill)egality of their presence was to be confirmed by the IMDT Act. Since both the Foreigners Act and the IMDT Act applied simultaneously and prescribed different modes of determining citizenship, the residual citizens came to occupy a zone of perpetually indeterminate citizenship and suspect legality. The sanctity of the accord as a ‘public contract’, the dispute over the cut-off date prescribed by it which was different from the rest of the country, the ‘additional load’ that Assam had to subsequently bear, and the long-standing question of Assamese identity, which the accord also promised to protect, lingered on and became critical in the churning in Assam over the NRC and the CAA.

Rudraksh Lakra: I have read the first Sarbananda Sonowal v Union of India (2005) judgment by the Indian Supreme Court (“Indian SC”) in detail and my sense was that under the threat of ‘external aggression’ due to the apparent influx of immigrants in Assam the Court almost created a situation of “legal exceptionalism”. Thus, I found it striking when you wrote about how the presence of the “outsider” and the crisis of immigration threatens to disrupt the ‘settled’ notions of membership and belonging. So how was an “illegal migrant” imagined during the political discourses and in Courts vis-a-vis the Assam exception, and what was the potency and impact of deploying this imagination?

Professor Roy: It is interesting that the Sarbananda Sonowal Judgement (2005) delivered after the enactment of the Citizenship Amendment Act of 2003, reflected the characteristics of the ‘third regime’ of citizenship identified with the national security state and the paradox of de-territorialized citizenship. The latter was reflected in the recognition in law of the category of the Overseas Citizen of India and the simultaneous reinforcement of territoriality under Article 355 of the Constitution which made the protection of the territory from external aggression a function of state sovereignty. The ‘illegal migrant’ came to be understood in such a framing as an ‘aggressor’ whose presence was a threat to national security and was consequently a source of anxiety not just for Assam but for the country as a whole. Sarbananda Sonowal was an influential judgement which echoed in subsequent judgements to provide authoritative ground for other exceptions that were subsequently put in place in Assam to resolve the citizenship imbroglio. It must be kept in mind that the analogy of immigration into Assam as ‘invasion’ by ‘land-hungry’ Muslims has been a persistent trope in the discursive practices that have attributed illegality to the movement of people across the eastern borders. The Supreme Court judgement in the Assam Sanmilita Mahasangha (2014) is the most significant among these, which cited the Assam Accord, the amendment in the Citizenship Act in pursuance of the Accord, and the Sarbananda Sonowal judgement as the developments through which the trajectory of citizenship in Assam had taken shape and went ahead to add to the legacy of Sarbananda Sonowal. The Supreme Court judgment in Assam Sanmilita Mahasangha case charted two distinct and mutually contradictory courses: One of these placed Section 6A of the Citizenship Act before a Constitution Bench, opening up the legal resolution of the citizenship question in Assam following the Assam Accord to judicial scrutiny; the other placed the extent to which the Central government had been able to implement the various components of the Assam Accord before the court for evaluation. The trajectory of the first scrutiny, that is, the examination of the validity of Section 6A has remained desultory. The second, that is, the evaluation of the implementation of the Assam accord, ironically, led to a Supreme Court-monitored preparation of the NRC according to the exceptional procedure laid down in Section 4A of the Citizenship Rules 2003. It may be recalled that while the Assam Accord required the identification and expulsion of foreigners, it did not ask that this should be done by updating the 1951 NRC. Indeed, the preparation of the NRC based on the 2003 rules follows the cut-off dates specified in Section 6A of the Citizenship Act, which was entrusted to the scrutiny of the Constitution Bench in the same judgement. In its administrative guidelines, the Supreme Court followed its decision in Sarbananda Sonowal in construing the ‘influx of illegal migrants into the state of India as external aggression’. At the same time, however, it broadened the notion of security to include ‘internal disturbance’, which involved being alert to and eliminating risks to the people of Assam from outsiders. To this end, it directed the attention of the larger bench of the Supreme Court which would examine the constitutional questions precipitated by the petitions, to consider whether the expression ‘state’ occurring in Article 355, referred only to a territorial region or included also the people living in the state, their culture, and identity.

Third Regime and the CAA 

Rudraksh Lakra: Could you introduce the third regime of citizenship, the 2003 Amendment to the Citizenship Act?’

Professor Roy: The third regime of citizenship was spawned by the amendment in the Citizenship Act in 2003. This amendment became definitive in affirming the tendency towards jus sanguinis that had been put in place by the 1986 amendment in the Citizenship Act which made changes in the provisions concerning citizenship by birth. With this amendment, the category ‘illegal migrant’ which was inserted in the citizenship act to address the specific context of Assam through the 1985 amendment, made its appearance in the provision of citizenship by birth. The amendment, moreover, by further constraining citizenship by birth, decisively ensured citizenship’s association with the principle of blood, as descent from parentage of Indian origin became the defining principle for consideration of citizenship by birth. Alongside constraining citizenship by birth by making it dependent on descent, the 2003 amendment inserted the category of ‘overseas citizen of India’ (OCI). The OCI was an ambivalently articulated category, in so far as it recognized de-territoriality of citizenship by extending the privilege of holding an overseas citizen of India card to persons of Indian origin who had acquired citizenship of another country. Yet, the deterritorialization of citizenship through the OCI was deceptive, since it did not allow dual citizenship. The principle of parentage and blood ties was affirmed through another change that the 2003 amendment brought in the citizenship law, which made ‘lineage’ an integral part of Indian citizenship. The 2003 amendment empowered the Central government to prepare a National Register of Indian Citizens (NRIC) and issue national identity cards to persons identified as Indian citizens. The rules framed for the implementation of this provision lay down an exceptional procedure for Assam, whereby those seeking for a place in the NRIC in the case of Assam would be required to provide documentary evidence showing descent from those who were citizens of India of Assamese origin. The regime of ‘documentary citizenship’ as Kamal Sadiq calls it, to prove citizenship through descent, along with the constraints on citizenship by birth, produced a regime of citizenship founded in the logic of a bounded community, based on ties of belonging to a dominant ‘we’ within a Hindutva imaginary of nation-hood and citizenship. 

Rudraksh Lakra: Could you explain how the two trajectories set by the amendments to the Citizenship Act in 1985 and 2003 (which have conjoined) formed the foundation for the CAA? Could you track this transition?

Professor Roy: The third regime of citizenship is a coalescence of tendencies that have emanated from successive citizenship regimes spawned by the earlier periods of change in the citizenship law. The amendment in 2003 may be considered a hinge point from which the NRC and the CAA 2019 emerged and became an integral part of the ideological landscape of citizenship in contemporary India. Having appeared as discrete tendencies out of the 2003 amendment in the Citizenship Act, the NRC and CAA 2019 have become conjoined to produce a spectre of national citizenship based on the logic of descent as the organizing principle. The 2003 amendment provided that the central government may (not shall) prepare a national register of citizens and lay down a procedure to be followed if an NRC was prepared, with a separate procedure in Assam which was one of ‘updating’ the 1951 NRC, which as we know was prepared exclusively for the state of Assam. The same amendment, as stated earlier, laid down that ‘illegal migrants’, that is those who had entered India without valid papers or had overstayed, were not eligible to apply for citizenship through naturalization or registration and their children even when born in India could not be citizens of India by birth. The CAA 2019 made an exception for specific categories of ‘illegal migrants’ that is, Hindus, Sikhs, Buddhists, Zoroastrians, Jains and Christians, who had fled Pakistan, Bangladesh and Afghanistan, before 31st December 2014, to escape religious persecution, and allowed them to apply for Indian citizenship. The NRC, as the experience in Assam has shown us, is a legal regime of enumeration of Indian citizens based on evidence that establishes a legacy of inherited belonging, it is simultaneously, and often primarily, presented as a modality of identifying illegal migrants. The CAA 2019 is embedded in the idea of national-majoritarian citizenship with religion as its distinguishing principle. It makes a distinction among illegal migrants to identify those among them who would be considered eligible for Indian citizenship through naturalization and registration. These two principles—of descent as the organizing principle of citizenship and a provision to protect those who have suffered persecution on religious grounds while simultaneously retaining religion to distinguish between those who are eligible for protection — inform the politics of conjointment that characterizes the present regime of citizenship. Indeed, the two disparate tendencies – NRC as a modality of distinguishing citizens from illegal migrants – and CAA 2019 as a protective regime exempting some from this category – have come together to install exclusionary nationhood under the veneer of liberal citizenship. 

Rudraksh Lakra: In your book, you speak about how the Constituent Assembly laid down some principles that were to govern the issue of citizenship. How does the CAA depart from those principles laid down in the first regime?

Professor Roy: The dilemma in the Constituent Assembly (CA) was around what needed to be explicitly stated in the Constitution and what could be left out for future democratic majorities to legislate. The dilemma was expressed in the debates in terms of a fundamental contestation over parliamentary sovereignty and the status of the Constitution as a higher order law embodying popular sovereignty. If the debate in the CA was on what should be the defining principle of citizenship, from which reasonable deviations could take place in future through laws made by Parliament, the debate in Parliament on CAA 2019 was fundamentally about what should have the force of law. In other words, the debates in the Parliament were animated by the question whether the assumption that the Parliament had the power/competence to make laws on a subject should be sufficient or the content of law should be such that it inspired trust among the people. In his opening statement in the Lok Sabha introducing the Citizenship Amendment Bill 2016/2019, the Home Minister called it a ‘historic Bill’ which would free ‘lakhs and crores’ of people from their tormented life [as refugees/illegal migrants] into a life of dignity as citizens. During the debate, the claim that the Bill was ‘historic’ was disputed by those who saw it as a part of the BJP’s political and ideological project to make India a majoritarian-Hindu nation. In the Constituent Assembly Debates, republican citizenship and the recognition of Parliament’s preeminent role in making laws on citizenship were expected to unfold in tandem to remain consonant with the Constitution—after all, it was the Constitution that was the source of Parliament’s law- making powers. These powers were constrained by the essentials that the Constitution had put in place, which could not be subverted by any law made by Parliament. As stated in response to your earlier question, the CA admitted facing difficulties in framing the ‘legal’ provisions for citizenship. While concerns were expressed over admitting ‘returnees’ to citizenship, the way the ‘permit’ system was being operationalized, and the ramifications it would have on evacuee properties, etc., strong sentiments were expressed in the CA regarding the need to identify Indian citizenship with a Homeland for Hindus, in the same way as other religions have a country to call their own. Apprehensions were expressed in the CA that ‘a weak sort of secularism’ that had ‘crept in’, to make an exception to accommodate the returnees, showing ‘an unfair partiality…to those who least deserve it’. As mentioned before, Nehru sought to register his ‘strong protest’ against these arguments to emphasise that the task before the CA was to lay down the principles that would guide future law, in consideration of equity and justice. Secularism was the principle which for Nehru was paramount in guiding such consideration. It was this principle that was vitiated in the process of enactment of the CAA 2019. The CAA 2019 followed the principle articulated in the Joint Parliamentary Committee (JPC) report which reiterated the Sarbananda Sonowal Judgement to argue that ‘misconceived’ notion of secularism should not stand in the way of state sovereignty, made manifest in its function of protecting the national borders against indiscriminate influx of illegal migrants. Indeed, the JPC’s position that religion as the criterion for distinguishing between one and another kind of illegal migrants was not only constitutional it was also moral because it sought to correct a historical wrong – became the dominant argument in Parliament, replacing secular constitutionalism with communitarian majoritarianism. The debate over the legislative powers of Parliament on ‘all matters concerning citizenship’ is also interesting. While the JPC and Parliament considered the powers of Parliament drawing from Article 11 unfettered, a strand within the CA, consisting of those who favoured a religion-based definition of citizenship, were of the firm opinion that any change in the constitutional principles defining citizenship through a law made by Parliament, should be construed an amendment of the Constitution itself.

Popular protest in response to CAA/NRC/NPR and Transformative Constitutionalism

Rudraksh Lakra: The chapter I found most interesting was chapter 4 in which you tracked the popular protest in response to the CAA. What made this movement of resistance popular, how was the constitution linked to the protests and what role did the constitution play in this protest?

Professor Roy: The contemporary landscape of citizenship presents a deep paradox. The anti-CAA protests spanned the breadth of the country, expressing heightened consciousness about citizenship by recalling the constitutional moment. This period has also been one when the salience of the state as the disburser of citizenship was affirmed and reinforced through the CAA 2019. It is significant that the state made its power of disbursement emphatic by charging anti-CAA protesters under sedition provisions and laws such as the UAPA, which come with the objective of curbing terrorist and unlawful activities. As people read out the Preamble of the Constitution and held up its copies in sit-ins and rallies, and displayed posters with the text of the Preamble inscribed on them, the Constitution became the most visible symbol of people’s disquiet and indignation. Two months into the protests, the Constitution also became a ‘bestseller’. A publisher, who earlier sold only a thousand copies of the Bare Act of the Constitution in a month, reported a fivefold increase in sales. Interestingly, the act of ‘reading out’ from the Constitution as performance of citizenship, was also seen in June 2019 in Moscow when Olga Misik, a schoolgirl, read out the constitutional rights of the Russian people listed in the Constitution in a pro-democracy rally. The ‘lone figure’ of Olga Misik sitting cross-legged in front of a heavily armed Russian riot police reading out from the Constitution, became almost as iconic as the figure of the ‘lone man’ facing a line of tanks in the Tiananmen Square in Beijing in the summer of 1989. In protesting against the CAA 2019 through constitutional symbols, the protestors were recalling the principles that were adopted in ‘extraordinary’ moments of intense constitutional participation and deliberation. By lobbing the text of the Constitution into the public domain as a reminder of constitutional politics, a resurgence of citizenship could be seen in different sites, including Shaheen Bagh and Assam, which were assembled in different ways, but all of which expressed anxiety over estrangement and abandonment that the CAA would bring in its wake. Such acts of resurgent citizenship sought speech that called for careful listening and transversal communication, which would make a banal act of reading the Constitution a ‘stirring’ cry for fraternity.

Some observations by court in the orders that came during the protests become important in this regard in so far as they point towards the interactive and iterative spaces that the protests produced. One of these, by the Aurangabad bench of the Bombay High Court, while quashing the ADM’s order denying permission for protests in the Idgah ground in Beed district, looked for reasons in constitutionalism and the rule of law, and the legacy of the freedom movement that made the Republic intelligible to the people. The court considered that in such cases, it was the duty of the Government to talk to the people and convince them. In an order delivered in February 2020, the Supreme Court also emphasized the need for communication with the protestors in Shaheen Bagh and appointed a three member committee to act as ‘interlocutors’ to help lift the impasse. In the Idgah case too, the judges reminded the government of its responsibility to convince the people.  Importantly, however, the judges also felt that it would be wrong to presume that it was ‘only a particular community or religion’ that was interested in opposing the CAA, especially since the ADM’s order had mentioned that ‘persons of all religions’ had started the agitation.  The possibility that ‘many persons of all the communities’ may feel that the law is ‘against the interest of mankind, humanity or the basic human values’, persuaded the judges to locate the sentiment in ‘the history of the constitution’ and a sense of fraternity that ‘the freedom struggle’ had instilled in the journey towards the Republic.

Rudraksh Lakra: I have often seen the majoritarian Hindutva forces using the constitution and the preamble and other such national symbols of unity for political gain. For instance, the recent ‘har ghar tiranga movement’. How do we counteract this co-option and what lessons can be taken from the CAA protests to strengthen popular movements founded on constitutional ideals?

Professor Roy: Both the Constitution and the national flag are evocative symbols that produce strong feelings of attachment to abstract categories such as the nation. The national flag is a symbol of freedom and sacrifice representing the legacy of the national liberation movement, and the Constitution of India is the source of a sovereign citizen identity. Both these symbols embody a space of relationships that capture the distinctiveness and ambiguities in the making of that space. In the Constituent Assembly, the adoption of the national flag invoked powerful sentiments of harmony even as debates around the question of citizenship as legal belonging were fraught with question pertaining to what would be the fundamental principle of membership – ‘blood’ or ‘soil’ – each pointing to a different sentiment of belonging – lineage and land – and expression of citizenship – ‘ethnic’ drawing from attachment to the nation as community with roots in the past, and ‘civic’ – pointing to an attachment to the solidarity of citizens looking towards a constitutional future. The Constitution itself we may remember was laying down norms which were meant not simply to empower or restrain political actors but as Madhav Khosla argues – to serve as a ‘pedagogical tool’— as a mode of imparting political education to build a ‘new civic culture’. It may be remembered that these tools of both restraint and civic education were being developed under conditions of  what Vatsal Naresh calls ‘high passions’ in the Assembly induced by the Partition. 

The ‘national consciousness’ with which the flag was associated when it was adopted in 1947, transitioned with the 42nd Constitutional Amendment Act (1976) to ‘cherishing’ and ‘respecting’ it as ‘fundamental duty’ – an ‘obligation’ which every citizen owed to the nation.  In 2022, celebrating the 75th year of independence, the idea of ‘bringing the flag home’ (har ghar tiranga) was sutured into a regime of citizenship that rests on sentiments of conservative populism and majoritarian nationalism. It must be remembered that the domestication of the flag was preceded by a strong citizen movement that resurrected the constitutional moment while protesting the Citizenship Amendment Act 2019. The movement made both the national flag and the Constitution powerful tropes in the expression of indignation and outrage. Citizen outrage, I argue, extricated the national flag and the Constitution from an emotional field marked by collective and individual reverence, and relocated them in a space replete with deeply visceral and somatic relationships, with people expressing both trauma and fear over the redefinition of the terms of belonging. Making citizens through attachment to symbols of belonging was in each of these instances an ‘overwhelming’ sentiment: in its adoption in the Constituent Assembly as a cathartic legacy of collective struggle for national liberation; in the 42nd amendment, which came during the national emergency – as a moment of rupture in what was construed as an atrophic legacy from a static past; and in contemporary context – as the resurrection of what was largely a submerged legacy from the founding moment that emphasized descent and blood as the ties that bound the nation, interrupted, however, by reclamation of these symbols through ‘acts of citizenship’ recalling the constitutional moment. The protests over the CAA, which began in December 2019 and continued in Indian cities till March 2020, when the Covid-19 pandemic precipitated a national lockdown, recalled constitutional politics in the urban streets that became sites for the elaboration of citizen democracy. The ubiquitous recourse to the Constitution in street protests made it ‘popular’ and ‘familiar’—belonging to the people. Unlike the engagement of the people with the Constitution in Rohit De’s A People’s Constitution, where the Constitution became a tangible experience for the people in ‘situations of mundane everyday life’ (2018) those protesting against the CAA were re-installing the Constitution in a field of morality, to bring the legislative authority of the state to scrutiny. The rules of validation thus invoked referred not to the ‘force’ claimed by law because of its pedigree, but the notion of justice as a legal virtue. While unmasking the law’s violence, the protestors justified civil disobedience as an ethical means of questioning what they considered an unjust law. In doing so they sequestered the ‘state order’ component of the Constitution from its ‘garantiste’ component, bringing the moral order of constitutionalism in popular vocabulary. The inscription of the Constitution in the popular register was significant for installing the infallibility of normative principles and democratic practices associated with constitutionalism. It is through these registers that the co-option of these symbols of republicanism and democracy in the ruling practices of the state can be actively resisted.

Rudraksh Lakra: How did the pandemic impact these protests and how could we generate the momentum for these protests again?

Professor Roy: The Constitution—as a performative text, as a historical legacy of ideas and icons integral to the national imagination, and as a source of consciousness of democratic citizenship—became a powerful idiom of protests that proliferated across the country after the enactment of the CAA in December 2019. The installation of public spaces of protest through reading, ‘postering’, and ‘posting’ of the Constitution, produced a vocabulary of citizenship interlaced with the constitutional ethic, which persisted until Covid-19 became a pandemic. The ‘pandemic effect’ imposed a different order of public life and political practice, as the state acquired ‘necessary’ powers to put the people under a state of lockdown, and the protests folded up into the virtual space of political communication. On 22 March 2020, the Prime Minister of India exhorted citizens to observe a voluntary janata (people’s) curfew. From 24 March, India went into complete lockdown. ‘Social distancing’—the expression used for what was supposed to be physical distancing considered integral to the so called ‘war’ against the Coronavirus—captured the impact the lockdown had on the hitherto teeming public space. The streets in Delhi and other parts of the country had seen continuous sit-ins and demonstrations against the CAA-NRC since the CAA was passed by the Parliament in December 2019. The pandemic had the effect of making the ‘public’ a potentially dangerous space—a source of contagion—where ‘the public’ as a cluster of infected bodies became a risk. The public was folded up and in, as bodies were isolated and quarantined. As an immediate effect, the streets were emptied out of people—protests were lifted or deferred—announcing a period of hiatus till they reconvened. The almost five thousand women of Mumbai Bagh in Mumbai went home in deference to the health emergency and the women of Hauz Rani in Delhi lifted their sit-in with the resolve to continue it online.

It may be worthwhile to see the pandemic as producing conditions with specific attributes which gave coherence to a new set of constraints, challenges, and even possibilities of citizenship. In a sustained environment of fear of getting sick and dying, the fear of contagion ushered in the isolated monad as the best defence in the ‘war on corona’, which worked on the logic of changing people’s behaviour. At the crux of this logic was the belief that the fear of an unbridled and lethal contagion would make people participate in legal/punitive and medical regimes if they believed that it is for their and society’s defence. Ordinary penal laws that facilitated policing of the public were buttressed by special laws that allowed the government to use emergency powers to protect the people against disasters and epidemics. Among the changes that the pandemic regime brought was the reprivatization of home and privatization of work as the home became the world of work. Domestication of the public occurred alongside cloistering of the private space. The decline of the idea of the public as a space of trust, empathy, and reciprocity made way for distance and suspicion—quarantine, isolation, containment zones, contact tracing—became governmental practices and strategies facilitated by tools/apps for tracing and isolating, sifting, and sorting, and policing the public. Ideas of the public based on equality, fraternity, and public conscience were not part of the discursive framework of ‘prevention through policing’. The images of millions of migrant workers making their way home back from the city, which was never home but was mostly hospitable, to return home, became the most emphatic statement of estrangement from citizenship. The estranged bodies of the migrant workers/pandemic refugees, the untouchable, isolated, and stigmatized body of the infected, represented the ways in which they were pushed into the penumbra of citizenship—their bodies were made visible in an absent public. The stigmatized body of the ‘covid-infectee’ became untouchable even as untouchable bodies became frontline warriors, producing a blurred spectrum of precarious lives. 

The abandonment of the citizen by the state corresponded with the accentuation of the vertical relationship between the citizen and the state. In a context where the deliberative spaces within the political apparatus of the state—government and opposition, government and political party, Centre and the states—waned, the policing functions of the state enhanced exponentially. From public order to public health, the Ministry of Home Affairs became more pronounced as it seeped into all spaces vacated by public power. The augmentation of emergency powers of the state through the Epidemic Act 1897 and the protective role of the state through the National Disaster Management Act 2005 devolved enormous responsibility and simultaneously powers onto ‘Home’ in the governmental apparatus. The overdevelopment of Home in the state apparatus has also been evident in the context of anti-CAA protests and sit-in against the CAA/NRC in parts of North-Delhi where communal riots broke out in February 2020. The precariousness of citizenship became manifest under these conditions. While the Home Ministry exercised the extraordinary powers conferred by these laws, Parliament remained suspended due to the lockdown, and its functions of oversight over the executive were deferred. The use of draconian sedition provisions and the Unlawful Activities Prevention Act (UAPA), which since 2004 after the repeal of Prevention of Terrorism Act 2002 has become the foremost central law to deal with terrorism, against students and activists reflect the way in which the CAA has been sutured to the national security architecture. It is also a testimony to both the limits and possibilities of citizenship and the need for a reflexive citizenship practice founded in shared life and a state that has the capacity to empathize and not merely enforce consent. With the rules under the CAA not yet framed, and the question of its constitutionality being scrutinised by the Supreme Court, ‘popular’ protests may not re-emerge, at least not with the intensity which they occurred in the pre-pandemic period.

Rudraksh Lakra: In the context of the CAA, how do we view the role played by Indian Courts and the popular movement in promoting and protecting the values of our constitution in contrast to one another? Given that in recent times the Indian SC has often been deferral to the state and has been described by some as the ‘Executive Court’. Then, how should we envision the role of and relationship between Courts and the demos in promoting constitutionalism?

Professor Roy: The CAA is being scrutinised by the Supreme Court which has received over 140 petitions questioning the law’s constitutionality. The affidavits have, in different ways, pointed that the law is discriminatory and should be more encompassing, asserting the need to take into consideration Article 14 jurisprudence that has been ‘continuously enhanced’ by the Supreme Court itself – going beyond the ‘traditional’ classification and arbitrariness tests to focus on social context to prevent ‘the entrenchment or perpetuation of disadvantage’. Significantly, in its preliminary counter-affidavit, the Central government argued, among other things, that the question of ‘entitlement and conferment of citizenship’ fell ‘within the plenary domain of the competent legislature’ and that the legislature had the power to ‘devise its own legislative policy’ on citizenship, which ‘may not be within the scope of judicial review and may not be justiciable’. Indeed, it argued more specifically that ‘matters concerning the sovereign plenary power of the Parliament’, especially in regard to citizenship, cannot be questioned before the Court by way of a public interest petition. In some senses then the scrutiny of the CAA by the Supreme Court and the averment by the Centre may show how the ‘inner conflict’ in the Constitution between parliamentary sovereignty and judicial power have unfolded. While the judiciary was decisive in the 1980s in extending its power of judicial review to exercise scrutiny over the legislative and constituent powers of Parliament, this trajectory has been uneven. Through much of the 1980s and 1990s, in a manifestation of ‘judicialisation of politics’, the Supreme Court intervened in governance and policy making, becoming a morally superior partner in political engagements between the state and the people. On the other hand, the judiciary legitimised practices of the ‘neo-liberal security state’ by upholding the constitutionality of extraordinary laws (AFSPA and TADA in the 1990s and POTA in 2002) while steering clear of intervening in economic policy matters. 

Indeed, as legal scholars like Gautam Bhatia have pointed out there is a tendency among judges to eschew ‘independence’ in deference to the executive and the government, with the result that the courts, ‘instead of checking and limiting government power’ have become ‘executive courts’, ‘marching in lockstep with the government, and being used to set the seal of its prestige upon more controversial parts of the government’s agenda’. While the petitions questioning the constitutionality of the CAA are still being heard by the Supreme Court, earlier in the course of the protests around the CAA, the courts responded in different ways. In December 2019, for example, while giving bail to Chandrashekhar Azad of the Bhim Army who was arrested by Delhi Police for leading and organizing an ‘unauthorised’ protest at Jama Masjid, in which Azad read out the Preamble of the Constitution, the judge was reported in newspapers as having asked the public prosecutor to show her the law which prohibited someone from protesting outside religious places. In what was construed as a firm indictment of the police, she reportedly asked the public prosecutor, ‘Have you read the constitution?’. A few days before the order in Azad’s bail petition, a Delhi High Court bench of Chief Justice D. N. Patel and Justice C. Hari Shankar had refused a plea which had asked the court to issue directions for the removal of the Shaheen Bagh sit-in to a designated place to alleviate the inconvenience it was causing to large numbers of people. Later, after the lockdown had folded up the protest, a three-judge bench of the Supreme Court in the case of Amit Sahni vs. Commissioner of Police turned their attention to the relationship between dissent and democracy. While starting from the premise that ‘democracy and dissent go hand in hand’, the judges made it clear that dissent must take the form that ‘yields to social interest’. An ‘in-determinable number of people’ could not ‘assemble whenever they choose to protest’. Indeed, stating that the Shaheen Bagh protest was ‘blockage of a public way’ and not even a case of protest in an undesignated space, the judges drew attention to the dangers of social media which had the potential of scaling up ‘leaderless protests’ and create ‘highly polarized environments’. The Aurangabad bench of the Bombay High Court, however, chose to see the protests as located in ‘the history of the constitution’, and the sense of fraternity that ‘the freedom struggle’ had instilled in the journey towards the Republic. The agitators, they stated, could not be called ‘traitors’ and ‘anti-nationals’ for opposing the law. The people’s relationship with the Courts has been explored in different ways. Rohit De for example, has shown how the Constitution became a tangible experience for the people in ‘situations of mundane everyday life’. Others like Upendra Baxi who have seen the extension of judicial power into the domain of the ‘social’ as an attempt to curb state power or to plug its deficiencies, described the judiciary as ‘a people’s ally contributing to social movement for redemocratization’. Baxi termed this ‘judicial populism’, which characterised judiciary’s transformation into the last resort for the suffering people, and allowed it to claim moral authority at a time when institutions were facing a ‘legitimation crisis’. Yet, in its quest for popular legitimacy by becoming the people’s court, the Supreme Court opened itself not only to ‘the dynamics of disenchantment’, as Baxi argued, by promising ‘more than it could deliver’, it also lent itself to a mimetic politics of populism. The relationship between the government and the Supreme Court subsequently became, as Anuj Bhuwania calls it, one of ‘competing populisms’.  Considering that the judiciary is located within the domain of the state, with a constitutionally mandated ‘separate’ and ‘pristine’ domain of power, one could argue that it is in the moments of articulation and entrenchment of constitutional values that the contest between the executive and the judiciary in the institutional space of the state becomes visible. From the first amendment onwards the ‘people’ have figured in this contest in uneven ways.

“Utterly Failed To Prove Linkage”: The Discriminatory Barriers To Women’s Citizenship Claims in Assam 

Gayatri Gupta is a law graduate from NALSAR University of Law, Hyderabad, India and is currently working at the Supreme Court of India. She has a keen interest in human rights law and refugee and citizenship law. She worked at Parichay Legal Aid Clinic from January 2020 to March 2022. She may be reached at


Nivedita Menon has argued that the foundation of citizenship “is primarily based on proof of birth in a heterosexual patriarchal family, an institution that structurally undergirds caste, class, and gender injustice” [emphases mine]. It is this unquestioning acceptance of the heterosexual patriarchal family—based on marriage and the sexual division of labour—that has helped produce and maintain a particular notion of the nation-state and citizen. Menon identifies the familial foundation of citizenship to be the reason why citizenship is exclusionary towards women and is thus an inherently feminist issue. In this article, I examine the legality of the sui generis citizenship determination regime in Assam against the standard of gender equality and anti-discrimination law.[1] Through a qualitative study of Gauhati High Court (‘Gauhati HC’) cases relating to the Foreigners’ Act, 1946,[2]I critically analyse the impact of the seemingly ‘neutral’ rule of demanding documentary evidence to prove citizenship on women proceedees.[3] I conclude that the Foreigners Tribunals (‘FTs’) in Assam operationalise these evidentiary rules to have a discriminatory effect on women litigants.

Understanding indirect discrimination

Articles 14, 15 and 16 of the Indian Constitution form the equality code. The scope of this code is not limited to the formal conception of equality but embodies a substantive notion, whereby existing individual, institutional, and systemic barriers are taken into account to ensure equal protection of the law.Anti-discrimination law, specifically the concept of indirect discrimination, is closely linked to the concept of substative equality [see Nitisha v. UOI, Anuj Garg v. Hotel Association of India, Jeeja Ghosh v. UOI, Vikash Kumar v. UPSC]. Indirect discrimination occurs when a seemingly ‘neutral’ provision, criterion, or practice puts persons belonging to a specific group (having one or more protected characteristics[4]) at a particular disadvantage by not considering the underlying effects of the provision on that group.

Many Supreme Court decisions have affirmed the existence of indirect discrimination. Justice Chandrachud in Navtej Singh Johar, while assessing the constitutionality of Section 377 of the Indian Penal Code,  observed that what is relevant is the “effect” the impugned provision “has on affected individuals and on their fundamental rights”. Thus, state action which is facially neutral but has a disproportionate impact upon a particular protected class of persons is prohibited by indirect discrimination. Most recently, in  Lt. Colonel Nitisha v. Union of India, indirect discrimination under Articles 14 and 15 was expressly recognized, and the Supreme Court adopted the two-pronged test laid down in Fraser v. Canada for an indirect discrimination enquiry. The first step is to assess whether the impugned rule disproportionately affects a particular group; the second step is to see if this rule has the effect of reinforcing, perpetuating, or exacerbating disadvantage.

Having explained the contours of indirect discrimination law in India, the next section will analyse how apparently neutral procedures, such as those currently employed in Assam’s citizenship determination regime, disproportionately impact women proceedees, and end up excluding them from public participation.

Operation of Foreigners’ Tribunals in Assam

A separate legal regime focused upon ‘kaagaz’ (papers)has been created in Assam to identify ‘foreigners’ and ‘illegal immigrants’. Under the Assamese citizenship determination regime, inserted via Section 6A of The Citizenship Act, 1955 in the aftermath of the Assam Accord, persons of Indian origin who came from Bangladesh before January 1, 1966 and have been ordinarily resident in Assam since then are considered as Indian citizens. Those who came between January 1, 1966 to March 25, 1971 would have to register themselves with the Central Government, and their names would be cut off from electoral rolls for a period of ten years. At the expiry of ten years from their date of registration, they would be considered Indian citizens.

The Foreigners’ (Tribunals) Order, 1964 is a subordinate legislation under the Foreigners’ Act, through which FTs are set up by the Central Government to determine the legal question of whether a person is a foreigner. In 2005, FTs became extremely critical after the Supreme Court struck down the Illegal Migrants (Determination by Tribunals) Act, 1983, and transferred all pending IMDT citizenship cases to FTs. Subject to the limited procedural requirements mentioned in the 1964 FT order, FTs are empowered to regulate their own procedures, raising concerns about due process and rule of law. With the publication of the final NRC list, a case can now come before an FT in three ways: cases referred by the Assam Border Police, ‘doubtful’ voter cases referred by an Election Registration Officer, and the appeals process in the NRC (which is yet to start).

It is important to note that under the Foreigners’ Act, the burden of proof is reversed and placed on the individual to prove that she is not a ‘foreigner’. Due to this reversed burden of proof, an individual is expected to discharge a higher standard of proof by supporting her citizenship claim with a wide variety of documentary evidence. The documents required in FT proceedings can be broadly understood in two categories of legacy and linkage: legacy documents showing the individual or her ancestor’s presence in Assam before March 25, 1971 (such as electoral rolls, land and tenancy records, the 1951 NRC); and linkage documents showing a link between the individual and her ancestors mentioned in the legacy document (such as birth certificates, school leaving certificates, gaonburah certificates).It is this seemingly ‘neutral’ requirement of producing documentary evidence to prove citizenship that is being challenged in this article.

Indirect Discrimination faced by Women in Assam

To test how the ‘neutral’ rule of demanding documentary evidence to prove lineage imposes an onerous burden on women, I analysed a total of 48 Gauhati HC cases from the year 2020. Out of the 48 cases analysed,[5] 30 cases (i.e. 62.5%) had female litigants. Within these 30, more than half (17 cases i.e. 56%) were argued on evidence,[6] and the remaining cases were challenges to ex-parte FT orders. I analysed the 17 cases which were argued on evidence, where the women litigants exhibited documents from as few as two to as many as fourteen.  Yet in all the cases except one, the documentary evidence exhibited was held to be ‘insufficient’ and the women were declared foreigners due to a failure in proving linkage. This means that although women litigants were able to exhibit documents showing the presence of their ancestors in Assam before March 25, 1971, they still failed in proving their lineage from these ancestors.

This difficulty in proving lineage is quite understandable considering the socio-economic status of female proceedees. Sexual division of labour and historical public-private divide has identified a  man’s role in the public world of politics and paid employment, and a woman’s role in caring and child-rearing at home.Thus, a man’s access to the public sphere is privileged, whereas barriers are placed on a woman’s entry to this public sphere. Consequently, women’s access to documentation used to prove linkage—such as voter lists with both their names and their parents’ names, birth certificates, school leaving certificates etc.—is abysmal.

Intersectional barriers to the access of documentary evidence

As per the National Family Health Survey-5, Assam is one of the twelve states showing a higher prevalence of child marriage than the national average. This indicates that a substantial number of Assamese women, especially in rural areas, get married and move to their matrimonial houses even before they can vote. This assumes significance because married women litigants struggle to produce any documents which link them to their father, and voter lists are one of the very few options available to litigants for this purpose. However, married women’s voter lists end up becoming worthless, since their names are reflected as ‘wife of’ (their husband) instead of ‘daughter of’ (their father) in the records.  In all the 17 cases I surveyed, the women litigants had been married for decades, with one of the cases specifically mentioning that the woman was married at puberty.

Despite these ground realities, judges still draw adverse inferences from female litigants’ inability to produce electoral rolls with both their and their parents’ names. For instance, Momila Khatun exhibited as many as 11 documents, including voter lists with her grandparents’ and parents’ names since the year 1966, and her own name in the 2017 voter list, written alongside her husband’s name. She specifically pleaded that“due to lack of knowledge and ignorance of the implications of the voting right she has not been able to enroll her name with the parents.”Yet, after twenty two years of her case referral, Momila Khatun was declared a foreigner as she was unable to show any connection with her parents through “cogent, reliable, and admissible” documents. Despite having no control over the documentation of her life and no agency on when and where her name was entered in the electoral rolls, she was heavily penalised for the same.

The discriminatory impact is exacerbated when we consider the status of women living in poverty belonging from marginalized and oppressed communities. According to the 2011 Census, 86% of Assam’s population lives in rural areas, with the female literacy rate in rural areas being 63%. Consequently, poor rural women are forced to drop out of school at a young age, resulting in the absence of their names on crucial documents such as school leaving certificates. Women’s access to such educational board certificates—which generally record the name of the student along with her parents’ names at the time of 10th/12th Standard—becomes very difficult. From the cases analysed, school certificates were exhibited in only 4 of the 17 cases, with women litigants having generally studied till primary school.[7] In only one case, Shahida Khatun was able to produce her 10th Standard HSLC admit card, showing a link between herself and her father. However, this was still held to be insufficient as the father could not depose to support her case.

For poor, rural, married Assamese women, faced with the impossibility of producing school certificates and voter lists, gaonburah certificates (issued by the village Panchayat Secretary to prove linkage between the daughter and her parents) are commonly presented to prove linkage. However, FTs often impose a higher evidentiary burden on women to produce these documents, and rarely accept them. From the cases surveyed, 12 female litigants exhibited gaonburah certificates and all of them were disregarded. FT members insist that for gaonburah certificates to be admissible (as held by the Supreme Court in Rupajan Begum v. Union of India), their contents must be proved by legal testimonies of the issuing authority i.e. the Panchayat Secretary herself. At this first stage itself, ensuring the presence of the issuing authority to depose becomes an uphill task,[8] as FTs rarely use their power to summon.[9] In the selected cases, even when the litigant was able to secure the gaonburah’s presence, their testimonies were held to be unreliable, with FTs citing non-production of contemporaneous records[10] or insufficiency of knowledge.[11] This shows how the deck is stacked against women in FT proceedings. The uncertainty around how an FT will consider a piece of evidence creates a ‘design of exclusion‘, heightening the precarious citizenship status of Assamese women.

Complete disregard of oral evidence

Lastly, even when one of the parents or a close relative comes forward to orally testify to prove the fact of linkage, their testimony is disregarded in the absence of any documentary evidence about the relationship. I identified 8 such cases in which either a father, mother, brother, or step sister deposed towards the existence of a relationship.[12] Dhiljan Nessa was able to show the presence of her father, Kitab Ali, through electoral rolls of 1966 and 1971. To prove linkage, she submitted a gaonburah certificate and her father even deposed as one of the witnesses, but his testimony was rejected. In 7 of the 8 cases, the Court held that oral testimony sans documentary support was not sufficient to prove linkage. Such a disregard of oral evidence of family members, who directly possess knowledge as to the existence of a parental relationship, goes against Indian Evidence Law. Section 50 of the Indian Evidence Act clearly states that oral evidence and conduct of someone who has “special means of knowledge” for proving the existence of a relationship between two persons is relevant and admissible. Thus, when the oral evidence tested on cross-examination is found to be credible and trustworthy, the tribunal should not insist on documentary evidence to corroborate each and every fact spoken. These basic evidentiary rules are being violated by FTs’ uninformed insistence on documentation.

In a series of identical cases challenging the FT orders, the Gauhati HC disregarded the oral testimonies of close relatives which were brought in to prove linkage in the absence of supporting documentary evidence.[13] However, another two-judge bench of the Gauhati HC insisted that all facts cannot be proved by documentary evidence alone, and that it was essential for FTs to appreciate oral evidence as well. This ratio remained lost in the chaos of FT proceedings until 2021; the bench led by Justice Kotiswar Singh in Haidar Ali v. Union of India held that it is unreasonable to expect people in adverse socio-economic conditions, especially in rural Assam, to have documents like registered birth certificates and in such cases, oral evidence may be led to prove relevant facts for citizenship claims. The bench unequivocally stated that “it is nowhere mandated that he [the litigant] must prove all these facts by documentary evidence only.” [emphases mine] The insistence on considering oral evidence has been reiterated in Md. Sujab Ali v. Union of India and Puspa Khatun v. Union of India.

The Haidar Ali judgment has not been challenged by the State; however, since these contradictory judgments on oral evidence are given by coordinate benches (benches of the same strength), the State can still cherry-pick an older judgment pre-Haidar Ali to argue against litigants. Until the matter is resolved by a full bench (of three Justices) of the Gauhati HC, FTs can continue to devise their own procedures and insist upon documentary evidence, operating in complete darkness from public scrutiny. Thus, documentary evidence has become an elusive piece of the citizenship puzzle, especially for women litigants in Assam.


The case laws reviewed show how the requirement of documentary evidence for proving lineage may appear to be neutral, but when considered in light of historical disadvantages and disenfranchisement faced by women, it places an undue burden upon them. Women are denied the exercise of their right to access justice because of a failure to take into account the pre-existing gender-based disadvantages that they face. When laws do not account for gendered social norms in participation in the public arena, documentation practises, literacy levels, and access to necessary legal processes, the effect of so-called neutral citizenship determination procedures is exclusionary.

The author would like to thank the Editorial Board at Parichay Blog, Arunima Nair, Arushi Gupta, Darshana Mitra, and Rupali Samuel for their suggestions and comments.

[1] Also see Ditilekha Sharma, Determination of Citizenship through Lineage in the Assam NRC is inherently exclusionary, Economic & Political Weekly (Vol 54, Issue 14), April, 2019; Amnesty International, Designed to Exclude: How India’s courts are allowing foreigners tribunals to render people stateless in Asssam (2019); Trisha Sabhapandit & Padmini Baruah, ‘Untrustworthy and unbelievable’: Women and the Quest for citizenship in Assam, Statelessness and Citizenship Review (2021); Saika Sabir, Gender Discrimination in the Indian Citizenship Regime, presented at

[2] For the case study methodology, the author used the search word “Foreigners Act, 1946” on the SCC database, and narrowed down the results by the court (Gauhati High Court), and the time period (2020). The entire list of 49 cases accessed from SCC can be found here:

[3] ‘Proceedee’ is a word used commonly in the Foreigners Tribunal proceedings to refer to  the individual who is alleged to be a ‘foreigner’.  Another term that is commonly used is ‘Opposite Party’.

[4] ‘Protected characteristic’ is a term in equality law that refers to the personal characteristics, defined in the applicable law (such as race, caste, gender, age etc.), that are legally protected from discrimination.

[5] Serial no. 33 [XXX v. Union of India] has been excluded from the count since it was a suo moto writ petition dealing with decongestion of prisons and detention centres during the pandemic, and did not have any identifiable writ petitioner.

[6]  The list of 17 cases are as follows: Jarful Khatun v. Union of India, Raina Begum v. Union of India, Dhiljan nessa v. Union of India, Jayeda Begum v. Union of India, Shahida Khatun v. Union of India, Momila Khatun v. Union of India, Tapuran Bibi v. Union of India, Abia Khatun v. Union of India, Jamala Begum v. Union of India, Farida Khatun v. Union of India, Anur Bibi v. Union of India, Jahanara Begum v. Union of India, Surabala Namasudra v. Union of India, Shipa Begum v. Union of India, Amina Khatun v. Union of India, Golap Banu v. Union of India and Mohila Begum v. Union of India. Available at:

[7] Raina Begum v. Union of India, 2020 SCC Online Gau 4873[Class II]; Fardia Khatun v. Union of India, 2020 5 SCC Online Gau 4735 [“Class I”]; Shahida Khatun v. Union of India, 2020 SCC Online Gau 3097; Shipa Begum v. Union of India, 2020 SCC OnLine Gau 482 .

[8] Jarful Khatun v. Union of India, 2020 SCC Online Gau 3835; Tapuran Bibi v Union of India, 2020 SCC Online Gau 2977; Abia Khatun v. Union of India, 2020 SCC Online Gau 2774; Anur Bibi  v. Union of India, 2020 SCC Online Gau 1269; Surabala Namasudra v. Union of India, 2020 SCC Online Gau 473.

[9] Para 4, The Foreigners (Tribunals) Order, 1964. See Jarful Khatun v. Union of India, 2020 SCC Online Gau 3835 wherein the FT rejected the proceedee’s application to summon the Gaonburah.

[10] Dhiljan Nessa v. Union of India, 2020 SCC Online Gau 3668 [“Gaonburah issued the certificate on verbal request though he never maintained official memo number/reference to issue such type of certificate”];

[11] Golap Banu v. Union of India, 2020 SCC Online Gau 202 [“He (Gaonburah) issued the Certificate only on the basis of personal knowledge and not from any records. DW-2 stated that he has known the petitioner when she was about 10 years old”]; Jahanara Begum v. Union of India, 2020 SCC Online Gau 1393 [“Gaonburah admitted to the fact that he does not know the father of the petitioner and further that the petitioner is known to him only since 1996, which is much after the cut-off date of 25.03.1971”]; Amina Khatun v. Union of India, 2020 SCC Online Gau 4191.

[12] Jarful Khatun v. Union of India [brother], Raina Begum v. Union of India [mother], Dhiljan Nessa v. Union of India [Father], Tapuran Bibi v. Union of India [Brother], Jamala Begum v. Union of India [Brother], Farida Khatun v. Union of India [Brother], Jahanara Begum v. Union of India [Brother], Anur Bibi v. Union of India [Step sister].

[13] Rahima Khatun v. Union of India, 2021 SCC Online Gau `106, ¶6; Jarful Khatun v. Union of India, 2020 SCC OnLine Gau 3835, ¶6; Tapuran Bibi v. Union of India, 2020 SCC OnLine Gau 2977, ¶6; Anur Bibi v. Union of India 2020 SCC OnLine Gau 1269; Jahanara Bibi v. Union of India, 2020 SCC OnLine Gau 1269, ¶6. Two-judge benches led by J. Manojit Bhuyyan.

State v. Bikram Singha, FT Case no. 129/2017

Read the order here

Date of the decision: 10.09.21

Court: Foreigners’ Tribunal-II, Karimganj, Assam

Presiding Tribunal Member: Mr. Sishir Dey 

Summary: In a decision on the determination of the citizenship of a person, the Foreigners’ Tribunal recognised the statutory right of citizenship by birth for persons born in India prior to 1.07.1987  under Section 3(1)(a) of the Citizenship Act, 1955. Further, the Tribunal ruled that it could rely on a common Application Receipt Number (ARN) and joint inclusion in the Final National Register of Citizens (NRC), published on 31.08.2019, for the purpose of establishing linkage between the Opposite Party (OP) and their parents, as the NRC is ‘final’ and thus can be used as evidence to corroborate citizenship claims. 

Facts: The Election Officer marked the status of Bikram Singha (“Opposite Party”) as a ‘doubtful’ voter. This was done after the Election Officer suspected the citizenship of the Opposite Party (OP) whose name was in the electoral roll of 1997. Electoral officers are authorized to flag people listed on voter rolls, supposedly without adequate Indian documentation, as “doubtful” voters. This process started on 10th December 1997, when the Election Commission under the advice of the Asom Gana Parishad (AGP) government marked 3,70,000 voters as “doubtful”. A doubtful voter cannot vote because their Indian citizenship is under suspicion. As a result, D-voters are disenfranchised by the government on account of their alleged lack of proper citizenship credentials. 

The Election Officer alleged that the OP had not produced any documents to the Local Verification Officer, and referred the case to the Superintendent of Police. Subsequently, the case was referred to the Foreigners’ Tribunal, which adjudicated upon whether the OP was a foreigner or not. To prove his citizenship, the OP produced as many as twelve documents and two witnesses. It was his case that he was born on 06.01.1978 at Jamirala village. In effect, he argued that he was a citizen by birth under Section 3(1)(a) as he was born in India before 01.07.1987. In addition, he contended that his ancestors and family members had been permanent residents of Jamirala, and his father’s name was enlisted in the Voters List of 1970. His father even served the Indian Air Force for 29 years.

In response, the State contended that Section 3 was not applicable, as only Section 6A applied in Assam. In other words, since the OP had not submitted a document prior to 01.01.1966, his parents may have been ‘foreigners’ who migrated to India between 01.01.1966 and 24.03.1971. Further, the OP had relied on his name being included in the NRC to corroborate his claim of linkage with his parents who were born and ordinarily resident in Assam prior to 25.03.1971. The State expressed doubt about the same, specifically “about the finality of Assam NRC published online on 31 August 2019…Submitted that Exhibit – 6 may not be considered as a legally valid document” (paragraph 10). The OP responded that the finality or the legality of the NRC could not be doubted, as it had been published as per the direction and monitoring of the Supreme Court of India. 

Holding: The Foreigners’ Tribunal (FT) (correctly) affirmed the OP’s citizenship under Section 3, noting that Section 6A deals with “persons coming to Assam from ‘Specified Territory’. Their children are not covered by the provisions of section 6A but are covered within the ambit of Section 3 of the Citizenship Act 1955. Thus Section 3 of the Citizenship Act is applicable in Assam as rest of India unless and until it’s repealed, amended or struck down, but nothing of these has happened yet” (paragraph 14). Thus, it may be presumed that the OP was born in India prior to 01-07-1987. Therefore OP is a citizen of India by birth in terms of Section 3(1)(a)

The FT noted that the OP proved his linkage with the persons he claimed to be his parents. To prove his father’s citizenship, the OP submitted his father’s Discharge Certificate Book from the Indian Air Force (Exhibit 3) that showed that the OP’s father had served the Indian Air Force for 29 years. This discharge book also contained the name of the OP, his grandfather, his mother and his siblings along with their relation to the OP’s father. The FT took note of the Discharge Certificate Book and the Pension Payment Order (Exhibit 4) in the name of the OP’s father and held that these two documents prove that the OP’s father served in the IAF. If further held that the Indian Air Force must have verified the citizenship and antecedents of the OP’s father before inducting him (paragraph 12).  The OP also submitted digital evidence of proof that he along with his parents jointly applied under the same Application Receipt Number (ARN) for inclusion in the NRC, and after several rounds of scrutiny, they had all been included in the Final NRC published on 31.08.2019. Although the name of the OP was in the final NRC, the FT noted that it could only be taken to be proof of his linkage with his parents, but not his citizenship. This is because the Standard Operating Procedures state that a D-voter is not eligible to be included in the NRC unless the FT rules that the voter is an Indian citizen. But, the name of the OP was included in the final draft of the NRC despite being identified as a ‘D’ voter and without a clearance from an FT. The FT responded to this anomaly by observing that the “NRC authority might not have been able to trace the case filed against the OP and his inclusion may be validated only by an FT order in his favor” (paragraph 12).

Lastly, the FT addressed the legal validity and finality of the Assam NRC. It was observed that the Final NRC published on 31.08.2019 was prepared as per the Citizenship Act, 1955 and the Citizenship Rules, 2003. Further, it was prepared under the order, directions and supervision of the Supreme Court. Hence, the FT ruled that “there is no doubt that this NRC Assam published in 2019 is nothing but Final NRC” (paragraph 13). The FT also affirmed the NRC’s evidentiary value by observing that the names of the parents of the OP, as persons in the list “may be taken as the conclusive proof of their Indian Citizenship” (paragraph 12). In other words, the FT ruled that the NRC is a ‘final’ document that could be taken as conclusive proof of a person’s Indian citizenship unless a reference against them is pending before an FT. In cases where a person’s name appears in the NRC when a reference against them is pending before an FT, the decision of the FT on that person’s nationality will prevail over the NRC.

Significance: This order is significant because it correctly considers the final draft of the NRC as a ‘final’ document that can be relied upon to prove Indian citizenship. Since the publication of the NRC on 31.08.2019, there has been a lack of clarity on the status of the document. The NRC process has been in a logjam since the government has not yet issued the reverification slips to file appeals by those who have been excluded from the NRC. After the publication of the NRC, the BJP harped on the ‘incorrectness’ of the document. Before the 2021 Assembly elections in Assam, the Bharatiya Janata Party in its manifesto promised the ‘correction’ of the NRC. The incumbent Chief Minister of Assam, Himanta Biswa Sarma called the NRC an “incorrect document. This is because out of the 19 lakh people excluded from this final draft, 12 lakh persons were Hindus. In May 2021, the Coordinator of Assam NRC Hitesh Dev Sarma filed a petition before the Supreme Court for the re-verification of the final draft of the NRC. 

This, however, is not the correct legal position. It is clear that the NRC, published on 31.08.2019, is the final document. First, after the publication of the final NRC, the Registrar of Citizenship Registration along with the State Coordinator released an official press statement on 31.08.2019 declaring that the draft of the NRC published on 31.08.2019 was the final NRC. According to Rule 3 of the Citizenship Rules, 2003, the authority to “establish and maintain”  the National Register of Citizens, Assam lies exclusively with the Registrar General of India (RGI). Second, the Ministry of External Affairs released a press statement on 31.08.2019, officially declaring the publication of the final draft of the NRC. Following is an extract from the press release:

1. Yesterday, the office of the State Coordinator, NRC Assam released a press statement on the publication of final NRC as on 31st August 2019. 

2. Since then, there have been some commentaries in sections of a foreign media about aspects of the final NRC which are incorrect. 

8. Exclusion from the NRC has no implication on the rights of an individual resident in Assam. For 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.”

Third, a bare reading of the orders of the Supreme Court in Assam Public Works v. Union of India clearly evinces that the NRC is final. This makes it clear that the NRC is the ‘final’ document. 

In Sufia Khatun v. Union of India, the Gauhati High Court addressed a contention that may seem to have raised doubts about the finality of the NRC. The Court noted that: “It was urged by the learned counsel for the petitioner that the names of the siblings and children of the petitioner have appeared in the Final NRC. In this regard, we are informed that the Final NRC has not yet been accepted and/or notified by the competent authority i.e. the Registrar General of Citizenship Register” (paragraph 14). In this paragraph, however, the Court merely discussed the contention of the state in response to the reliance of the petitioner on the NRC. It did not render its own judgment on the finality of the NRC. Thus, this decision cannot be relied upon to substantiate the argument that the NRC is not final. 

Although the FT order is well-reasoned, it is arguable whether the FT has the power to rule on those questions of law that are not sought to be answered before it. Order 2 read with Order 3(15) of the Foreigners’ Tribunal Order, 1946 states that the final order of the FT must be a concise statement of its opinion on the citizenship of the party before it. Further, in several judgments such as Golapi Begum v. UOI, the Gauhati High Court held that in their final orders, the FTs are supposed to answer only those questions that have been referred to it and not assume jurisdiction to answer other questions. A reading of the order in Bikram Singha suggests that the Karimganj FT was indeed supposed to answer the question of the finality of the NRC in order to fully appreciate the documentary evidence produced by the OP. One of the documents that the OP used to substantiate his claims was the NRC list and this was opposed by the state advocate. The state advocate argued that the NRC could not be considered as evidence as it was neither a final nor a legally valid document. Hence, the FT commented upon the finality of the NRC while considering the NRC as a piece of evidence that proved the relation between the OP and his parents.

In Bikram Singha’s case the Karimganj FT was also faced with the question of the legal admissibility of the NRC. The state advocate argued that the NRC list could not be considered a legally valid document (paragraph 10). This contention is not valid. It does not have a legal basis. In Sanowara Khatun v. UOI, the Gauhati High Court held that because the NRC was not a result of a quasi-judicial process, the OP could not contend that the names of her close family members in the NRC constitute material evidence in deciding her review application (paragraph 9). Thus, the High Court did not consider the final draft of the NRC as material evidence while deciding Sanowara’s review application. At the same time, the Court did not hold that the FTs could not take into account the NRC as material evidence when adjudicating upon citizenship. Hence, this decision cannot be relied upon to conclude that the FTs cannot consider the final NRC as material evidence. Another contention against the reliance on the NRC as evidence was raised by the state advocate in the cases of Sufia Khatun v. UOI and Golokjan Bibi v. UOI. It was contended that the NRC cannot be used as evidence as it has not been notified yet in the official gazette. This is incorrect. In accordance with Section 74 of the Indian Evidence Act, the NRC is a public document and thus the lack of notification in the official gazette does not affect its evidentiary value. 

Apart from the discussion on the finality and the legal admissibility of the NRC, the FT determined another legal issue. It correctly held that Section 3(1)(a) of the Citizenship Act, 1955 applies with equal force to determine the citizenship of the residents of Assam. This has been expressly stated in Section 6A(7), which clarifies that Section 6A does not apply to a person who acquired their citizenship before the commencement of the Citizenship (Amendment) Act, 1985. This means that if a person were born in India or in the state of Assam before 1.07.1987, then such a person would be a citizen by birth. Thus, such a person need not prove their linkage to their parents or grandparents. That the government is not acquainted with this legal position is alarming. 

Table of Authorities:

  1. Sona Khan v. Union Of India, WP(C)/1293/2021.
  2. Golapi Begum vs The Union Of India, WP(C)/2434/2020.
  3. Sanowara Khatun v. The Union Of India, Review. Pet. 16/2020.
  4. Sufia Khatun v. Union of India, Review.Pet. 22/2020.
  5. Orders of the Supreme Court in Assam Public Works v. Union of India, WP(C)/274/2009.


  1. Nazimuddin Siddique, ‘Discourse of Doubt’ , Vol. 54, Issue No. 10, Economic and Political Weekly (09 March 2019 ) accessed on 28 September 2021.
  2. M. Mohsin Alam Bhat, ‘Twilight citizenship’, accessed on 28 September 2021.
  3. Ipsita Chakravarty, ‘Doubtful or dubious: Who will count the D voters of Assam?’, Scroll (21 February 2016) accessed on 28 September 2021.
  4. Shuchi Purohit, ‘Foreigners Tribunals,’ Parichay- The Blog (10 July 2021) accessed on 28 September 2021.
  5. Office of the State Coordinator of National Registration (NRC), Assam, Government of Assam
  6. Sangeeta Barooah Pisharoty, ‘Citizenship and Assam: An Explainer on the Legal Questions That Still Loom Large’, The Wire (25 November 2019) accessed on 28 September 2021.
  7. Farah Naqvi, ‘The Citizenship Amendment Bill and NRC Will Together Destroy Our Country’, The Wire (12 December 2019) accessed on 28 September 2021.
  8. ‘Assam excludes over 19 lakh names from NRC list, BJP unhappy over ‘erroneous’ count,’ The Indian Express (31 August 2019) accessed on 28 September 2021.
  9. Lok Sabha Unstarred Question No.1264, Lok Sabha 
  10. Tora Agarwala, ‘BJP promises ‘corrected NRC’ in Assam manifesto, silent on CAA’, The Indian Express (24 March 2021) accessed on 28 September 2021.
  11. ‘Assam NRC authority seeks re-verification of citizens’ list, The Hindu (13 May 2021) accessed on 28 September 2021.

This case note is part of Parichay’s ongoing project to study, track, and publish key propositions and latest developments in citizenship law and adjudication in India. This note was prepared by Jagriti Pandey.

Section 6A and Assam

The Centre for Public Interest Law, Jindal Global Law School is currently offering the year-long Clinic on Citizenship and Statelessness, where students are developing research outputs on citizenship issues in India and assessing the citizenship determination framework under international law. This research note, prepared by Samia Khan, is part of the clinic’s outcomes.

In the year 1950, the Immigrant (Expulsion from Assam) Act was passed by the Parliament. The objects and purpose of the Act read: “During the last few months a serious situation had arisen from the immigration of a very large number of East Bengal residents into Assam. Such large migration is disturbing the economy of the province besides giving rise to a serious law and order problem” (see here). While the Act allowed the Central Government to give “directions in regard to” the removal of individuals from Assam, the application of the Act was barred against individuals who “on account of civil disturbances or the fear of such disturbances in any area” of Pakistan had been “displaced” or left their residence. While this Act marked the beginning of issues concerning migration, these issues came into the limelight with the liberation of Bangladesh in 1971, which led to a widespread migration from Bangladesh to Assam. 

The subsequent enfranchisement of refugees/migrants prompted the All Assam Students Union (AASU) to spearhead an “anti-foreigner” agitation in 1979, demanding “detection, disenfranchisement and deportation” of foreigners. Despite this agitation and resistance, Indira Gandhi’s government called for assembly elections in Assam in February 1983. While the AASU demanded for a boycott of elections, sections of Bengali Muslims decided to vote nonetheless in order to “effectively prove their claim to Indian citizenship”. These tensions culminated in the Nellie massacre which claimed around 1800 people according to official records, most of whom were Bengali Muslims. In the aftermath of Nellie, two legal developments followed. First, in 1985, a political settlement was reached between the agitators and the Central and State Governments, named the Assam Accord. Introduced through an amendment, Section 6A of the Citizenship Act was a legislative enactment for furthering the terms of this accord. Under Section 6A, any person who entered Assam from Bangladesh before the 1st of January, 1966 will be deemed a citizen of India. Persons who settled in the state between January 2, 1966 and March 24, 1971 would have to register themselves according to the rules laid down by the Central Government and would enjoy all other rights except the right to vote for a ten-year period. (see here) At the lapse of the ten-year period, they would become eligible to be enrolled in the electoral rolls. Finally, all those who migrated after the aforementioned date were to be expelled. 

The second important development happened two years before the Assam Accord, wherein Parliament passed the  Illegal Migrants (Determination by Tribunals Act) of 1983. Read with Illegal Migrant Rules of 1984, these two would act in conjunction to “detect and deport” foreigners by Tribunals established under this Act. The IMDT Act allowed for complaints to be brought to the police by a person living within a 3 kilometer radius of the foreigner suspected to have entered India without the necessary travel documents. It also placed the burden of proof on the State and the complainant, to establish the person’s status as “illegal migrant”. However, the Act was challenged by Sarbananda Sonowal before the Supreme Court. 

In pronouncing the judgement, the Court relied upon a report by the Governor of Assam, S.K. Sinha which claimed that, “Muslim militant organisations [had] mushroomed in Assam” as a result of illegal migration from Bangladesh. While Governor Sinha’s report was not backed by any data or surveys, the Court nonetheless held that there was an “external aggression” against the State of Assam. Subsequently, invoking Article 355 of the Constitution, the Court held that IMDT’s placement of burdens was insufficient to check the issues laid down in Sinha’s report, and hence went on to hold the Act and the Rules unconstitutional. After Sarbananda Sonowal, the regime, rather than being governed by IMDT, returned to Section 6A of the Citizenship Act, the Foreigners Act, and the Foreigners Tribunal Order.

Section 6A and the Assam Accord are often seen as the “genesis of the updated NRC in Assam”. Section 6A is instrumental in the creation of the National Register of Citizens (‘NRC’) in Assam, which is currently being updated under the supervision of the Supreme Court. The process requires a person to prove their Indian citizenship by providing government documents that establish their family legacy and their right to reside in India. This tedious process is often impossible for persons with limited resources, resulting in them being left off the NRC and stripped of the protection offered by citizenship.

It is in this context that Section 6A of the Citizenship Act was challenged before the Supreme Court in a petition by a Guwahati-based civil society organisation, Assam Sanmilita Mahasangha (ASM) in 2012. While referring the case to a bigger bench, Justice Nariman framed thirteen questions of law. 

While a five-judge constitution bench was instituted by Chief Justice J.S. Khehar in 2017 which conducted two hearings, it was decided to reconstitute a fresh bench later. Subsequently, as the question still remains unanswered, it is evident that the lack of clarity has resulted in a lack of clarity about applicable legal standards for citizenship determination in Assam. There is an imminent need for the Supreme Court to rule on the validity of the Section. Delaying the ruling will only be harmful to the lives of thousands whose citizenship hangs in the balance.

Suggested Reading Material :-

  1. Anupama Roy, Mapping Citizenship in India (Oxford University Press 2010) ch 2.
  2. Abdul Kalam Azad, M. Mohsin Alam Bhat and Harsh Mander, ‘Citizenship and the Mass Production of Statelessness in Assam’, India Exclusion Report 2019-2020 accessed 16 June 2021.
  3. Ashna Ashesh and Arun Thiruvengadam, ‘Report on Citizenship Law: India’, GlobalCit Country Report July 2017 accessed 16 June 2021.
  4. Niraja Gopala Jayal, ‘Citizenship’ in Sujit Choudhary, Madhav Khosla, and Pratap Bhanu Mehta (eds), The Oxford Handbook of the Indian Constitution (Oxford University Press 2016).

Deportation and Detention

The Centre for Public Interest Law, Jindal Global Law School is currently offering the year-long Clinic on Citizenship and Statelessness, where students are developing research outputs on citizenship issues in India and assessing the citizenship determination framework under international law. This research note, prepared by Andolan Sarkar, is part of the clinic’s outcomes.

A foreigner as defined in Section 2(a) of the Foreigners Act of 1946 (‘the Act’) means a person who is not a citizen of India.[1] The ambit of this act extends to stipulating the deportation or detention of such foreigners. The definition of a foreigner within the Act, however, is vague since it negates the distinction between refugees, illegal migrants, and asylum seekers.

Deportation entails the expulsion of a foreigner from their current resident country to their country of origin or any other third country by any lawful authority on grounds authorised by law. While detention entails the lawful confinement of any individual, such confinement must be prescribed by any statute and sanctioned by the Court. The relevance of this discussion hinges on the several petitions challenging deportation orders and  thousands of individuals being detained in detention centres in dingy conditions for prolonged periods without a fair trial.

The authority of the Indian State to deport arises from Section 3 of the Act which allows the State to make orders restricting the stay of “foreigners” within Indian territory. Threat to national security, illegal entry into the country, commission of crimes by foreigners, residence within the country after the expiration of visa, violation of visa conditions, and nationality under question are some of the grounds on which the State has previously administered deportation orders.

In Assam, in particular, vide Notification No. 1/7/61–F.III dated the 22nd March 1961, the authority of the state to adjudge individuals as foreigners under clauses (c) and (cc) of Sub–section (2) of Section 3 of the Foreigners Act, 1946, was extended to the Superintendent of Police and Deputy Commissioners under the Govt. of Assam. This was followed by the entrustment of such a power by the President vide Notification No. 14011/13/75-F.III dated 17.02.1976 by virtue of under clause (1) of Article 258 of the Constitution. This was however, subject to the various conditions.[2] The power of issuing orders for detention, however, was not entrusted and yet has been exercised wherein movement of foreigners is being curtailed and they are being placed in foreigner wards in jails or detention centres. This is in conformity with the Madras High Court judgement dated 21.09.2007 in Habeas Corpus Petition No. 1138 of 2006 titled Latha v. Public Department and Innocent v. State of Goa(which later reaffirmed this judgement)wherein it was deemed permissible for the state government to act under delegated powers under Section 3(2)(e) in keeping a foreigner in a detention camp.

Since there is immense administrative control without any definitive statutory grounds based on which deportation can take place, the State has often tried to pass arbitrary orders. For instance, in Kamil Siedczynski,[3] the State issued a Leave India Notice to a Polish student studying in West Bengal for participating in a protest against a new Indian legislation. The Court held such an order to be null and void, since it was arbitrary and without any reason. The Court held that the student was on a valid visa, and merely protesting against the State does not warrant a deportation.

Additionally, The State does not enjoy unfettered discretion to expel any foreigner. Article 21 of the Indian Constitution allows for the deprivation of life and liberty only on the basis of procedure established by law. The deportation of any foreigner must be in compliance with Article 21 and other international principles. A deportation order must be assessed by the courts to be just, fair, and reasonable as interpreted by Article 21.[4] A deportation order restricting the stay of a foreigner must also be proportionate to the end goal that it seeks to achieve.

Few principles in domestic and international law act as safeguards against the deportation of foreigners. For instance, Article 33 of the 1951 Refugee Convention talks about non-refoulement, which means that no State can send foreigners back to the place where they may face the risk of persecution. India has often argued that it has no obligation to comply with the non-refoulement principle since it is not a signatory to the 1951 Refugee Convention. Nonetheless, India must abide by the non-refoulement principle while deporting foreigners as the principle has evolved to be a part of the customary international law and is embedded in several other international instruments to which India is a signatory.

Deportation and detention run hand in hand. Section 3(2)(g) of the Act empowers the State to make orders in relation to the arrest and detention of foreigners. Foreigners awaiting deportation, individuals who do not possess documents, or foreigners whose nationality cannot be determined are kept under detention. Detention is justified by the State on grounds that Article 19 is not applicable to foreigners.[5]

Furthermore, the actions of the government actors flout procedure when detaining individuals under the pretence of them being foreigners. As per Section 4(2) of the Act, every officer making an arrest under Section 4 shall, without unnecessary delay, take or send the person arrested before a Magistrate having jurisdiction in the case or to the officer in charge of the nearest police-station and the provisions of Section 61 of the Code of Criminal Procedure, 1898, (5 of 1898) shall, so far as may be, apply in the case of any such arrest. The same is not undertaken in the initiation of proceedings or competition of proceedings before the FTs.

Foreigners are detained for prolonged time periods due to lack of proper deportation procedures. Deportation can only take place when the receiving country is willing to accept the alleged foreigner. In several cases, foreigners are detained indefinitely as no other countries are willing to accept them. Many alleged foreigners claim to be Indian citizens, but are not able to challenge the decision of Foreigners’ Tribunals. This implies that several Indian citizens may have been wrongfully termed as foreigners and in the absence of any challenges, they still remain under wrongful detention. This runs contrary to the principles enshrined in Article 21 of the Indian Constitution and Articles 9 and 14 of the ICCPR by virtue of which every individual, irrespective of their nationality, deserves a fair trial and has a right to approach the courts.[6]

It is to be noted that the power of detention enshrined in Section 3(2)(g) and Section 4 were deleted from the Foreigners Act vide the Foreigners Amendment Act, 1957 after the then Attorney General of India, Mr. MC Setalvad, conceded to its lack of compliance with Article 21 and Article 22 of the Constitution in the case of Hans Muller of Nuremberg v. Supdt. Presidency Jail, Calcutta, (1955) 1 SCR 1284. Such power was reintroduced by virtue of an amendment in 1962 in light of the war with China. It was via an amendment in 2013, that this power was addressed in Paragraph 3 of the Foreigners (Tribunals) Order, 1964.

Additionally, courts have looked down upon indefinite detention, since it runs contrary to Articles 14 and 21 of the Constitution.[7] In Hussainara Khatoon,[8] the Court spoke about pre-trial detention and stated that “a procedure which keeps such large numbers of people behind bars without trial for so long cannot possibly be regarded as ‘reasonable, just or fair’”. Additionally, the courts, in the case of State of Assam v. Moslem Mandal, (2013) 3 GLR 402stated that there is a limitation of 2 months for the duration of how long a foreigner may be detained.

The detention of foreigners is administrative in nature. These foreigners have not committed any penal offence; therefore, they are placed in detention centres awaiting deportation. Even if convicted of a penal offence, they are placed there after completing their sentence. Foreigners in detention centres must be treated with dignity. Unfortunately, the condition of these detention-centres is highly appalling as they fail to provide the detainees with proper food, water, hygiene, healthcare and other basic facilities.[9] This runs contrary to the hearing in Santanu Borthakur v. Union of India, tagged with W.P. (Crl) 7/2020 titled Abantee Dutta v. Union of India.The courts, vide Order 07.10.2020, observed that foreigners could not be held in jails and that the detention centres created by state government is in compliance with the standards stipulated by the central government.

The Act, first, ought to make a clear distinction between all categories of non-citizens. Further,  it needs to mention definitive grounds based on which deportation can take place. In the absence of such grounds, the administration enjoys too much leeway in administering deportation orders. Most importantly, alleged foreigners cannot be made to live in inhuman conditions within these detention-centres for an indefinite time period. Foreigners ought to be governed by a regime of rights, where they are granted all the necessary facilities within the detention-centres. A foreigner enjoys all rights as mentioned under Article 21. The government and the local-administration should be the first points to ensure the well-being of all foreigners.    


The Search for Foreigners in Assam – An Analysis of Cases Before a Foreigners’ Tribunal and the High Court

Leah Verghese and Shruthi Naik are executive team members at DAKSH India.

The Gauhati High Court recently set aside an order by a Foreigners’ Tribunal in Assam that declared Haidar Ali a foreigner for failing to establish linkage with seven people whose names appear along with his grandparents’ names in the 1970 voter list. This order has once again brought to the spotlight the flawed citizenship adjudicatory process in Assam. To understand these processes better, the authors have analysed 818 orders passed by Foreigners Tribunal No. 4 in Hajo between 16 June 2017 and 30 December 2019 (obtained through RTI) and 787 orders and judgments of the Gauhati High Court delivered between 2010 and 2019, resulting from writ petitions filed against orders of the Foreigners Tribunals. In this article, the authors explore the process of adjudication of citizenship in Assam, in terms of fairness, procedural aspects, and time taken through an analysis of these orders.

Analysis of Foreigners Tribunal orders

98 per cent of the suspected foreigners brought before Hajo Foreigners Tribunal No. 4 during this period were Muslim. This is not reflective of the population of Hajo, which has a 44 per cent Muslim population, and neither are these numbers explained by the demographic composition of Bangladesh. The 1951 census showed that in East Pakistan (today’s Bangladesh), non-Muslims comprised 23.20 per cent of the population. This proportion became 19.57 per cent in 1961, 14.60 per cent in 1974, 13.40 per cent in 1981, 11.70 per cent in 1991 and 10.40 per cent in 2001. The abnormally high proportion of Muslims (as compared to their population in Hajo or even Bangladesh) brought before the tribunal during this period indicates that they are being targeted.

The orders also reflect a serious non-application of the judicial mind. A majority of orders followed a set of templates with only the names of persons, the police station involved, and the dates relating to the case being changed. The descriptions of investigations by the police are like movie scripts riddled with obvious plot holes. In 733 cases, the police claim to have met the suspected foreigners. During these alleged visits, the police asked these suspected foreigners to produce documentary proof of their citizenship, and 570 of them allegedly told the police that they had no documents to prove that they are Indian citizens. The orders do not mention what kind of documentary proof the police asked for.  It is a little difficult to believe that when it comes to a matter as serious as citizenship, 570 people could not produce even a scrap of paper furthering their claim. This leads us to wonder whether the police’s accounts of these visits is credible. In 218 of these cases, the police also concluded which district in Bangladesh (mostly from Maimansingh) the suspected foreigners were from, despite the complete absence of any documentary proof of citizenship. Apart from these alleged meetings with the suspected foreigners, the orders do not describe any police investigation.

Although the police claimed they were able to meet suspected foreigners before submitting their enquiry report, in at least 98 per cent of such cases, they were unable to locate them subsequently to serve a notice to appear before the Foreigners Tribunal. The reason often cited in the orders is that the police could not find the person at their place of residence and local residents and the gaon burahs did not know of their whereabouts when the police enquired with them. We spoke to an advocate practicing at the Gauhati High Court (who has also appeared before the Foreigner Tribunals) who revealed that in some cases, the gaon burahs have also appeared as witnesses for the suspected foreigners and confirmed that the police did not question them and that the person does live in their village. The process adopted by Foreigners Tribunals does not allow the police to be cross-examined by suspected foreigners’ advocates. The lack of a procedure to cross-examine the police leaves no scope to challenge the police’s submissions regarding their alleged meetings with the suspected foreigners and their subsequent inability to find the same people.

The inability to find these suspected foreigners to serve the Foreigners Tribunal’s notice on them works out conveniently for the police and the tribunal. Unlike regular criminal trials where an accused is presumed not guilty and the state has to prove that they committed a crime, the burden of proof as per Section 9 of the Foreigners Act, 1946 is on the person accused of being a foreigner. This reversed burden means that if a person fails to appear before the Foreigners Tribunal, the Tribunal can pass an order declaring them foreigners without hearing the suspected foreigner. We found that 96 per cent of the orders we analysed were given ex-parte. In all these orders, the police produced no evidence to indicate that the suspected foreigners were not Indian. Yet, they were declared Bangladeshi because of the reversal of the burden of proof.

Only in 31 cases were the suspected foreigners allowed to refute the allegations made against them. All these 31 orders were passed by the tribunal member Giti Kakati Das. The progression of her career as a member of the Foreigners Tribunal gives an idea of the effect of declaring a low number of individuals to be foreigners. She was appointed as a member of this Foreigners Tribunal by an order of the Commissioner and Secretary, Home and Political Department dated 29 July 2015 on a contractual basis for one year. After one year, her services were extended for another year, till July 2017. Through a notification dated 20 June 2017, she was denied an extension along with several other members because she had not declared enough people as foreigners. She was reinstated only after she and the others challenged the termination of their services before the Gauhati High Court.

In addition to concerns of fairness, the suspected foreigners also had to go through long drawn proceedings. Given that most of the cases we analysed were decided ex-parte, we expected that these proceedings would have at least progressed swiftly. With a lack of information on the exact filing date of cases before the Foreigners Tribunals, we attempted to understand how long cases took to be disposed of by approximating the filing date as the median date of the year in which the police were asked to investigate the suspected foreigner. This Foreigners Tribunal took on average an astounding 3,637 days, i.e., nearly ten years, to dispose of a case. Of course, with the focus on Foreigners Tribunals in recent years, it is interesting to note that 92 per cent of the cases analysed were disposed of in the years 2018 and 2019 alone. It is also interesting to note that in 82 per cent of the cases, the report of service of notice being forwarded or notice being served in a substituted manner was done in the years 2018 and 2019, although the cases dated as far back as 1999. The cases seem to have been kept in cold storage for several years, then taken out, dusted, and disposed of with undue haste in 2018 and 2019. Further, even though cases were pending for such a long time, the Foreigners Tribunals decided these cases post-haste once the police reported that they could not find the suspected foreigner to serve the tribunal’s notice. In such circumstances (where the individual could not be found) the matter could be decided ex-parte. On average, the tribunal took 39 days from the date of receipt of this report to give ex-parte orders.   

97% of these orders direct that the proceedees be deported. Very few of these, if any, will be actually deported since deportation requires Bangladesh’s consent. According to data placed before the Lok Sabha as of 10 December 2019, only four Bangladeshis have been deported pursuant to their declaration as ‘foreigner’ by Foreigners Tribunals in Assam. If deportation is not possible, persons declared to be foreigners are supposed to be sent to detention centers within prisons in Assam, pending deportation.

Analysis of High Court judgments

41% of cases in the High Court judgments and orders pertained to orders passed by Foreigners Tribunals in the districts of Morigaon, Barpeta, and Goalpara. Although none of these districts share a border with Bangladesh, Barpeta has the largest number of Foreigners Tribunals. 35% of the High Court decisions we analysed involved ex-parte orders passed by Foreigners Tribunals.

All the persons whose cases reached the High Court in the set we analysed, had some form of documentation, ranging from electoral rolls, land records, and panchayat certificates. 61% of them had electoral rolls and 39% had permanent residential certificates/ certificates from the panchayat. In 66% of these cases, the Foreigners Tribunals found the documentation unsatisfactory, and in 38% of them, documentation was rejected because spellings did not match. In 71% of the cases, the secondary evidence was deemed not to be admissible. Secondary evidence is usually a copy of the document and not the original. Such evidence gets rejected because either these were not certified copies or the person who created the document (e.g., panchayat member, school principal, etc.) could not certify its contents.  One in two people were declared foreigners because the authorities that issued the documents produced before the tribunals failed to appear before the Foreigners Tribunals to testify that the documents produced are genuine and authentic to their knowledge.

Along with issues of procedural fairness, the issue of judicial delay was apparent in this round of analysis as well. The High Court took 477 days (1.3 years) on average to decide these cases and the average number of days between hearings was 116 days.. For these numbers to be put in context, they were compared with similar figures for other cases before the Gauhati High Court. As per data available in the DAKSH database for other cases, the average number of days between hearings was 31 days, and the overall time taken to dispose cases was 277 days (0.7 years). The cases filed against the orders of Foreigners Tribunals seem to be taking considerably longer than other cases before the Gauhati High Court, even though these did not involve complex questions of law.   

We found an increase in the number of writ petitions filed before the Gauhati High Court in 2016, with the number of cases being close to double that of the previous year. The Government of Assam set up 64 Foreigners Tribunals in 2014, in addition to the then existing 36 Foreigners Tribunals. The spike in High Court cases may be because of the increase in the number of cases before the newly established Foreigners Tribunals.

The question of citizenship in Assam is nestled in a confusing tangle of documents, bureaucracy, and legal procedures which Foreigners Tribunals and the Gauhati High Court are tasked with resolving. Haidar Ali’s case aptly illustrates this. Ali was declared a foreigner on specious grounds even though he produced eleven documents supporting his claim of being an Indian citizen. This citizenship question is not merely a legal issue. It is also deeply embedded in the political history of Assam. Despite the end of the anti-foreigner agitation in 1985, the anxieties around the issue of migration from Bangladesh remain and have been exacerbated by the National Register of Citizens (NRC) process. Thus, given the political and popular pressure to find and deport foreigners, it is not surprising that the process followed by the Foreigners Tribunals so far has been arbitrary, biased, and unfair. These tribunals High Court needs to be mindful of the lived experiences of identity documentation to avoid an overly legalistic approach in the interests of justice. This issue acquires additional significance in the current context with 19 lakh people excluded from NRC whose cases will get referred to Foreigners Tribunals. Business as usual cannot go on. The process of adjudication of the claims of the persons excluded from the NRC needs to be shorn of the politics that has characterized the process so far and be molded into a fairer and less arbitrary process.   

Gauhati High Court on the issue of Res Judicata in Foreigners’ Tribunal Proceedings

This research note is part of Parichay’s ongoing project to study, track, and publish key propositions and latest developments in citizenship law and adjudication in India. This note was prepared by Sitamsini Cherukumalli and edited by Arunima Nair.

I. Background

Res judicata is a principle of law which states that the final decision given by a competent court on a matter between the same parties is binding, and cannot be put to litigation again. It is enshrined in Section 11 of the Code of Civil Procedure.

It was held by Gauhati High Court in Musstt. Amina Khatun vs. Union of India and Ors. [(2018) 4 Gauhati Law Reports 643] that the principle of res judicata, as articulated by Section 11 of the Code of Civil Procedure, would not apply in proceedings instituted under the Foreigners Act and the Foreigners (Tribunal) Order, since the Foreigners’ Tribunal was not a Court, and the proceedings could not be said to be judicial proceedings.

However, the Supreme Court in Abdul Kuddus vs. Union of India & Ors [(2019) 6 SCC 604] considered, among other questions, the nature of a Foreigners’ Tribunal proceeding. It held that the opinions given by the Foreigners’ Tribunal were quasi-judicial and not administrative in nature, because such orders by the Foreigners’ Tribunals had civil consequences. It elaborated on the difference at para 23:

The opinion by the Foreigners Tribunal is a quasi-judicial order and not an administrative order. The expression ‘quasi-judicial order’ means a verdict in writing which determines and decides contesting issues and questions by a forum other than a court. The determination has civil consequences. Explaining the meaning of quasi-judicial body in Indian National Congress (I) vs. Institute of Social Welfare & Ors (2002) 5 SCC 685, it was held that when anybody has a legal authority to determine questions affecting the rights of subjects and a duty to act judicially, such body of persons constitute a quasi-judicial body and decision given by them is a quasi-judicial decision. It would also be a quasi-judicial order if the statute empowers an authority to decide the lis not between the two contesting parties but also when the decision prejudicially affects the subject as against the authority, provided that the authority is required by the statute to act judicially. Further, what differentiates an administrative act from the quasi-judicial act is that a quasi- judicial body is required to make an enquiry before arriving at a conclusion. In addition, an administrative authority is the one which is dictated by policy and expediency whereas a quasi-judicial authority is required to act according to the rules.

II. Gauhati High Court judgments applying Abdul Kuddus in FT cases

Several recent Gauhati High Court orders and judgments have applied Abdul Kuddus to petitions challenging individuals’ second references to FTs after having been declared Indian citizens in a previous FT proceeding. The Jahir Ali v. Union of India and Ors. [WP (C) No. 3402/2020] judgment was given by the Court on 3-3-2021, in response to a writ challenging an order given by the Foreigners’ Tribunal (1st) Mangaldai, Assam in 2018 declaring the petitioner to be a foreigner, despite an earlier order from 2015 by the very same Foreigners’ Tribunal declaring him to be an Indian National. In the 2018 order, the Tribunal held that the principle of res judicata will not apply in a proceeding under the Foreigners Act, 1946, went into the merits of the case again, and found that the Petitioner had not adduced satisfactory evidence.

The Gauhati High Court held in Jahir Ali that as correct as the Tribunal might have been in following the ratio of Amina Khatun (supra) at that time, it was no longer tenable in light of the Abdul Kuddus judgment. They declined to get into the merits of the case or the quality of the evidence adduced, and reiterated that the earlier decision of the Foreigners’ Tribunal declaring the Petitioner to be an Indian would have a binding effect, given that the opinion rendered by a Foreigners’ Tribunal is a quasi-judicial order and not an administrative one. The Court further said that the Foreigners’ Tribunal cannot go into the merits of an earlier order given on the question as they are not exercising an appellate or review jurisdiction.

By applying the principle of res judicata, the Court remanded the matter and directed the concerned Tribunal to only look into the question of whether the present petitioner is the same person in favour of whom the earlier 2015 FT order declaring him to be an Indian national was passed. If found to be the same person, the case is to be dropped and the petitioner is to be “set at liberty without any condition.”

 In Alal Uddin v. Union of India and Ors. [WP (C) 3172/2020], the petitioner had been proceeded  against twice by the same Foreigners’ Tribunal (2nd) in Nagaon, with the Tribunal first declaring the petitioner as an Indian citizen in 2008 and then subsequently declaring him a foreigner in the impugned order from 2019. The petitioner had contested the maintainability of the second reference before the Tribunal by pleading that Abdul Kuddus would bar the second set of proceedings. The Tribunal rejected this contention by proclaiming that Abdul Kuddus was delivered in the context of Abdul Kuddus’ inclusion in the NRC, and is thus inapplicable to the petitioner’s case. The Gauhati High Court in a judgment dated 12-03-2021 disagreed and held that the Tribunal’s interpretation was incorrect. The bench reiterated that Abdul Kuddus explicitly discussed the legal implications of Sarbananda Sonowal Iand II [(2005) 5 SCC 665 and (2007) 1 SCC 174 respectively] and the nature of Foreigners’ Tribunals, especially that they are quasi-judicial authorities whose orders would operate as res judicata. The Court thus set aside the 2019 order by the Nagaon (2nd) Tribunal, and held that the previous Tribunal order from 2008 declaring the petitioner to be an Indian citizen will stand.

Similarly in Bulbuli Bibi v. Union of India [WP (C) 7810/2019], in a judgment rendered on 22-03-2021, the Court reinstated the petitioner’s first FT order from 2013 that held her to be an Indian citizen and set aside the subsequent FT reference from 2017 declaring her to be a foreigner. Although the two reports of the Government Verification Officer in the two references had inconsistencies in the names of the petitioner’s husband and father, the Court opined that these discrepancies are minor and it was clear that it was the same person, i.e. the petitioner, who had been proceeded against twice. By applying Abdul Kuddus,  the Court held that the second 2017 FT order is hit by res judicata and barred.

III. Table of Judgments from Gauhati High Court post-Abdul Kuddus (chronologically descending from latest first)

S.NoName and CitationDate of JudgementJudge(s) NamesRelevant Extracts
1Md. Abdul Syed v. Union of India  

WP(C) 2447/2021
8-4-2021HMJ. N. Kotiswar Singh, HMJ. Soumitra SaikiaLearned counsel for the petitioner submits that the petitioner has been proceeded twice and, as such, the second proceeding will be hit by the principle of res judicata as held by the Hon’ble Supreme Court in the case of Abdul Kuddus vs. Union of India reported in (2019) 6 SCC 604.   Registry will call for the records in respect of Case No.BNC/FT/609/2016 from the Foreigners Tribunal, Tezpur 5th, Biswanath Chariali, Biswanath, Assam.   Learned counsel for the petitioner submits that the petitioner has not yet been detained on the strength of the impugned order dated 07.12.2019 passed in Case No.BNC/FT/609/2016 by the Member, Foreigners Tribunal, Tezpur 5th, Biswanath Chariali, Biswanath, Assam.   In that view of the matter, in the meantime, the petitioner, if not already arrested, may not be arrested and deported from India. However, the petitioner shall appear before the Superintendent of Police (Border), Biswanath within 15 (fifteen) days from today, who may obtain necessary information and documentation as required under the rules from the petitioner for securing his presence. On such appearance, the petitioner shall furnish a bail bond of Rs. 5,000/- (Rupees five thousand) with one local surety of the like amount to the satisfaction of the said authority in connection with the aforesaid Case No.BNC/FT/609/2016, whereafter, the petitioner shall be allowed to remain on bail. The concerned Superintendent of Police (Border), Biswanath shall also take steps for capturing the fingerprints and biometrics of the iris of the petitioner, if so advised. The petitioner also shall not leave the jurisdiction of Biswanath district without furnishing the details of the place of destination and necessary information including contact number to the Superintendent of Police (Border), Biswanath.
2Ramesha Khatun v. Union of India  

WP(C) 2451/2021
8-4-2021HMJ. N. Kotiswar Singh, HMJ. Soumitra SaikiaLearned counsel for the petitioner submits that the petitioner has been proceeded twice and, as such, the second proceeding will be hit by the principle of res judicata as held by the Hon’ble Supreme Court in the case of Abdul Kuddus vs. Union of India reported in (2019) 6 SCC 604.   Registry will call for the records in respect of F.T. Case No.122/F/15 from the Foreigners Tribunal No.2, Dhubri, Assam.   Learned counsel for the petitioner submits that the petitioner has not yet been detained on the strength of the impugned order dated 28.02.2020 passed in F.T. Case No.122/F/15 by the Member, Foreigners Tribunal No.2, Dhubri, Assam.   In that view of the matter, in the meantime, the petitioner, if not already arrested, may not be arrested and deported from India. However, the petitioner shall appear before the Superintendent of Police (Border), Dhubri within 15(fifteen) days from today, who may obtain necessary information and documentation as required under the rules from the petitioner for securing her presence. On such appearance, the petitioner shall furnish a bail bond of Rs. 5,000/- (Rupees five thousand) with one local surety of the like amount to the satisfaction of the said authority in connection with the aforesaid F.T. Case No.122/F/15, whereafter, the petitioner shall be allowed to remain on bail. The concerned Superintendent of Police (Border), Dhubri shall also take steps for capturing the fingerprints and biometrics of the iris of the petitioner, if so advised. The petitioner also shall not leave the jurisdiction of Dhubri district without furnishing the details of the place of destination and necessary information including contact number to the Superintendent of Police (Border), Dhubri.
3Must. Afia Khatun v. Union of India  

WP(C) 1297/2020
31-3-2021HMJ. N. Kotiswar Singh, HMJ. Soumitra Saikia[6] Be that as it may, perhaps the Tribunal could not have proceeded with the matter if it was found that the present petitioner is the same person, who was proceeded earlier in Case No.FT/H/106/2014, in view of the law laid down by Abdul Kuddus vs. Union of India reported in (2019) 6 SCC 304, as the subsequent proceeding will be hit by principle of res- judicata and as such, any subsequent initiation of proceeding against the same person will be impermissible.   [8] Considering the above, we are also of the view that apprehension of the petitioner can be dispelled if the Tribunal examines whether the present petitioner is the same person who was proceeded earlier, for which the petitioner would produce and adduce necessary evidence in that regard before the Tribunal. However, we make it clear that the said examination by the Tribunal would be only for the purpose of finding out as to whether the present petitioner, Musstt.Afia Khatun @ Musstt. Afia Khatoon, W/o Samsul Hoque aged about 42 years is the same person or not, who was proceeded in earlier case i.e. in Case No.FT/H/106/2014 before the Foreigners Tribunal, Hojai, Sankardev Nagar. If the Foreigners Tribunal on hearing of the parties is satisfied that the present petitioner is the same person, who was proceeded in Case No.FT/H/106/2014 before the Foreigners Tribunal, Hojai, Sankardev Nagar, the Tribunal will not proceed further with the present proceeding in F.T.(D) Case Nol.1276/2015 and close the same on the strength of the earlier opinion dated 26.06.2014 by holding the petitioner not to be a foreigner, but an Indian as the second proceeding will be hit by the principle of res- judicata as held by the Hon’ble Supreme Court in Abdul Kuddus (Supra). However, if it is found that the present petitioner is not same, the Foreigners Tribunal will proceed with the matter in accordance with law.
4Md. Sahar Ali. v. Union of India  

WP(C) 2105/2021
25-3-2021HMJ. N. Kotiswar Singh, HMJ. Manish Choudhury[3] It has been submitted that in view of the decision of the Hon’ble Supreme Court rendered in Abdul Kuddus vs Union of India, (2019) 6 SCC 604 , as the principle of res- judicata is applicable in the proceeding before the Foreigners Tribunal, any subsequent initiation of proceeding against the same person will be impermissible. The petitioner submits that accordingly he filed an application before the aforesaid Tribunal on 23.11.2020 praying for not proceeding with the present proceeding initiated against the petitioner by claiming to be the same person in favour of whom the Foreigners Tribunal No.1, Barpeta had earlier on 16.01.2017 given a favourable opinion. Learned counsel for the petitioner submits that the matter is now pending before the same Tribunal. However, learned counsel for the petitioner apprehends that the matter may be proceeded on merit about his citizenship.   [5] We are of the view that apprehension of the petitioner is not warranted as the Tribunal can examine the petitioner as well as the original documents related to him as to whether the petitioner is the same person who was proceeded earlier. However, we make it clear that the said examination would be only for the purpose of finding out as to whether the present petitioner, Md. Sahar Ali @ Shar Ali S/o Rabi Uddin @ Rab Udin aged about 52 years is the same person or not, who was proceeded in earlier case i.e. in F.T. Case No.226/2016. If the Foreigners Tribunal on hearing of the parties is satisfied that the present petitioner is the same person, who was proceeded in F.T. case no.226/2016, the Tribunal will not proceed further with the present proceeding in F.T. Case No.387/2018 and close the same on the strength of the earlier opinion dated 16.01.2017 by holding the petitioner not to be a foreigner, but an Indian as the second proceeding will be hit by the principle of res-judicata as held by the Hon’ble Supreme Court in Abdul Kuddus (Supra). However, if it is found that the present petitioner is not same, the Foreigners Tribunal will proceed with the matter in accordance with law.
5Md. Mahar Uddin v. Union of India  

WP(C) 3128/2017
23-3-2021HMJ. N. Kotiswar Singh, HMJ. Manish Choudhury[25] The Hon’ble Supreme Court in Abdul Kuddus Vs. Union of India, (2019) 6 SCC 604 has already held that principle of res-judicata is applicable in a proceeding before the Foreigners Tribunal. However, it has been brought to the notice of this Court that, there are instances where proceedings have been reinitiated against the same person, inspite of the person being already declared an Indian. Thus, initiating a subsequent investigation and making another reference and initiating a proceeding again before a Tribunal can be avoided if such data are properly maintained, which will help detect such unnecessary duplication of efforts.   [26] It has been further observed that some of the proceedees though hail originally from one district go to another district for their livelihoods and are proceeded in a different district away from their hometowns. Thus, they face serious disadvantages about gathering evidences and producing witnesses in support of their claim in the remotely located Tribunals. Maintenance of such proper data can help proper investigation, reference and proceeding in the appropriate district to avoid such hardships.   [27] Accordingly, we deemed it appropriate to direct the State Government to examine the feasibility of applying Information and Communication Technology to the proceedings before the Foreigners Tribunals, to maintain and preserve data, to make the functioning of the Foreigners Tribunal more efficient, transparent and systematic. It has been stated at the Bar that a large number of cases of more than 1.4 lakhs of suspected illegal immigrants are pending before the Foreigners Tribunals and many more persons are being investigated for reference. Thus, use of Information and Communication Technology will certainly enhance efficacy, help proper management of the huge number of cases and avoid duplicating and conflicting opinions.
6Bulbuli Bibi v. Union of India  

WP (C) 7810/2019
22-03-2021HMJ. N. Kotiswar Singh, HMJ.  Soumitra Singh[7] Thus it appears that the only difference or inconsistency is about the difference is the name of the husband, viz. Nazim and Najimuddin. We feel that this difference is minor and not substantial and hence can be ignored. Similarly, the name of the father of the proceedee has been recorded as late Giapuddin Fakir in the first proceeding and in the second proceeding, it has been recorded as Giyas Fakir. We are also of the opinion that these are minor variations, and as such the same can be ignored.   [8] From the above, it appears that it was the same person who was sought to be proceeded against. However the finding given in the first proceeding under Case no. K/FT/D/771/11(B/KJR/D, voter/2010/164) vide opinion dated 30.09.2013 that the proceedee is not a foreigner of 1966-1971 stream and her name should not have been recorded in the ‘D’ voters list. The said finding given in earlier opinion dated on 30.09.2013 has not been interfered with and has attained finality. Accordingly, we are of the view that the subsequent finding opinion given by the Foreigners’ Tribunal in K/FT/D/714/10, (No. B/KJR/D.voter/2010/108, dated 23.12.2010) rendered 18.08.2017 is barred by principle of res-judicata, as has been held by the Hon’ble Apex Court in judgment reported in Abdul Kuddus vs Union of India, (2019) Vol. 6 SCC 604, that in the proceedings before the Foreigners’ Tribunal, the principle of res-judicata is applicable.
7Sabiran Khatun v. Union of India  

16-3-2021HMJ. N. Kotiswar Singh, HMJ. Soumitra SaikiaLearned counsel for the petitioner submits that the subsequent proceeding initiated by Foreigners Tribunal No.2, Kamrup (M), Guwahati in FT (D.V.) Case No.457/2018 is hit by principles of res judicata in view of the order passed by the Hon’ble Supreme Court in Abdul Kuddus vs. Union of India, (2019) 6 SCC 604 . Accordingly, since the petitioner was earlier opined to be an Indian Citizen by the Foreigners’ Tribunal No.1, Dhubri, in F.T. Case No.1076/D/11, the present proceeding cannot lie being barred by the principles of res judicata. Accordingly, learned counsel for the petitioner submits that the order passed by the learned Foreigners’ Tribunal No.2, Kamrup(M) is not maintainable. We are also, prima facie, satisfied that in Abdul Kuddus (Supra) case the Hon’ble Supreme Court has clearly held that the Foreigners’ Tribunal is a quasi judicial body and the principles of res judicata will apply.   In view of above, we are prima facie satisfied that the order passed by the learned Foreigners’ Tribunal No.2, Kamrup(M) in FT (D.V.) Case No.457/2018 on 14.10.2019 needs to be stayed for further consideration and accordingly, the proceedings in FT (D.V.) Case No.457/2018 shall remain stayed until further orders.
8Alal Uddin v. Union of India and Ors.  

WP (C) 3172/2020
12-3-2021HMJ. N. Kotiswar Singh, HMJ. Soumitra Saikia[4] We are, however, unable to agree with the said opinion of the learned Foreigners’ Tribunal No.II, Nagaon passed on 30.09.2019. Though, in Abdul Kuddus (Supra), the Hon’ble Supreme Court was considering the matter relating to inclusion of the name in the NRC, yet at the same time the Hon’ble Supreme Court had also considered the provisions of Foreigners’ (Tribunals) Order, 1964 and had discussed about the various legal implications arising out of Sarbananda Sonowal vs. Union of India, reported in (2005) 5 SCC 665 as well as Sarbananda Sonowal vs. Union of India, reported in (2007) 1 SCC 174 and elaborately discussed about the procedure for disposal of such matter by the learned Tribunal under the Foreigners’ (Tribunals) Order, 1964 and in that context it was held by the Hon’ble Supreme Court that the Tribunal functions as a quasi-judicial authority and it would be incorrect to hold that the opinion of the Foreigners Tribunal and/or the consequential order passed by the Registering Authority would not operate as res judicata.   [6] Accordingly, the present petition is allowed by setting aside the impugned order dated 30.09.2019 passed by the learned Foreigners’ Tribunal (2nd) Nagaon in F.T. Case no.1082/2011. As a result, the order passed by the learned Foreigners’ Tribunal (2nd), Nagaon on 19.08.2008 shall stand revived and the petitioner’s status as an Indian citizen in terms of the earlier opinion passed by the learned Foreigner’s Tribunal (2nd), Nagaon, on19.08.2008 will stand.
9Jahir Ali vs. Union of India  

WP (C) No. 3402/2020
3-3-2021HMJ. N. Kotiswar Singh, HMJ. Soumitra Saikia[15] Be that as it may, since we have already held that the principle of res judicata will apply in view of the decision in Abdul Kuddus (supra), the Foreigners’ Tribunal in the present instant proceeding cannot re-examine the legality or otherwise of the opinion rendered earlier by the Foreigners’ Tribunal, except to ascertain as to whether the petitioner was the same person against whom the Foreigners’ Tribunal in F.T. Case No.771/2012 had given its opinion. If it is found on consideration of the materials on record and after hearing the parties that the present petitioner was indeed the same person against whom the Foreigners’ Tribunal had given its opinion in the earlier proceeding in F.T.Case No.771/2012, the present proceeding will be barred by application of principle of res judicata.   [16] Accordingly, for the reasons recorded above, we allow this petition by remanding the matter to the concerned learned Tribunal to consider the case of the petitioner afresh by giving him an opportunity to prove that the present petitioner, namely, Jahir Ali, aged about 52 years, S/O Nesar Ali @ Mesar Ali,R/O Ward No.6, PO & PS-Mangaldai, District-Darrang, Assam, is one and the same person in whose favour an opinion was earlier given by the same Tribunal on 15.07.2015 in F.T. Case.
10Musst. Fulbanu Nessa v. Union of India  

WP(C) 725/2021
15-2-2021HMJ. N. Kotiswar Singh, HMJ. Soumitra SaikiaAccordingly, learned counsel for the petitioner submits that the subsequent review and the opinion rendered by the Foreigners’ Tribunal, Diphu, on 16.03.2020 is ex facie illegal apart from the fact that in the present case the principle of res judicata applies as held by the Hon’ble Supreme Court in Abdul Kuddus vs. Union of India & Ors. reported in (2019) 6 SCC 604.   It has been submitted that the petitioner is in custody since 17.03.2020 on the strength of the aforesaid order dated 16.03.2020 passed by the learned Foreigners’ Tribunal, Diphu.  On perusal of the materials available on records, we are prima facie satisfied that the petitioner has made out a case for her release on bail and suspension of the order dated 16.03.2020 passed by the learned Foreigners’ Tribunal, Diphu.  
11Sabita Das vs The Union Of India  

WP(C) 182/2020  
12-2-2021HMJ. Michael ZothankhumaThe plea was specifically taken before the Foreigners Tribunal-II, Lakhimpur, North Lakhimpur that the petitioner has been already declared as not a foreigner. Ext.-9, which, however was not accepted by the Tribunal. It has been submitted that the Hon’ble Supreme Court in Abdul Kuddus Vs. Union of India, reported in 2019 (6) SCC 604 has held that the principle of res judicata will also apply in the proceedings before the Foreigners Tribunal. The matter needs examination. We are prima facie satisfied that the impugned order needs to be stayed.  
12Rejia Khatun v. Union of India  

WP(C) 2811/2020
31-8-2020HMJ. Manojit Bhuyan, HMJ. Hitesh Kumar SarmaPetitioner has put to challenge the proceedings in FT Case No.2854/2012, pending before the Foreigners’ Tribunal Tezpur (1 st), Assam, primarily on the ground that in an earlier proceeding i.e. in FT Case No.14/2016, she was declared as not a foreigner. Reliance is placed on the principle of res- judicata by making reference to the case in Abdul Kuddus vs. Union of India and Others (Civil Appeal No.5012/2019), reported in (2019) 6 SCC 604.   Issue Notice.   No fresh steps are required to be taken as all respondents are represented. Heard on the interim prayer.   Pending disposal of the writ petition, the proceeding in FT Case No.2854/2012 pending before the Foreigners’ Tribunal Tezpur (1st), Assam shall remain stayed.
13Basanti Sarkar v. Union of India and Ors.  

WP(C) 6768/2019
18-12-2019HMJ. Suman Shyam, HMJ. Parthivjyothi SaikiaThis writ petition is directed against the final order and opinion dated 31/07/2019 passed by the Foreigner’s Tribunal(2), Lakhimpur, North Lakhimpur, in connection with FT Case No. 262/2007.   Mr.Bhowmik submits that besides being perverse, the impugned order is also barred under the principles of res judicata since the petitioner has already been declared as an Indian citizen by the Foreigner’s Tribunal by order dated 21/04/2010.   From the perusal of the materials on record, we find that by order dated 21/04/2010 passed in connection with LFT-II(D) case No. 274/2008, the learned Tribunal had declared that the petitioner is not a foreigner. The said order was passed after taking note of the documents including voters’ list of 1966 produced by the petitioner, which contains the names of the father and mother of the petitioner.   Under the circumstances, we are of the prima facie view that the subsequent opinion of the learned Foreigner’s Tribunal is untenable in the eye of law.
14Sribas Biswas v. Union of India  

WP(C) 495/2019
1-2-2019HMJ. Achintya Malla Bujor Barua, HMJ. Ajit BorthakurThe petitioner raises an issue that two parallel reference proceedings were initiated against the petitioner, where one of them resulted in judgment and order dated 30.05.2014 in FT.K.D.V Case No.8716/2011, wherein he had been declared to be a citizen of India. Upon the said fact being brought to the notice of the Tribunal in the other proceeding being FT.K.1746/2017, the Tribunal by the order dated 11.10.2018 by relying on the pronouncement of this Court in Amina Khatun –vs Union of India and others, reported in 2018 (3) GLT 1took the view that as the principle of res-judicata is not applicable, therefore, the other proceeding is maintainable.   An issue for consideration would arise as to whether a parallel proceeding in contradistinction with that of a subsequent proceeding would be maintainable merely by following the principle laid down in Amina Khatun (supra) that the principle of res-judicata is not applicable in respect of a reference under the Foreigners Tribunal Order, 1964.   In view of the above, in the interim, it is provided that further proceeding in the FTK No.1746/2017 before the Foreigners Tribunal No.4, Kamrup (M) be stayed.
15Maran Das v. Union of India

WP(C) 477/2019
1-2-2019HMJ. Achintya Malla Bujor Barua, HMJ. Ajit BorthakurThe petitioner raises an issue that two parallel reference proceedings were initiated against the petitioner, where one of them resulted in judgment and order dated 25.01.2017 in FT.K.D.V Case No.279/2016, wherein he had been declared to be a citizen of India. Upon the said fact being brought to the notice of the Tribunal in the other proceeding being FT.K.84/2018, the Tribunal by the order dated 11.10.2018 by relying on the pronouncement of this Court in Amina Khatun –vs Union of India and others, reported in 2018 (3) GLT 1 took the view that as the principle of res-judicata is not applicable, therefore, the other proceeding is maintainable.   An issue for consideration would arise as to whether a parallel proceeding in contradistinction with that of a subsequent proceeding would be maintainable merely by following the principle laid down in Amina Khatun (supra) that the principle of res-judicata is not applicable in respect of a reference under the Foreigners Tribunal Order, 1964.   In view of the above, in the interim, it is provided that further proceeding in the FTK No.84/2018 before the Foreigners Tribunal No.4, Kamrup (M) be stayed.

This note was last updated on 11 May 2021.

Citizenship and the Eastern Partition

This is a guest post by Malavika Prasad. She is an advocate and doctoral fellow at the NALSAR University of Law. She has served as an advocate in the Supreme Court of India and other courts. Presently, she is also a senior editor at Law and Other Things.

 “For most people who live alongside it, the border between India and Bangladesh is a chimera.”

– Urvashi Butalia[*]

On the day the Indian republic came into being, one could be an Indian citizen in two key ways. Those with domicile in free India were eligible for citizenship if born in free India, or to Indian parents, or if ordinarily resident in territory that was now Indian in the past five years.[1]  Those without domicile in free India, being ordinarily resident outside British India and the princely states,[2] could be citizens if they had a connection to India by birth.[3]

However, Partition had created a third category of people: those who lacked Indian domicile despite being linked to British India by birth and residence because their permanent homes were now in Pakistan. For them, the Constitution made an exception from the general rule. If they came to India before 19 July 1948, they had to have resided in India since their arrival to establish an intention to be an Indian citizen. If they came to India after 19 July 1948, or had gone to Pakistan and sought to return to India on permits for resettlement or permanent return, registration as a citizen after a minimum of six months’ stay in India was necessary.[4]

These provisions betray no consideration of the unique circumstances of Partition on the East. This piece is a brief exploration of how this came to be. Closely reading these debates reveals that the citizenship crisis of the East is a crisis that was incipient and looming even when the Constitution was framed.

Histories of Eastern Migration

The Boundary Commission drew the border between India and Pakistan over just a few weeks, both in the West and the East.  Helmed by an Englishman, Sir Cyril Radcliffe (whose ignorance of the soon-to-be borderlands was taken to be a guarantee of impartiality), the top-down partition of India was unmindful of the social histories of migration in Eastern India.

After the British annexed Assam in 1826, they acquired land on a large scale by displacing locals to run tea, jute, oil and other enterprises.[5] Tea workers were recruited from Jharkhand, Chhattisgarh and other regions[6] and settled in Assam.[7] These labourers were deliberately isolated from the locals at the behest of the tea industry management.[8] Likewise, the low-lying floodplains of the Brahmaputra were used for cultivation of jute, for which the settlement of East Bengali peasants was encouraged.[9] The peasants moved upstream along the Brahmaputra and eastwards into Assam from eastern Bengal in such large numbers that they outnumbered the locals.[10] As social networks in the region grew, (largely Muslim) migrant labourers started coming on their own[11] and did not face resistance till the last two decades of colonial rule.[12]

With the evolution of transportation technology towards achieving “imperatives of the empire” such as “security, profit, and cheap but safe governance”, movement of labour became easier.[13] Much of the highly localized migration was ecologically determined by the Ganga and Brahmaputra rivers flooding fields or swallowing up islands[14] as they cut new courses to the sea[15] — a phenomenon that continues to determine micro-migration to the present day.[16] The economic depression and the Second World War only heightened the desperation of these labourers as well as the need for labour.[17]Of course, white-collar migration for administrative and clerical jobs serving the Raj also commenced over time, with large numbers of Hindu Bengalis heading to Orissa, Bihar, Bombay, United Provinces, the Punjab, and Assam.[18]

To give you a sense of the numbers, by 1931, scholars note that“…6 million persons had moved within and from the greater Bengal region, a number already twice as large as the entire Indian diaspora worldwide  in 1947 and almost twice the size of the Chinese diaspora in the USA in 2010.[19] By 1931, the Bengali-speaking population in Assam was double the number of Assamese-speaking persons.[20] In Tripura alone, scholars have noted that the indigenous tribes had stopped being a “decisive majority” on the eve of partition due to Bengali migration.[21] Given their huge socioeconomic and cultural consequences,[22] these migrations cannot be overlooked merely because international borders were not crossed.[23] Moreover, this internal migration with a five decade history was suddenly transformed into an international one when the eastern border was drawn.[24]

Impact of the Eastern Partition  

Dominant narratives of the eastern partition focus only on linguistic and religious identities of migrants and refugees. However, even wherethe border did indeed separateBengali majority areas from others(such as in Tripura and Assam)“…it was often a case of Bengalis (both Muslims and Hindus) on one side and non-Bengali Christians or Buddhists on the other…[25]

Further examination also reveals the caste, class, and gendered impacts of the eastern Partition. For instance, in West Bengal, the first to arrive were upper caste and upper and middle class Hindus of East Bengal. Dalit refugees came only after the riots of 1949 and 1950.[26]

The landed and middle class were motivated by the fear of violence, the loss of social status, and the feeling that they may be better off in a land of ‘their own people’. On the other hand, the peasant class only moved when faced with “extreme violence or …intolerable hardship”, such as in the communal violence in 1949 and 1950.[27] While peasants were three quarters of the Hindu population of East Bengal, they were only forty percent of the Hindu refugees in West Bengal.[28] 

Among upper caste refugees, women occupied a position of “power and powerlessness in a national context.”[29] In public imagery, they were depicted in the public sphere,[30] which led to a narrative of agency. However, many such women were actually thrust into land grabbing for squatting, and later, into (sometimes violent) political agitations against eviction.[31]

In literature, the squalor in the Sealdah station – as refugees awaited allocation to a government refugee camp – forms the turning point for upper caste women getting into politics. However, Sealdah is barely a footnote in the ‘legacies of vulnerability’ inherited by the Dalit women refugee.[32] While upper caste women could rebuild their lives and look back upon the trauma of refugeehood, Dalit women refugees were consigned to a refugeehood that continues to the present day.[33] While upper caste women entering the labour market was seen as a “feminist triumph”,[34] Dalit women – having always been involved in wage labour – continued to do so post Partition, only without the family as a support system in their second full shift of domestic labour.[35]

Rehabilitation schemes entailing land and loans was implicitly designed for the able-bodied male refugee. For “unattached” women, rehabilitation came only in the form of training for (gendered and often low-paying) vocations, with the aim of keeping them occupied.[36] By 1957, when a comprehensive rehabilitation policy was introduced, women stood marginalized – along with families that lacked able-bodied men.[37] They were seen as economically non-productive, perennially dependent, and unworthy of rehabilitation but in need of relief.[38] Thus, the right to a social identity was taken away from women refugees who were not “attached” to a heteropatriarchal family of some type.

Outside of Bengal, the binaries of religion (which were particularly nationalistic) and language (which privileged the border between East and West Bengal where “non-Muslim” did indeed overwhelmingly mean “Hindus”) gave way to a deeper complexity along ethnic lines.[39] For instance, the border sliced through Garo[40] and Rakhaing communities and their trade and solidarity networks. Yet, the terms on which Partition was executed, flattened the vocabulary for these gender, ethnic, caste, and class contexts into the simplistic and reductive categories of linguistic and religious identity. This oversimplification of the communities of the Eastern border continues in popular discourse to the present day.

The Resulting Citizenship Question

When citizenship was debated in the Constituent Assembly, the eastern border and its communities as well as the many histories of migration prior to Partition, barely came up. In fact, the migration in the West almost exclusively fed the concept of citizenship that was encoded into the Constitution.[41] The reason the Assembly was so preoccupied with the refugee crisis on the Western border was that it was seen as intractable, unlike that on the East.

The consensus between the two dominions at the time had been to refrain from exchanging their minority populations, except in Punjab.[42] They had arranged instead to maintain reciprocity[43] — in that each nation would treat its religious minority in the same way as the other would treat its minority, while the borders would remain porous.[44] However, the commitment to reciprocity started breaking down as the Indian government decided to aid the evacuation of Sikhs and Hindus from Sind in the wake of the January 1948 Karachi riots.[45] Soon after, the border came to be regulated through the permit system, to tackle what was perceived to be a “one way traffic” to India – of Muslims.[46]The heavy handed enforcement of the permit system[47] was seen as necessary because of the economic consideration of how to rehabilitate returning Muslims who had once fled India; their homes had already been allotted, under evacuee property laws, to Hindu and Sikh refugees who came in from Pakistan.[48]

In comparison, no permit policy was introduced to regulate the Eastern migration. Since there were significant economic interests at stake for West Bengal in permitting continued migration,[49] it was hoped that the reciprocity arrangements would persuade “migrants to stay in place.”[50] When refugees continued to pour in nevertheless, the political leadership viewed the influx as fundamentally reversible.[51] Thus, the Eastern migration fell by the wayside of the Constituent Assembly’s attention.[52]

The limited context in which the Eastern migration was considered in the Assembly was at the behest of R K Chaudhury, for two classes of people. First were the migrants from East Bengal who had come to West Bengal or Assam “out of fear of disturbance in the future or from a sense of insecurity”.[53] The second were those who belonged to Sylhet[54] when it was a part of Assam, and thus continued to reside in Assam even after Sylhet was partitioned and restored to East Bengal. The partition of Sylhet caused mass migrations of Sylhet’s Bengali Hindus[55] – who probably feared violence or unsettled livelihoods – to the Barak valley[56] and the princely state of Tripura.[57] Those who remained in Assam, Chaudhary pointed out, could not now be expected to return to East Bengal, even if their reasons for being in Assam to begin with were business or government employment.[58]

Sylheti workers, no doubt, were being cut off from Assam’s tea gardens as well as Calcutta’s merchant marine as they were viewed as “Pakistani” after Partition.[59] However, Chaudhury’s centering of Sylhet reveals a concern for only a particular demographic, of the many whose lives were upended by Partition. To put it plainly, he had no interest in enfranchising recent Muslim migrants to Assam.[60] In his view, at least some Muslims were being settled there by the Muslim League to shore up the state’s Muslim population (perhaps with the aim of having the entirety of Assam be assigned to East Bengal in partition[61]). Despite his advocacy, the framers of the Constitution were committed to the secular and universally framed citizenship provisions[62] even if they opened the door for a free-for-all migration to Assam.

The Looming Citizenship Crisis

The Constitution’s citizenship provisions came into effect on 26 November 1949. The eastern border came to be regulated by the passport system only in 1952.[63]

Migration, which was otherwise unremarkable in the Bengal delta, had become galvanised by Partition into a continuous process; displacement was now “an inescapable part of [their] reality”.[64]  In West Bengal alone, about 20-30 lakh refugees from East Bengal had settled there per the 1951 and 1961 census.[65] By July 1958, the state government decided it would house no more refugees in the state,[66] and forcibly movedthem – an overwhelming number of whom were Dalit – to camps in (non arable, non irrigated) lands outside the state.[67] Tripura saw about 5 lakh partition-refugees from East Bengal between 1947-1958; after suffering significant impacts on its local cultivation, land use and demographic patterns, the registration of refugees was stopped.[68] In Assam, members in the Lok Sabha contended that “that as many as 4 ½ lakhs of Muslims … [had] crossed the border … after the attainment of Independence.”[69] To allay old concerns about the exploitation of Assam, Parliament passed the Immigrants (Expulsion from Assam) Act  in 1950.[70]

When Parliament was considering the Citizenship Bill in 1955, the long-drawn migration induced by partition was yet to unfold. Once again, there were proposals to treat Hindu and Muslim refugees differentially in the citizenship law;[71] once again, the framers of the Act declined to do so. All refugees from Partition were eligible to be Indian citizens through a single secular, and neutrally applicable provision. They would have to register themselves as citizens under Section 5 of the Act. Tellingly, the law permitted citizenship by descent only through the male line – in keeping with the State’s apathy towards unattached women.

By the 1970s, the numbers of refugees in West Bengal had doubled to about 60 lakhs.[72] The mass movement of refugees into India[73] triggered by the Bangladesh liberation war in 1971 only aggravated the migration crisis.[74] Tripura’s tribals turned into a minority.[75] In Assam, a new crisis was brewing.

It was claimed that the influx of refugees had resulted in about 31 to 34% of the State’s population (about 50 lakh persons per the 1971 Census) being “foreigners”, and that a substantial number of them were even on the electoral rolls.[76] Championing this claim was the All Assam Students Union. Their agitation culminated in 1985 in the signing of the Assam Accord[77] – a political rapprochement between the central government and the Union stipulating that “a) all those who had migrated before 1966 would be treated as citizens; (b) those who had migrated between 1966 and 1971 could stay provided they put themselves through an official process of registration as foreigners; and (c) all those who migrated thereafter were simply illegal immigrants.”[78] Thus was born the 1985 amendment to the Citizenship Act by which the Indian citizen was defined in opposition to a “foreigner”.[79]

The Incipient and Looming Citizenship Crisis

A “foreigner” under the Foreigners Act, 1946 is “a person who is not a citizen of India”.[80] For this definition to be meaningful, the citizen needs to have a fixed meaning – with citizenship being tethered to the fact of birth or domicile. Only then can its photo-negative be the foreigner.

However, the top-down imposition of the Eastern border onto the many histories of migration in the region, at once transformed those who were once Indian into “foreigners”. Moreover, the many caste, gender, class, and ethnic impacts of Partition were papered over by the dominant political narratives on religious and linguistic lines. Ultimately, it was those who were rendered foreigners – by the creation of the Indian state and its dominant political narratives – that were sought to be kept out by the 1985 amendment.

This raises a question that ought to cause alarm. With the 1985 amendment, the existence of the foreigner constitutes and informs the definition of the citizen.[81] It appears then that the citizen in India, far from being a fixed and pre-defined entity, can be reified only in relation to the foreigner. If the citizen can be only understood informed by the foreigner, and the foreigner is inherently politically contingent, who really is an Indian citizen?


[*] Urvashi Butalia, The Nowhere People, Seminar 2003.

[1] Article 5 of the Constitution.

[2] Articles 6 and 7, as well as Article 8, use as their reference point, “India as defined in the Government of India Act, 1935 (as originally enacted)…”, which includes both British India as well as the princely states. See Section 311(1) of the Government of India Act, 1935: ““India” means British India together with all territories of any Indian Ruler under the suzerainty of His Majesty, all territories under the suzerainty of such an Indian Ruler, the tribal areas, and any other territories which His Majesty in Council may, from time to time, after ascertaining the views of the Federal Government and the Federal Legislature, declare to be part of India.”

[3] That is, they had to be born in British India or the princely states (or to parents or grandparents who were born there) and register themselves in the Indian consulate, signaling their intention to be Indian. See Article 8 of the Constitution..

[4] Articles 6 and 7 of the Constitution of India.

[5] Walter Fernandes, IMDT Act and Immigration in North-Eastern India, The Economic and Political Weekly, Vol. 40(30) 3237-3240, 3239. Fernandes notes that tribal lands inherently were “community owned according to tribal customary law” while mainstream Indian laws recognized land as a private property right. Thus, the “disjunction between the systems” made the land susceptible to easy encroachment by immigrants whose only transferable skill was cultivation. Immigration, in Fernandes’ thesis, must be understood for the deeply economic issue it is, rather than being flattened into an ethnic or linguistic issue. Of the colonial project of dispossessing the indigenous communities of their land, Sanjib Baruah writes“…There were frequent attacks on the plantations by “tribesmen” protesting their dispossession during the early years of tea in Assam. Colonial writings portrayed them as marauding barbarians. The Inner Line… was an attempt to fence off the plantations and cordon off areas of clear, cemented colonial rule.” Sanjib Baruah, In the Name of the Nation: India and its Northeast (Stanford University Press, 2020), 31;

[6] The tea industry was “built on indentured labour from Jharkhand, Chhattisgarh and other regions where the Permanent Settlement 1793 and the zamindari system had displaced people on a large scale”, writes Fernandes. Walter Fernandes, 3239.

[7] Sanjib Baruah(2020), 50 (footnotes omitted).

[8] Walter Fernandes, 3239.

[9] Sanjib Baruah (2020), 50.

[10] Claire Alexander, Joya Chatterji, Annu Jalais, The Bengal Diaspora Rethinking Muslim Migration, 39-40 (Routledge 2015). See also Mohammed Mahbubar Rahman and Willem van Schendel, I am Not a Refugee, Rethinking Partition Migration, Modern Asian Studies 37(3), 551-584, 582 fn71.

[11] Amalendu Guha records that in the first half of the 20th century, 85% of the landless immigrants from East Bengal to Assam alone were Muslim, despite the “line system” implemented to regulate the in-bound migrant communities, which changed the face of Assamese politics significantly. See generally Amalendu Guha, East Bengal Immigrants and Maulana Abdul Hamid Khan Bhasani in Assam Politics, 1928-47, The Indian Economic & Social History Review13(4), 419–452. These Muslims of the Brahmaputra valley went on to adopt Assamese as their first language. Sanjib Baruah (2020) 53-54.

[12] Sanjib Baruah (2020) 50-51.

[13] Alexander, Chatterji and Jalais 26.

[14] See Alexander, Chatterji and Jalais, The Bengal Diaspora, 64-66, on mobile agriculturists from Malda and Chapai who routinely ‘lost their land to the river’, lived in bamboo huts that can be assembled and disassembled with ease, and capitalized on their years of acquired “mobility capital” to migrate after partition being “remarkably free of any ideological baggage committing them particularly to a nation, whether Pakistan, India, or Bangladesh.”

[15] Ibid.

[16] Rohini Mohan, Lakhs Of The Most Marginalised Women In Assam’s River Islands Risk Becoming Stateless, Huffington Post, 7 August 2018

[17] Alexander, Chatterji and Jalais, 39-40.

[18] Alexander, Chatterji and Jalais, 32; Sanjib Baruah (2020), 51; Thongkholal Haokip, Inter Ethnic Relations in Meghalaya, Asian Ethnicity 15(3) (2014): 302-316, 305.

[19] Alexander, Chatterji and Jalais, 28 (footnotes omitted).

[20] Navine Murshid, Assam and the Foreigner Within, Asian Survey 56(3) 581-604, 599.

[21] Subir Bhaumik, Disaster in Tripura, Seminar 2002,, citing H.L. Chatterji, ‘Glimpses of Tripura’s History’, Tripura Review, 15 August 1972.

[22] See Madhumita Sengupta, Historiography of the Formation of Assamese Identity A Review, Peace and Democracy in South Asia, Volume 2, 121-34 for a review of the literature on the consequences in Assam; Udayon Misra, Immigration and Identity Transformation in Assam, Economic and Political Weekly, Vol. 34(21) (May 22-28, 1999), pp. 1264-1271.

[23] See generally, chapter 1 “Prehistories of mobility and immobility: The Bengal delta and the ‘eastern zone’ 1857-1947” in Alexander, Chatterji and Jalais.

[24] Willem van Schendel, The Bengal Borderland 192 (Anthem Press 2004) 210-211.

[25] Willem van Schendel, 47.

[26] “…Yet this was also when the refugee crisis assumed such “desperate proportions that Government officials were at a loss to find accommodation for their rehabilitation.” Dwaipayan Sen, The Decline of the Caste Question 219 (Cambridge University Press 2018); See also Sarbani Bannerjee, Different Identity Formations in Bengal Partition Narratives by Dalit Refugees, Interventions (2017), 2.

[27] See Joya Chatterji, The Spoils of Partition: Bengal and India 1947-67, 111-118 (CUP 2007). See also Uditi Sen, Spinster Prostitute or Pioneer? Images of Refugee Women in Post- Partition Calcutta 3-6(European University Institute Working Papers 2011/34).

[28] Chatterji (2007) 118.

[29] Paulomi Chakraborty, The Refugee Woman Partition of Bengal, Gender and the Political 19 (OUP 2018).

[30] Uditi Sen, 7.

[31] Uditi Sen, 10-12.

[32] Ekata Bakshi, Marginal Women A Study of Partition-induced (1947) Forced Migration through the Lens of Caste and Labour in Vijaya Rao et al. (eds.), Displacement and Citizenship: Histories and Memories of Exclusion 138 (Tulika Books 2020).

[33] Ibid, 141.

[34] Uditi Sen, Citizen Refugees Forging the Indian Nation After Partition 238-39 (CUP 2018).

[35] Ekata Bakshi, 143 – 145.

[36] See Uditi Sen, 2018, Chapter 5.

[37] Uditi Sen, 8.

[38] Uditi Sen, 2018, 210 -218.

[39] Willem van Schendel, 47-48.

[40] S K Chaube points to the Garo areas of Mymensingh and Rangpur which went to East Bengal (and border present day Meghalaya), the Khasi regions of Sylhet, and the Kuki-chin areas of the Chittagong Hill tract. See S K Chaube, Hill Politics in North-east India 85-86 (Orient Blackswan 1999).Haokip, ibid.

[41] See Abhinav Chandrachud, Secularism and the Citizenship Amendment Act, Indian Law Review, 4(2) (2020) 138-162.

[42] Vazira Fazila-Yacoobali Zamindar, The Long Partition and the Making of Modern South Asia, 39-41(Columbia University Press, 2007).

[43] The Inter Dominion Agreement, 1948 stating that both India and Pakistan “are determined to take every possible step to discourage such exodus and to create such conditions as would check mass exodus in either direction, and would encourage and facilitate as far as possible the return of evacuees to their ancestral homes.” See Pallavi Raghavan, Animosity at Bay, 60 (Harper Collins 2020). Likewise, in 1950, the Nehru-Liaqat Pact was enacted. Pallavi Raghavan finds that “this was a remarkable agreement, making the governments, for the first time, formally accountable to one another for the welfare of their minorities.” Pallavi Raghavan, The Making of South Asia’s Minorities, EPW LI(21) May 2016, 45.

[44] Zamindar 71-72; See Sardar Vallabhbhai Patel, Statement on Partition Issues Between India and Pakistan, 12 December 1947, The Constituent Assembly of India (Legislative) Debates, Official Report, Vol III, 1810,

[45] Zamindar, 53.

[46] Zamindar, 94. Through this system, those who sought to permanently relocate to India needed a permit for permanent return or a permit for resettlement. See Section 3, Influx from West Pakistan (Control) Ordinance, 1948, (Ordinance XVII of 1948), This was later superseded by the Ordinance XXXIV of 1948, with effect from 10th November 1948, which went on to be superseded by the Influx from Pakistan (Control) Act, 1949, Act no. XXIII of 1949, with effect from April 22, 1949. The Influx Ordinances did not state that there would be different kinds of permits depending on the duration of stay or the intention of the migrant – a detail that was announced through the Rules. See Rules Regarding Permit System Introduced Between West Pakistan and India, dated 7th September 1948 issued under the Influx from West Pakistan (Control) Ordinance, 1948, (last accessed on 28 April 2020).

[47] The Indian High Commission in Karachi was instructed not to issue permits to those Muslims who had initially intended to permanently migrate to Pakistan, and now sought to return. Joya Chatterji, South Asian Histories of Citizenship 1946-1970, The Historical Journal (2012) 55(4), 1049-1071, 1063.

[48] See for instance Speech of Gopalaswami Ayyangar, Constituent Assembly Debates 12 August 1949, Vol. 9.117.116-123. Hindu and Sikh refugees crossing the western border were sought to be rehabilitated, temporarily, in the homes of Muslim who fled in the wake of the September 1947 Delhi riots.What actually happened was that incoming refugees who had forcibly occupied the homes of fleeing Muslims, were allowed to keep them, thus leaving the owners of the homes unable to return to them after the riots ended. Zamindar, 28-9. Several of those who fled the riots moved to the refugee camp in Purana Qila and even boarded trains to Pakistan. Zamindar, 26-31, Zamindar writes of the camp at Purana Qila, which was taken over by the Indian Government in September 1947: “The camp at Purana Qila emerged as some 12,000 government employees who had “opted” to work for Pakistan and their families (who had initially congregated at the Transfer Office of the Pakistan government) were moved there by the Pakistani High Commission, until travel arrangements could be made for their departure to Pakistan. As word spread, other Muslims seeking refuge, with or without intentions to go to Pakistan, also came to Purana Qila, and within days over 50,000 Muslims of Delhi had taken refuge there… However, from the start it was suggested that “those in Purana Qila be separated into two lots,” those wanting to go to Pakistan and “those who wished to stay.” … the “general feeling” in the Emergency Committee was that there was “reason to believe that 90 percent wish to go out” or “would want to go to Pakistan.” Given that in fact most of the Muslims in Purana Qila did leave for Pakistan, it would seem that the estimates of the Emergency Committee were accurate. However, one report to the Emergency Committee noted that “[e]xact figures for the latter two categories [go to Pakistan or back to city] are extremely difficult—as large numbers have not as yet finally made up their minds.” See p. 34-37.

[49] Speech of Gopalaswami Ayyangar, Constituent Assembly Debates 12th August 1949, Volume 9.117.114. He went on to express a fear that any permit system may be administered in a discriminatory manner by overzealous officials: “It is said, for instance, that Assam wanted a permit system to be applied as between East Bengal and Assam. The Assam Government and the Government of India have discussed the matter between themselves. They have held more than one conference for the purpose of arriving at a solution of this trouble. And I shall not be revealing a secret if I say that at the last conference we had on this, subject, the general consensus of opinion amongst both representatives of the Government of India and the representatives of Assam was that it was not wise to introduce anything like a permit system between East Bengal and Assam on the same lines a obtain between West Pakistan and India. There are complications which perhaps it is unnecessary for me to go into in detail. One very big complication is the repercussion it will have as regards the movement of persons between East and West Bengal. Now, by permitting the extension of the, Permit system as it works between West Pakistan and India to the area between East Bengal and Assam, we shall be inviting Pakistan to introduce such a system as between East and West Bengal and I only mention this to people who are acquainted with both West Bengal and Assam for them to realize all the enormous complications, on the economy of West Bengal which it will entail. The last conference merely came to the conclusion that we should seek and apply other methods for preventing or mitigating the influx of a large number of Muslims from East Bengal to Assam …”  Raghavan writes “…[d] elegates at the Calcutta conference acknowledged that the economic viability of the region as a whole rested partly on the traditional networks of commerce and migration”. Pallavi Raghavan, The Making of South Asia’s Minorities, EPW, 45.

[50] In October 1948, some leaders met to discuss the possibility of a complete exchange of minority populations, to prevent such mass migrations from East Bengal. With alternatives like redrawing the Radcliffe line being out of question, reciprocal arrangements of accountability were the only way out.  Thus came into being the Inter Dominion Agreement, 1948 and the Nehru-Liaqat Pact, 1950. Pallavi Raghavan, EPW, 47-49.

[51] Chatterji notes the views of Prime Minister Nehru on influx of refugees on the east as,“…the product of largely imaginary fears and baseless rumours, not the consequence of palpable threats to Hindu life, limb and property.” In her words, “Long after the exodus from the east had begun, Nehru continued to delude himself that it could be halted, even reversed, provided government in Dacca could somehow be persuaded to deploy ‘psychological measures’ and restore confidence among the Hindu minorities who were leaving in droves.” Joya Chatterji (2007) 129. See also, Niraja Gopal Jayal, Citizenship and its Discontents 63 (Harvard University Press 2013).

[52] Niraja Gopal Jayal 62-68.

[53] RK Chaudhury, Constituent Assembly Debates 12 August 1949, Vol 9.117.97.

[54] Sylhet in the Surma valley was a largely Muslim, Bengali district that was contiguous to East Bengal. After being incorporated into Assam in 1874 for “colonial administrative reasons”, Sylheti Hindus desired to be reunited with the more advanced Bengal while Sylheti Muslims preferred to remain in Assam where they had “a more powerful political voice than they would have had if they returned to a Muslim majority East Bengal.” Assamese locals, who were fearful of the possible hegemony Sylhetis would wield over their own people “with their earlier access to English education”, also supported its restoration to Bengal. Sanjib Baruah (2015), ibid; Madhumita Sengupta, Historiography of the Formation of Assamese Identity A Review, Peace and Democracy in South Asia, Volume 2, 122; Anindita Dasgupta, Remembering Sylhet: A Forgotten Story of India’s 1947 Partition, Economic and Political Weekly 43(31) 2008, 18-22, 19.

[55] Dasgupta, ibid. Sanjib Baruah is of the view Sylhet’s partition’s effects are seen to the present day, in the way politicians engage with the public in the Brahmaputra and Barak valleys. Baruah opines: “In election campaigns in the Brahmaputra Valley in Assam, ruling party politicians including Prime Minister Narendra Modi speak incessantly about expelling “Bangladeshis”. Then they opportunistically change their rhetoric in the Barak Valley where a fundamentally different set of memories of the Partition prevails because a large number of people displaced by the Partition live there.” Baruah explains that the rhetoric of expelling Bangladeshis/Bengalis would not be reassuring to those in the Barak Valley, who “have long been supporters of the BJP precisely because it has historically sided with Partition refugees” (by offering to put them on citizenship track) who were largely Hindu in that region. See Sanjib Baruah, Citizens, non-citizens, minorities, The Indian Express, 28 June 2018; Baruah, 2020, 69-70.

[56] The Barak valley is an extension of the Surma Valley of present day Bangladesh comprising Sylhet district’s Karimganj, Cachar, and Hailakandi. In Assam, Partition was experienced differently in the largely Bengali speaking Barak valley in southern Assam and the largely Assamese speaking Brahmaputra valley, further north. Sanjib Baruah, Partition and Politics of Citizenship in Assam, in Urvashi Butalia (ed.), Partition The Long Shadow (Zubaan 2015).

[57] Baruah (2015).

[58] Speech of RK Chaudhury, Constituent Assembly Debates 12 August 1949, Vol 9.117.95-103.

[59] Claire Alexander, 73.

[60] They had “… not long ago set up the struggle for Pakistan, they had not long before taken an active part in compelling the politicians of India to agree for partition”, and were only here to“exploit”Assam, he declared. Speech of R K Chaudhury, Constituent Assembly Debates 12 August 1949, 9.117.98-104. On the scapegoating of Bengali Muslims, see van Schendel, 211-212.

[61] See Udayon Misra, Burden of History Assam and the Partition- Unresolved Issues 63-85 (OUP Kindle Edition 2017).

[62] For instance, Ambedkar, without explicitly addressing the concerns of traditionally migrant labour communities, affirmed the secular ideal of Article 6 with the following speech: “…the criticism has mainly come from the representatives of Assam particularly as voiced by my friend Mr. Rohini Kumar Chaudhuri. If I understood him correctly his contention was that these articles relating to immigrants from Pakistan to India have left the gates open both for Bengalis as well as Muslims coming form East Bengal into Assam and either disturbing their economy or disturbing the balance of communal proportions in that province. I think, Sir he has entirely misunderstood the purport of the articles which deal with immigrants from Pakistan to India. If he will read the provisions again, he will find that it is only with regard to those who have entered Assam before 19th July 1948, that they have been declared, automatically so to say, citizens of Assam if they have resided within the territory of India. But with regard to those who, have entered Assam, whether they are Hindu Bengalees or whether they are Muslims, after the 19th July 1948, he will find that citizenship is not an automatic business at all. There are three conditions laid down for persons who have entered Assam after the 19th July 1948. …there is a very severe condition, namely that he must be registered by, an officer appointed by the Government of the Dominion of India. I would like to state very categorically that this registration power is a plenary power. The mere fact that a man has made an application, the mere fact that he has resided for six months in Assam, would not involve any responsibility or duty or obligation on registering officer to register him. Notwithstanding  that there is an application, notwithstanding that he has resided for six months, the officer will still have enough discretion left in him to decide whether he should be registered or he should not be registered. In other words, the officer would be entitled to examine, on such material as he may have before him, the purport for which he has come, such as whether he has come with a bona fide motive of becoming a permanent citizen of India or whether he has come with any other purpose. Now, it seems to me that having regard to these three limiting conditions which are made applicable to persons who enter Assam after 19th July 1948, any fear such as the one which has been expressed by my Friend Mr. Rohini Kumar Chaudhuri that the flood-gates will be opened to swamp the Assamese people either by Bengalees or by Muslims, seems to me to be utterly unfounded. If he has any objection to those who have entered Bengal before 19th July 1948- in this case on a showing that the man has resided in India, citizenship becomes automatic-no doubt that matter will be dealt with by Parliament under any law that may be made under article 6. If my friends from Assam will be able to convince Parliament that those who have entered Assam before 19th July 1948 should, for any reason that they may have in mind or they may like to put before Parliament, be disqualified, I have no doubt that Parliament will take that matter into consideration. Therefore, so far as the criticism of these articles relating to immigrants from Pakistan to Assam is concerned, I submit it is entirely unfounded.”. See Speech of Ambedkar, 12 August 1949, 9,117.138-9.

[63] Haimanti Roy, Partitioned Lives: Migrants, Refugees, Citizens in India and Pakistan, 1947-65 History Faculty Publications (2012) Paper 21; Haimanti Roy, Paper Rights: The Emergence of Documentary Identities in Post-Colonial India, 1950-67, South Asia: Journal of South Asian Studies, 39(2), 329-349.

[64] Jasodhara Bagchi and Subhoranjan Dasgupta, The Problem, Seminar 2002.

[65] Joya Chatterji (2007) 119.

[66] This has prompted scholars to note that refugees largely were left to their own devices to settle and rehabilitate themselves, by grabbing and squatting on available, unoccupied lands, educating themselves and earning livelihoods. Joya Chatterji (2007)141-148. By 1973, 15% of West Bengal was comprised of refugees.

[67] They were settled in the Andaman and Nicobar islands, and the Dandakaranya region, comprising 80,000 square miles spanning the “Bastar district of Madhya Pradesh, the Koraput and Kalahandi districts of Orissa, and the Agency Tracts of Andhra Pradesh.” Sen, 211-9. See also Sarbani Bannerjee, 3, citing Basu Guha-Choudhury, 2009, 66-67.This posed the additional cost of impacting the settled lives of the local adivasi communities. Joya Chatterji (2007) 135-140.

[68] Nilanjan De, Partition of India and its Immediate Effect on Jhum Cultivation of Tripura, International Journal of Social Science & Interdisciplinary Research 1(8), August 2012, 185-190.

[69] Speech of Buragohian, Lok Sabha Debates 8 Feb 1950, 321.

[70] The Act permitted the ejection of classes of persons who had come into Assam although “ordinarily resident… outside India”, so long as they were not fleeing civil disturbances. See Section 2, Immigrants (Expulsion from Assam) Act, 1950..

[71] Pandit Thakur Das Bhargava, Lok Sabha Debates 8 August 1955, 9614-16: ““I know there are people who are evil-minded and who want to see trouble created in India, who would go to Kashmir and do all sorts of things, who would go to Assam and do all sorts of things. I am therefore clear in my mind that so far as citizenship is concerned, so far as Pakistan nationals are concerned, citizenship should be circumscribed with conditions and restrictions, so that the security of our State is not adversely affected. I am perfectly clear in my mind that this can be done very easily. In the exodus, lakhs and lakhs of people, are coming. They are coming at the rate of 30,000 a month. They are Hindus as well as Muslims. Now, the question arises: in our secular State, can we distinguish between Hindus and Muslims, can we make different laws? I would submit there is no such impractical difficulty. …After all, Government have discretion in the matter; Government can deprive a person of his citizenship if he becomes a citizen. Government are rehabilitating certain people, giving them some help. Some people are coming to this country and they treat this country as their home, but others come for other purposes. As between the two, Government can very easily make a distinction, and they can have a law by which only those who come to this country for the purpose of real asylum and who are our brethren in every meaning of the word, should be allowed to become citizens and not others.” He went on to suggest, after the Bill was scrutinized by the Joint Parliamentary Committee: “We could say that those persons who have come from East Bengal before the 1st January, 1955 should ipso facto be regarded to have become the citizens of India without any registration, etc. … These persons of Indian origin have lost their citizenship of undivided India because you agreed to the partition of India. Those Hindus living in East Bengal are the potential citizens of this country. I know that our Government is unable to stem the tide of those who are coming from there into India… Registration is only for those who are not the real citizens of India, nor are rooted in the land of India, nor have a domicile in this country, not wanting to return to any other country.” Pandit Thakur Das Bhargava, Lok Sabha Debates, 3 December 1955, 1175-1177.

[72] Joya Chatterji (2007)120.

[73] Zaglul Haider, A Revisit to the Indian Role in the Bangladesh Liberation War, Journal of Asian and African Studies 2009, 44(5), 537, 541-542’ Antara Datta, Refugees and Borders in South Asia:The Great Exodus of 1971 (Routledge 2012).

[74] Subir Bhaumik, supra. The percentage of tribals was 63% in 1874, but only 28.44% in 1981.

[75] Zaglul Haider, 542. “According to an authoritative source, by the end of May 1971, nine million refugees had arrived in small hilly state of Tripura while the indigenous population of that state was only 1.5 million.”

[76] Sanjib Baruah (2015) 88.

[77] Memorandum of Settlement dt. 15 August 1985, signed between the AASU and All Assam Gana Sangram Parishad, the Government of India and Government of Assam,

[78] Niraja Gopal Jayal, 64.

[79] Statement of Objects and Reasons Amending Act 65 of 1985: The amendment’s objects read: “ 1. The core of the Memorandum of Settlement (Assam Accord) relates to the foreigners’ issue, since the agitation launched by the A.A.S.U arise out of their apprehensions regarding the continuing influx of foreign nationals into Assam and the fear about adverse effects upon the political, social, cultural and economic life of the State. 2. Assam Accord being a political settlement, legislation is required to give effect to the relevant clauses of the Assam Accord relating to the foreigners’ issue. 3. …”

[80] Section 2(a), Foreigners Act, 1946.

[81] Anupama Roy, Mapping Citizenship in India, 11-12 (OUP 2010). Ashna Ashesh and Arun K Thiruvengadam, Report on Citizenship Law: India 16 (European University Institute 2017).

Announcing the Release of Securing Citizenship

Following the excerpts of the reports published on the blog over the course of November, the Centre for Public Interest Law, JGLS, has published Securing Citizenship, which can be found here. The report identifies the critical legal issues surrounding precarious citizens and stateless persons in India. It recommends strengthening the existing legal framework in three interrelated chapters: Status, Detention, and Socio-Economic Rights. The report’s recommendations draw on international law, Indian law, and best practices across jurisdictions, situating their implementation in India’s complex and unique landscape.

This report is the outcome of a research partnership between the Centre for Public Interest Law (CPIL) at Jindal Global Law School, Sonipat (JGLS) and the Faculty of Law, Université Catholique de Lille. The authors convey their gratitude to the advisors – Amal de Chickera, Ioannis Panoussis, Niraja Gopal Jayal and Ravi Hemadri – for their important insights on the initial drafts of the report and guidance in navigating the law concerning statelessness. The authors are equally thankful to the commentators – Andrea Marilyn Pragashini Immanuel, Angshuman Choudhury, Ashna Ashesh, Carly A. Krakow, Darshana Mitra, Jessica Field, Sagnik Das, Suraj Girijashanker and Thibault Weigelt – for reviewing the report and sharing their detailed analyses.

The authors owe their thanks to Mohsin Alam Bhat, as Research Director, for lending his support and legal expertise to conduct this study. As research supervisor, Aashish Yadav coordinated and supervised the drafting of the report, guided the team at every stage, and structured their findings. The authors are very grateful for his passionate engagement and contribution to this report.

The team is grateful to Prof. E. Tendayi Achiume, Dr. Bronwen Manby, Prof. Michelle Foster, Amal de Chickera and Prof. Joshua Castellino for their respective endorsements of this report. The report carries a generous foreword by Prof. B.S. Chimni.

The team holds enormous appreciation for AbhilashRadhaKrishnan for designing the report and making it an enjoyable read. They are extremely grateful to Raki Nikahetiya for graciously allowing the use of his photograph as the cover image of this report.

The student authors of this report are:

Anushri Uttarwar, Arunima Nair, Khush Aalam Singh, Veda Singh, Vrinda Aggarwal, and Yamini Mookherjee from Jindal Global Law School.

Amandine Desmont, Claire Jacquot, Flora Turrado, Hélène Jolly, and Theo Antunes from Université Catholique de Lille.

We welcome responses to the report from our readers as submissions to the blog. The report authors encourage readers to write to them with thoughts and comments.

To foster engagement with the report, we invite you to attend the Securing Citizenship Webinar, organised in collaboration with Centre for Public Interest Law, JGLS. Our panelists include Amal de Chickera (Co-Founder & Co-Director, Institute on Statelessness & Inclusion), Sujata Ramachandran (Research Associate, Balsille School of International Affairs, Waterloo) and Oliullah Laskar (Advocate, Gauhati HC). Our moderator will be Mohsin Alam Bhat (Executive Director, CPIL). Please register at to receive the link and password for the webinar.

Announcing the Release Schedule for ‘Securing Citizenship: report on India’s legal obligations towards precarious citizens and stateless persons’

This month, the Centre for Public Interest Law will release its Securing Citizenship report on India’s legal obligations towards precarious citizens and stateless persons. The Report reviews and comments on the key contemporary legal issues pertaining to citizenship and statelessness in India. Divided into three chapters – Citizenship StatusDetention and Socio-Economic Rights – the Report presents recommendations to strengthen the existing legal framework. It focuses on the deplorable conditions of precarious citizens in Assam and stateless persons in India to propose methods of prevention and reduction of statelessness itself. In providing current and immediately relevant legal tools to restore the security previously accorded to citizenship status, the Report aims to bolster advocacy efforts on statelessness in India.

To foster engagement with the report, CPIL is hosting a series of events and symposia in collaboration with Parichay – The Blog . The flagship event will be a webinar on the key themes of the report, taking place on 5th December. Below is the full schedule:

  • 18th November: Excerpts from ‘Securing Citizenship’ will be released on Parichay – The Blog. These excerpts are on the themes of legal recognition of statelessness, the rights of child detainees, and the socio-economic framework of rights for stateless persons. We invite you to reflect on these themes reflected in the excerpts before the release of the Report in its entirety.
  • Final week of November: The Report will be published on the Centre for Public Interest Law (JGU) website. Fellow academics, faculties, and students are invited to read, engage and discuss the Report. We strongly encourage responses to the Report which can be submitted to the Blog.
  • November through December: The blog will feature a series of posts by authors of the report, reflecting on contemporary legal developments relevant to the report. These posts will be accompanied by interviews with scholars with an academic background in studying statelessness in law and practice.
  • 5th December: CPIL and Parichay – The Blog will host a webinar on ‘Securing Citizenship’ with distinguished panelists to discuss the highlights of the report and their reflections on the issue of statelessness. In this flagship event, we hope to introduce the Report to a varied audience and invite anyone interested in the study of citizenship to attend. Please register at to receive the link and password for the webinar.
  • January: Contributions by academics and students, including any submission of responses to the Report, will be published. The call for these contributions is open to all readers!

We look forward to your participation in the release of this report!