CAA Revisited: A Conversation on Citizenship, Refugee Protection and Migration along India’s Western Borders

On the 27th of August, Parichay organized a panel discussion on the May 2021 order of the Ministry of Home Affairs, which significantly relaxes the citizenship process for minority communities from Bangladesh, Afghanistan and Pakistan. The panel focused on migration across India’s Western border and the making of the identities of the refugee and citizen, exploring the legal and social journeys of recognition and assimilation, the structural impediments in the legal regime and the possibility of an alternative system. The speakers were Dr. Farhana Ibrahim, Prof. Natasha Raheja and Ms. Darshana Mitra and the panel was moderated by Prof. Mohsin Alam Bhat.

The themes that emerged out of the panel are as follows:

The need to historicize citizenship and migration along the Western border

Dr. Farhana Ibrahim pointed out that there have been several MHA executive orders that have relaxed immigration and long-term visa requirements for Pakistani Hindus and other religious minorities from Pakistan like the 2003 amendment. These changes have happened continuously after 1947. Prof. Natasha Raheja spoke about her research in Rajasthan, and how people have shared histories and connections, and their mobility predates the existence of borders. Speaking about her research in Rajasthan, she pointed out, “our assumptions about people making these journeys are fixed within the logic of the contemporary India- Pakistan border. Until the more recent border fencing in Rajasthan and Sindh in Punjab in the 1990s, there wasn’t the same sense of partition the way we understood it in other parts of South Asia.” The research conducted by the panelists also revealed other reasons why people choose to migrate. Prof. Raheja indicated that in addition to experiences of religious persecution, caste also played a role in the decision to migrate.  Dr. Ibrahim gave the example of migration by the Sodha community to India from the Tharparkar region in Pakistan after 1971, as they were the only remaining upper caste community in Pakistan and endogamous marriage alliances were increasingly difficult.

Legal inclusion and social inclusion

The speakers also spoke about processes of legal inclusion and social inclusion. They emphasized that even when a statute guarantees visas and subsequently citizenship to a category of refugees, the process itself still takes a very long time. Applicants must undergo immigration inquiries and interviews that can be difficult and humiliating. Within these spaces, the position of lower caste applicants is especially precarious. This painful process of interacting with the citizenship regime is what Prof. Raheja calls a selective welcome. She highlights that, “on one hand, there is a welcoming of Hindu migrants from Pakistan but the reality on the ground is that they undergo the undignifying experience of documentation. Some of the statements that I hear from people is that “In Pakistan we may die because of religion but here we die by paperwork.” 

She highlights how Hindu migrants spoke of the “undignifying experience of documentation.” 

Dr. Ibrahim mentioned that legal inclusion is not always followed by social inclusion. She noted that migrants struggle to be accepted into the Hindu community, even if they had caste privilege, and had to struggle for resources and livelihood. Also, they were still identified socially as “pakistan-wallahs”, keeping intact the stigma of migration and forcing them to establish their Hinduness for acceptance. One can only imagine how much more difficult social assimilation is for people belonging to marginalized communities. 

Darshana Mitra then proceeded to emphasize on the existing legal regime for citizenship applicants and discussed possible alternatives and suggestions that could be borrowed from other jurisdictions. 

Legal impediments to citizenship seekers

Darshana Mitra spoke of how Indian law does not recognize or grant refugees a separate legal status, and most refugees fall into the category of illegal migrants under the Citizenship Act 1955. This becomes a significant barrier as illegal migrants are prevented from applying for citizenship and renders them vulnerable to prosecution for immigration offences under the Passports Entry into India Act or the Foreigners Act. This ‘illegal migrant’ tag does not allow people to avail various government schemes, send their kids to school or even avail proper housing. 

Once they have fallen into the criminal justice system as a criminal or an accused, the pathway to citizenship is effectively closed for them because and then if they are convicted under any of these legislations then the state’s response after conviction is detention and deportation. Granting citizenship to a person who has been convicted under an immigration offense is not an option that is exercised by the state.

The state’s response has been the selective easing of processes for certain communities. The May 2021 order is an example of a significantly truncated process for citizenship registration and naturalization procedure for minorities from Afghanistan, Pakistan and Bangladesh. The order creates a single tier process for registration and naturalization current process, which non-Muslim minorities can avail, while Muslim applicants must go through the existing three-tier process. This means that at the very point of entry, Muslim claims of persecution are rejected, and their pathways to citizenship made significantly harder. A proposed alternative was the rigorous scrutiny of all refugee claims, but after a refugee is admitted, they have the same pathway to citizenship as everyone else, determined by a case-by-case assessment. This would be similar to the system of refugee status determination and subsequent pathways to citizenship implemented in the United States. 

The discussion ended with questions on the way forward, and a consensus that the current legal regime, even with amendments and orders that presumably help migrants and refugees obtain citizenship, is discriminatory and arbitrary, and that there is a need to reimagine a legal system that recognizes why and how migrations take place along India’s borders, and one that can adequately respond to people’s lived realities.

Further references:

  1. Farhana Ibrahim, “Re-Making a Region: Ritual Inversions and Border Transgressions in Kutch” 34.3 Journal of South Asian Studies 439 (2011) https://www.tandfonline.com/doi/abs/10.1080/00856401.2011.620555
  1. Farhana Ibrahim, “Cross-Border Intimacies: Marriage, migration, and citizenship in western India” 52.5 Modern Asian Studies 1664 (2018) https://www.cambridge.org/core/journals/modern-asian-studies/article/crossborder-intimacies-marriage-migration-and-citizenship-in-western-india/72B0E16730FD62F0A18768FF8D919727
  1. Farhana Ibrahim, “Defining a Border: Harijan Migrants and the State in Kachchh” 40.16 Economic and Political Weekly 1623 (2005) https://www.jstor.org/stable/4416504?casa_token=6xdhQ_jmPgcAAAAA%3ABlqAjrS7BTDaCMTwOeLVBTGTUrFL8tpM1eaNaIV71MnBGn-4LpOR_M9zD7Fsxz9P341Yxim_MlcNovOo0c51hxiGuy0sobNv9OKXhmYy7Vv8ZdoF6A&seq=1#metadata_info_tab_contents
  1. Natasha Raheja, “Neither Here nor There: Pakistani Hindu Refugee Claims at the Interface of the International and South Asian Refugee Regimes” 31.3 Journal of Refugee Studies 334 (2018) https://academic.oup.com/jrs/article-abstract/31/3/334/4922733
  1. You can find Parichay’s note on the May 28, 2021 order here.

Parichay Monthly Roundup: July 2021

We, at Parichay, have launched a monthly newsletter to give you updates on citizenship in India and the globe, and highlight some exciting new work that we have been doing. Click here to subscribe!


Updates from Parichay

  • In a provocative essay on the blog, Nivedita Menon, implores us to recognize the feminist issues which lie at the heart of any citizenship discourse. More specifically, in Menon’s words, the essay concerns itself with four questions: 

“First, are citizenship and citizenship rights unambiguously empowering? Second, why is citizenship a feminist issue? Third, should we not cast citizenship rights within the frame of place of work, rather than place of birth? Fourth, what about the place of the non-human in a just and ecologically aligned society?”

  • Leah Verghese and Shruthi Naik by analysing 818 orders passed by Foreigners Tribunal No. 4 in Hajo between 16 June 2017 and 30 December 2019, explore the process of adjudication of citizenship in Assam, in terms of fairness, procedural aspects, and time taken through an analysis of these orders and highlight the flawed citizenship process which haunt Assam. 
  • ​On 28th May, the Central Government issued a notification which empowered the Collectors in certain districts of Gujarat, Chattisgarh, Rajasthan, Haryana and Punjab, to operate under Sections 5 and 6 of the Citizenship Act, 1955 and grant citizenship to the minority communities (Hindus, Christians, Jains, Parsis and Buddhists) from Afghanistan, Pakistan or Bangladesh. Darshana Mitra and Rupali Francesca Samuel have prepared a brief on the order which sets out the contents of the May 2021 order, and its relation, if any, to the CAA 2019. 

Developments in India

  • In a moving article, Mohammad Iqbal, informs us about the Kafkaesque nightmare which haunts Pakistani Hindus in India – a process which engulfs statelessness and renders lives precarious. Unsurprisingly then, various refugees were seen demanding an expedited Citizenship Process, on the World Refugees Day. 
  • In Thamarai v. Union of India, the Madras High Court recently dismissed a plea moved against the deportation of a Sri Lankan national. The Court by suggesting that the law in Maneka Gandhi case cannot be stretched beyond a point, held that:

​​“[He] does not have a fundamental right to stay in India and get Indian citizenship. He knows that his stay in India cannot be eternal. He has to leave India one day or the other”

  • Suggesting that India and the UNHCR failed to provide healthcare and vaccination for Chin refugees, Kimi Colney in a compelling piece, offers insight into the varying forms of violence which are perpetuated against vulnerable groups. ​
  • Observing the importance of citizenship for a person, the Gauhati High Court recently held that citizenship being a very important right of a person should ordinarily be decided on merit rather than by default”

Across Borders: Conversations on Citizenship

  • Recently, Germany has passed a new citizenship law for descendants of Nazi Victims – the law makes it easier for descendants of those who fled Nazi persecution to obtain citizenship. Subsequently, if people have been stripped of their citizenship on political, racial or religious grounds can have it restored, and so can their descendants.
  • The Bahamas Court of Appeal upheld a historic Supreme Court ruling that children born out of wedlock to foreign women and Bahamian men are entitled to citizenship at birth. 
  • Dahlia Scheindlin, informs us of the cruelty which lies at the heart of Israel’s Citizenship Law – a cruelty which for Scheindlin, remains rooted in racist foundations, and arguably, provides a key insight to the violent politics which haunts Israel. ​

What have we been reading? 

  • Articulating a moment in history wherein we are witnessing the “death of asylum itself”, Alison Mountz​‘s recent work, maps out the role of spaces and geographies in allowing the sovereign to place lives in precarious and vulnerable zones. In suggesting that detention spaces are often ‘a global constellation of sites and places where people and places are exploited to carry out exclusion’, Mountz complicates traditional theoretical debates surrounding ‘states of exception’ by highlighting their incomplete-ness. Despite the ominous realisations, Mountz argues that ‘they [activists, migrants, NGOs, etc] are countering the death of asylum with the life of activism’ – a life which we hope to emulate in spaces near us. 

We look forward to bringing you more updates next month! Until then, feel free to reach out at editorial-team@parichayblog.org for comments or feedback. Subscribe here.

Foreigners’ Tribunals

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 Shuchi Purohit, is part of the clinic’s outcomes.

Foreigners’ Tribunals are quasi-judicial bodies set up by the Central Government to determine whether a person is a foreigner or not under the Foreigners’ (Tribunals) Order, 1964, created under the Foreigners Act, 1946. The Executive appoints judicial members to adjudicate cases before FTs. These tribunals differ from other tribunals or courts of law in India in terms of procedure, selection criteria of judicial members, examination of evidence, absence of an appellate body, etc. Presently, as many as 1.4 lakh cases of suspected foreigners are pending before 300 tribunals functioning in Assam. 

History and Establishment of Foreigners’ Tribunals

The primary aim behind setting up foreigners’ tribunals was to avoid arbitrary deportation. The Foreigners Act was first enacted in 1864, to limit the mobility of groups that the colonial British government saw as “disorderly or alien.” The Foreigner’s Act, 1946, which was adopted by independent India, incorporated this objective as well, in a situation where borders were porous and in flux, especially along the eastern borders. However, the Foreigners Act did not incorporate any mechanism for the identification and detection of foreigners. 

The 1961 Census Report focused on preparing data on irregular immigrants. 2,20,691 ‘infiltrants’ were found in Assam due to migration from East Pakistan. The Border police thereafter misused this data as they started detecting and deporting foreigners without any judicial process. The Ministry of Home Affairs then, through powers granted under Section 3 of the Foreigners Act, passed the Foreigners (Tribunal) Order, 1964, so that no person would be deported without a hearing. 

In 1983, the Government of India passed the Illegal Migrant (Determination by the Tribunal) Act, 1983 (‘IMDT Act’). The objective of this Act was to determine foreigners who entered India after 25 March 1971, according to Section 6A of the Citizenship Amendment Act, 1986. Such individuals were ineligible to obtain Indian citizenship and were detected and deported in accordance with the IMDT Act. The IMDT Act differed significantly from the Foreigners Order in one respect: it placed the burden of proof for demonstrating that the individual is a foreigner upon the state. It also defined the eligibility criteria to be a judicial member of the tribunal. An option of the review was available in case a difference of opinion arose among the judicial members.

However, there was growing turmoil in Assam as the leaders of Assam Agitation believed that the IMDT Act was unsuccessful in detecting and expelling foreigners and the issue of irregular immigration remained unresolved. Hence, in 2005, in Sarbananda Sonowal v. Union of India, the Supreme Court declared the IMDT Act as unconstitutional, as it found the procedure laid down in the Act to be “time-consuming”. The Court cited two reasons for its decision. First, that the Act failed to protect the people of Assam from external aggression by the migrants, which is the prerogative of the central government. Second, that in order to uphold national security, there was a need for identification of these foreigners to expedite their deportation. The Court struck down the IMDT Act as unconstitutional, and reverted to the Tribunal regime established under the Foreigners Act and Order, thus shifting the burden of proof to the individual suspected to be a foreigner. 

How do Foreigners’ Tribunals receive Cases?

There are three modes through which the Foreigners’ Tribunals receive cases: references from the Border Police, the Election Commission of India, and the National Register of Citizens. There are presently 1.9 million people who are excluded from the final draft of the NRC, waiting for their fate to be decided, as the process for their claim to citizenship before FT is yet to be started. 

Almost every district in Assam has Assam Police Border personnel stationed, who identify and investigate alleged foreigners based on their discretion. Cases identified by the Border Police are referred to FTs for final adjudication. However, civil society organisations argue that this power is often abused by the Border Police as they do not follow any investigatory guidelines to identify alleged foreigners, as laid down by the Gauhati High Court

Individuals can also be identified as foreigners by the Election Commission. In 1997, the ECI had identified around 2,30,000 voters as ‘doubtful,’ whose cases were then referred to FTs for adjudication. 

Finally, the National Register of Citizens in Assam is an exercise identifying all Indian citizens in the state. Individuals excluded from the list are identified as foreigners, who will have to prove their citizenship before FTs. In 2019, the final NRC list was released, which excluded around 19 lakh people from citizenship. In May 2021, the NRC Coordinator had filed an application before the Supreme Court seeking re-verification of the NRC, stating that some ‘issues of substantive importance’ cropped up while preparing the rejecting slips, thus delaying the process.

Lapses of Foreigners’ Tribunals in India

India is a party to the International Covenant on Civil and Political Rights (ICCPR) and is hence bound by its treaty obligations. Article 14(1) of ICCPR states that every person is entitled to a “fair and public hearing by a competent, independent and impartial tribunal established by law.” The Foreigners Act falls short on each criterion set by ICCPR, as it fails to establish standardised criteria of eligibility for its members. 

Scholars and civil society organisations have raised concerns regarding the independence and impartiality of these tribunals. The appointed members of the Foreigners’ Tribunal do not have any specialized training in law or adjudication. This is evidenced by the Gauhati High Court’s circular seeking to appoint senior civil servants as members of the Foreigners’ Tribunal, as opposed to persons having prior adjudicatory or legal experience. Moreover, membership with the Tribunal is renewed or terminated depending on the conviction rate. Thus, members of the Foreigners’ Tribunal would be incentivised to declare more people as foreigners, to retain their seats. This leads to an inherent conflict of interest, which falls short of the requirement of impartiality.

The Act also fails to state the training a member needs to carry out the judicial duties, thus compromising the requirement of competency. In 2015, the training received by the 63 selected members spanned merely four days. Out of those, only two were former or serving judicial officers. Moreover, the Government of Assam has further lowered the threshold of experience required from 10 years to 7 years. The age limit of induction which was previously 45 years, is now 35.

The tribunals are empowered to regulate their own procedures, as provided by the 1964 Order. Civil society organisations have noted that in practice, this power is abused and the tribunals do not provide documents such as written statements, witness depositions, etc., which are necessary for an individual to fairly contest and appeal their case. More than 60% of cases are decided ex-parte, as most individuals do not receive show-cause notices. The Gauhati High Court had stated that since Foreigners’ Tribunals are not civil but rather quasi-judicial bodies, the principle of res judicata does not apply. However, the Supreme Court in Abdul Kuddus v. Union Of India, later overturned this ratio, finding instead that quasi-judicial orders rendered by Foreigners’ Tribunals have civil consequences. Therefore, the doctrine of res judicata would apply. Further, the orders passed by Foreigners’ Tribunals cannot easily be found in the public realm, making the entire process opaque.

The Foreigners Act and Order do not provide for a right to appeal against the decision of a Foreigners’ Tribunal and set up no appellate body. All appeals have to be made to the High Court and Supreme Court. There are various factors such as litigating costs, locations, the prolonged duration of appeals etc. which act as barriers to individuals approaching appellate courts for a review of their decision. Even if they wish to do so, this right has become judicially restricted through the decision of the State of Assam v. Moslem Mandal. The decision states that the tribunal is the final fact-finding body, post which facts cannot be challenged during the appeal. However, facts are the most important aspect of such cases. Lawyers practising in FTs note an alarming difference between the prescribed methods for fact-finding and how facts are actually obtained by the Border Police. The guidelines laid in Moslem Mandal propounded that the referring authority must forward their observations recording their satisfaction in such a manner that demonstrates their application of mind to the facts and circumstances of the case; however, the fact-collection procedure is largely ignored. 

Conclusion

The objective of the 1946 Act was to deport legitimate foreigners in the Indian territory, rather than to determine the citizenship status of the masses to declare them foreigners. The functioning of these tribunals fails to take into consideration the grave risks associated with statelessness. It forces targeted individuals to live in limbo with constant anxiety over their civil and political rights. 

Suggested readings

  1. Amnesty International India, ‘Designed To Exclude: How India’s Courts Are Allowing Foreigner Tribunals To Render People Stateless In Assam,’ (2019) <https://www.amnesty.be/IMG/pdf/rapport_inde.pdf>.
  2. Talha Abdul Rahman, ‘Identifying the Outsider: An Assessment of Foreigner Tribunals in the Indian State of Assam’ VOL 2 NO 1 (2020): STATELESSNESS & CITIZENSHIP REVIEW <https://statelessnessandcitizenshipreview.com/index.php/journal/article/view/141>. 
  3. Sangeeta Barooah Pisharoty, ‘Explainer: What Do the MHA’s Changes to 1964 Foreigners Tribunals Order Mean?’ (The Wire, 14 June 2019) <https://thewire.in/government/foreigners-tribunals-order-mha-changes
  4. State of Assam v. Moslem Mandal and Ors. (2013) 3 Gau LR 402.
  5. Mohsin Alam Bhat, ‘Twilight Citizenship’ (2020) 729 Seminar <https://www.india-seminar.com/2020/729/729_m_mohsin_alam_bhat.htm>. 
  6. Citizens Against Hate, ‘Making Foreigner: Report on NRC Updation in Assam and the Risk of Mass Statelessness’ (2018) <https://citizensagainsthate.org/wp-content/uploads/2019/06/Making-Foreigner.pdf

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.    

SUGGESTED READINGS:


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.   

People, Non-People, Citizens: A Feminist Perspective

Nivedita Menon is Professor, Centre for Comparative Politics and Political Theory, Jawaharlal Nehru University, New Delhi. This essay is developed from two earlier versions – a) Paul de la Gueriviere Memorial lecture, Indian Social Institute, Delhi; Jan 31, 2020 b) “Citizenship in Terminal Crisis? Thinking beyond twentieth century verities” in Richard Falk, Manoranjan Mohanty, Victor Faessel eds. Exploring Emergent Global Thresholds (Orient Blackswan 2017). A shorter Hindi version of this lecture was delivered at Shaheen Bagh, New Delhi on January 26, 2020.


This essay considers four interrelated questions.

First, are citizenship and citizenship rights unambiguously empowering? 

Second, why is citizenship a feminist issue?

Third, should we not cast citizenship rights within the frame of place of work, rather than place of birth?

Fourth, what about the place of the non-human in a just and ecologically aligned society?

I

Are citizenship and citizenship rights unambiguously empowering?

On the contrary, the very idea of ‘citizen’ produces simultaneously, as its shadow, the ‘non-citizen’ in the form of the Refugee and the Migrant.

The shadow cast by the idea of citizenship has been long recognised. This darkness arises from the location of citizenship rights in the nation state. As Ranabir Samaddar points out, a nation-state is made up of citizens, but it is the nation-state which defines who its citizens can be. Not everyone who is willing to be a citizen, not all those willing to participate in nationhood, can do so. The rights of citizenship are powerful precisely because they are available only to the community delimited by the discursive practices of the nation-state.[1] The point is that however inclusivist they may be, citizenship rights within nation-states are necessarily exclusionary. The resources of the nation, it is assumed, should be used for the benefit of citizens, thus creating a zone of privilege for them.

Thus, as Samaddar points out, the nation-state always has two subjects, the Citizen and the non-Citizen – the latter in the forms of the migrant and the refugee.

The refugee, according to Hannah Arendt, is the paradigm of a new historical consciousness – ‘Refugees expelled from one country to the next represent the avant-garde of their people.’[2] Giorgio Agamben, in an intense reflection on this essay fifty years later, notes that the appearance of refugees as a mass phenomenon comes into being with the emergence of the modern nation-state system that began to be put into place after World War I. Only a world of sovereign states that had categories of people called ‘citizens’ and that were intent on regulating population flows across/s ‘borders’ could produce the legal category of ‘refugees’. The collapse of multi-national, multi-ethnic empires (the Russian, Austro-Hungarian and Ottoman empires) and the creation of new, ethnically defined states forced minorities to flee, but with few places to go to because of the new, increasingly restrictive immigration laws. It is in response to this development that the High Commission of Refugees was formed in 1921, to deal with the enormous problem without impinging on the sovereignty of nation-states. After World War II this became a permanent international institution in the form of the UNHCR.

The UNHCR was clearly limited in the way in which ‘refugee’ was defined by the 1951 Convention relating to the Status of Refugees  – only displaced people on the other side of the territorial border were to be considered refugees, not internally displaced people, and only those who could prove ‘persecution’ by national governments – not those fleeing their countries because of economic hardship, ecological disasters, famines. The refugee law was also very clearly worded in order not to recognize Palestinians (Israel had been formed in 1948) as refugees.

‘In the best of cases’, writes Agamben, ‘the status of the refugee is always considered a temporary condition that should lead either to naturalisation or repatriation. A permanent status of man in himself is inconceivable for the law of the nation-state’.[3]

The migrant represents the phenomenon of movement of populations that has been widespread and common over the globe for several hundreds of years. This movement has been both voluntary (seafaring traders, pastoral nomads, invading armies that end up settling the lands they conquer) and forced (slave trade, indentured labour to run plantations). Thus what is called ‘migration’ is actually a continuation of natural human flows through the centuries, suddenly rendered illegal by new national borders. What now require to be called new rights, Samaddar says, such as the right to move across national borders for trade, work, or for grazing of animals for example, are not new privileges, but simply the re-legitimation of old practices.[4]

However, once the nation-state system was put firmly in place, such movements themselves came under scrutiny from the new ‘homelands.’ From this point onwards, (approximately the early 20th century), migration began to be closely linked to the issue of the security of nation-states. Migration is no longer simply an issue of demography or labour economics, it is now perceived as an issue that concerns a nation’s very survival.

But the other side of this is that not all immigrants want to become citizens in the country where they work. With reference to Bangladeshi workers in India, for example, Samaddar says, ‘in their own minds they are only temporary shelter seekers since they are still Bangladeshis to their own selves’.[5] Migration, thus, is accompanied often by a sense of desolation, loss, and nostalgia.

Across India, Adivasi migrant labour, for example, travels, driven by violent appropriation of their jal, jangal and jameen. Nirmala Putul, Adivasi poet, writes to “Maya”, an Adivasi woman she invokes, who has migrated to Delhi:

दिल्ली

नहीं है हम जैसे लोगों के लिए

क्या तुम्हें ऐसा नहीं लगता माया

कि वह ऐसा शमशान है जहाँ

जिंदा दफ़न होने के लिए भी लोग लाईन

में खड़े है ?

झारखण्ड की धरती संताल

परगना की माटी

दुमका के पहाड़

और काठीकुंड के उजड़ते

जंगल पुकार रहे हैं तुम्हें,

तुम जहाँ भी हो लौट आओ माया !

लौट आओ !!

All of this should lead us to question the nation as the space of liberation and emancipation, the natural home of the citizen – challenging this assumption requires us to recognise that nation states are formed by the unceasing, relentless drive to erase heterogeneity.

Take Europe, where the birth of nation states took place. Étienne Balibar points out that the construction of European nations involved the constitution of a ‘fictive ethnicity’ through the nationalisation of cultures, languages and genealogies with different histories, leading to ‘permanent rivalry’ from the inside.[6] Similarly, Crispin Bates points out that the English believe their own history to be continuous, but the so-called “English” culture is a mélange of ‘Celtic, Pict, Angle, Saxon, Viking, Norman, Asian, Caribbean, Polish, Italian, Huguenot, French, East European and of course, American cultures’.[7] By selecting from this mélange however, a set of ideas is upheld that somehow enshrines one ‘English’ identity.

The Indian project of ‘nation-building’ has been similarly beleaguered, whether we consider flash points like the North-East and Kashmir, or day-to-day politics among the state units of India’s federal polity, which in instances like river-sharing and linguistic reorganisation, take on the language of exclusive nationalism vis-à-vis one another. We have no option but to recognise such instances as illustrating the historical impossibility of attaining one kind of final nationhood. The ‘homelandist imagination’ is ever-limiting, and its ties to notions of shared historical culture can only be disempowering for those defined as the Other.[8] For example, within the North Eastern struggles for self determination vis-à-vis the Indian state are present also, internecine violence and rival claims to territory between different tribal and religious groups – between Bodos and Muslims, between Manipuris and Nagas.

Michael Mann has pointed out that murderous ethnic cleansing is quintessentially modern, it is ‘the dark side of democracy’. Democracy means rule by the people, but in modern times, ‘people’ has come to mean not just the masses but also nation, or particular ethnic groups, a people that share ‘a common heritage and culture.’ What happens, Mann asks, when ‘people’ is defined in ethnic terms, outweighing the diversity that is central to democracy? ‘If such a people is to rule (in its own nation state), what is to happen to those of a different ethnicity?’ Answers to this question, he adds, ‘have often been unpleasant’.[9]  

But if we remember that migration as human flows predate nation states, then we recognise yet another aspect of migration – migration as empowering. This aspect of migration leads us to our second question.

II

Why is citizenship a feminist issue?

Because citizenship is primarily based on proof of birth in a heterosexual patriarchal family, an institution that structurally undergirds caste, class, and gender injustice.

The structure and ideology of the patriarchal family is best illustrated by the reactions to the growing feminization of migration flows, both internal and external, and increasing flows of ‘single’ women migrating abroad as independent labourers in search of better lives for themselves and ‘their’ families.

One response has been to frame such movement in terms of ‘trafficking’. But an intensely destabilising perspective on citizenship and migration is provided by feminist critiques of anti-trafficking initiatives. The notion of ‘trafficking in persons’ has become closely linked to the abolitionist position on sex work, and has acquired great clout and visibility internationally, with feminists from the first world leading anti-trafficking campaigns. In their definition, trafficking is linked to migration, with trafficking being understood as ‘forced migration.’

Many other feminists on the other hand, are critical of anti-trafficking initiatives, particularly of the US Anti-Trafficking Act 2000.[10] They show how these initiatives collapse the distinction between (voluntary) sex-work and (coerced) trafficking, treating all cross-border movements of women as coerced; thus excluding these women from legal recognition, and casting their families as criminals. There has been pressure on the U.S. government from international groups working on public health and human rights to rethink current U.S. law that makes funds for HIV/AIDS-prevention programmes conditional on opposing prostitution. Such a requirement, it is argued by feminist critics of anti-trafficking campaigns, vitiates health programmes among sex-workers and fails to protect the most vulnerable sections. There is also militant opposition from sex-workers themselves to anti-trafficking policies being promoted by Western and South Asian countries and some feminists and human rights groups.[11]

Feminist legal scholar and activist Flavia Agnes has suggested a conceptual move away from the notion of a vulnerable subject to that of the risk-taking subject. She argues that migrants, including those in sex work, exercise agency and demonstrate decision-making abilities, which seek to maximise their own survival as well as the survival of their families. For example, many women negotiate the terms of their own movement and utilise technological networks to plan their migration and keep in contact with others in their country of origin. Women’s perceptions of themselves and of their ‘exploiters’ provide a further challenge to the traditional and stereotypical images of victim and perpetrator. For example while the dominant image of women in the sex industry is that of subjugated, dominated, objectified and abused persons who are preyed upon by conniving men, studies of women in the sex tourism industry in various countries reveal that women view it as an arena of negotiations to improve their own economic situation.

In addition, Agnes points out, as do many other feminists, that the trafficking agenda has come to be increasingly influenced by a conservative sexual morality, which casts ‘good’ women as modest, chaste, and innocent. Challenges to this understanding are seen as posing a dual threat – to women themselves and to the security of society. This produces a ‘protectionist agenda’, within which no distinction is drawn between willed and coerced movement. All movement of women is seen as coerced, thus reinforcing assumptions of third world women as victims, infantile and incapable of decision-making.[12]

From this feminist perspective, we can see migration not just as loss, but also as empowering, as producing new subjectivities.

But there is yet another layer here, when we consider the phenomenon of migration from the point of view of the transformations within these relocated communities. For instance, Naila Kabeer’s book on Bangladeshi women workers addressed the apparent paradox that while women garment workers in Dhaka entered garment factories and worked unveiled, Bangladeshi women in the garment industry in London were almost entirely confined to home-working. One of Kabeer’s main explanations for this is that women in Dhaka come from diverse geographical backgrounds into a relatively anonymous urban setting while the women in London came mostly from one province, Sylhet, where society is extremely conservative, even by Bangladeshi standards. In London, they tend to settle in one part of East London because of community networks drawing new migrants into that area where Bangladeshis have become concentrated. This concentration and regrouping of the community is of course, set within a context of growing racist hostility which leads to the familiar phenomenon of minority communities drawing “their” women “inside”. Men then, work in the factories and women at home – with the additional labelling of women’s labour as unskilled, and men’s as skilled. Kabeer argues that the processes of globalisation by which garment factory sweatshops get located in countries like Bangladesh empower women who, despite exploitative conditions of work, find their options increased. She suggests that the agency of women is enhanced by the effects of globalisation in the South.[13]

Many scholars and activists have suggested therefore that we need a political practice that questions the very legitimacy of sealed national borders that we have come to take for granted over the last century. National border regimes must be opened up as well as the labour markets organised through them. There must be an end to discrimination based on one’s nationality. These are the demands of the growing group of ‘No Borders’ activists across the world. A radical political practice is called for, ‘struggles for a decolonized commons’, that challenges the barbed-wire borders of nation-states.[14]

We need to question citizenship by birth also from the perspective of the biological, familial foundation of citizenship that we outlined at the beginning of this section.

This foundation remains un-thought and unquestioned in progressivist narratives of citizenship. Compulsory heterosexuality undergirds most forms of identity – caste, race and community identity are produced through birth. But what we fail to note and criticise adequately is that birth in a particular kind of family determines too the quintessentially modern identity of citizenship. The purity of these identities, of these social formations and of existing regimes of property relations is protected by the strict policing and controlling of sexuality, and by the institutions of compulsory heterosexuality. Thus, the family as it exists, the only form in which it is allowed to exist – the heterosexual patriarchal family based on marriage and the sexual division of labour – is key to maintaining nation, state and community. The imperative need is to restructure institutional and public spaces in a manner that will enable the breaking down of this division of labour as well as the normativity of this particular form of the family.

What then would be the basis of citizenship if the naturalised notion of ‘birth’ is deconstructed in this way? We would be forced to think of alternative sources of citizenship rights – through claims to ‘family’ ties by heterogeneous and fluid forms of intimacy that refuse to be legible to the state, and equally importantly, as located in place of labour, not birth.

And this brings us to our third question.

III

Should we not cast citizenship rights within the frame of place of work, not place of birth?

Mahmood Mamdani argues in the context of Africa, that the notion of citizens’ rights as attached to place of birth has increasingly anti-democratic consequences because of the history of large-scale migration on the continent, which means that at any given time, hundreds of thousands of people are not living in the land of their birth. They thus have no citizens’ rights for the large part of their lifetime. Mamdani rejects the post-colonial assumption that cultural and political boundaries should coincide, and that the natural boundaries of a state are those of a common cultural community. This assumption makes indigeneity the litmus test for rights under the postcolonial state.

Mamdani argues, contrary to nationalist wisdom, that cultural communities rooted in a common past do not necessarily have a common future. Political communities rather, are to be defined not by a common past but by the resolve to forge a common future ‘under a single political roof’. He believes therefore, that citizens’ rights should be attached to place of labour, not place of birth.[15]

Consider the supporters of Hindutva politics in India, who live in the USA and UK, and unquestioningly take advantage of citizenship rights that protect immigrants and minorities. They publicly celebrate the Prime Minister of their erstwhile country, publicly observe their festivals; build their temples, even direct the foreign policy of political parties in the countries in which they live and work – for instance, UK’s Labour party back-tracked on its Kashmir resolution[16] criticising the lockdown of the state, under pressure from multiple British-Indian bodies.[17] They demand full citizenship rights for themselves in their country of residence, while financially supporting the policies of Hindutva that disenfranchise minorities and immigrants in the country they have left.

The poet Rahat Indori’s famous words – sabhi ka khoon shaamil hai is mitti mein (‘the blood of each one of us is mingled in this soil’) –indicate, in my reading, not just the shared blood of birth and martyrdom. We can derive a different sense of ownership of “India” from Indori’s stirring words. I read khoon as used in the common term khoon pasina – the blood and sweat of toil. If our blood and sweat is fused with this soil, then that far exceeds the mere accident of birth.

In other words we take seriously the implications of the fact that the Preamble of the Indian constitution is in the name of hum bharat ke log, not hum bharat ke nagrik.

How will everyone be looked after? Resources are not lacking. Distribution is the point. In Kerala, for instance, the children of immigrants from Bihar and UP get free education and everything else that residents of Kerala get, not just those born in Kerala, or those who bear a “Malayali” identity.

We recently learnt that the total income of 63 crorepatis was greater than India’s annual budget for 2018- 2019.[18] Where did that income come from? Subsidies for the poor is vote-bank politics, subsidies for the rich is development?

What was the cost of the now rejected NRC in Assam? 1220 crores![19] A complete waste of public money especially as it will be repeated, if the Home Minister has his way. In December 2019, the Union cabinet sanctioned Rs 4000 crores[20] for the National Population Register, an exercise that overlaps with the Census and is therefore redundant, but which has the only feature the Census does not have – the category of the doubtful citizen.

Clearly there is no shortage of resources in India to ensure state funding for basic human rights for all residents – healthcare, education, food.

IV

Finally, can we speak about citizenship in a radically transformative way without considering the non-human?

What happens if we take seriously the idea that the separation of the world into the natural and the social-political is the founding mythology of modern thought, as Bruno Latour insists. The formative idea of Latour is that the natural and social orders are ‘co-produced’, produced together. Latour uses the word ‘collective’ to describe the association of humans and nonhumans, and the word ‘society’ to designate ‘one part only of our collectives, the divide invented by the social sciences’.[21]

If citizenship must be re-considered in terms of recognising the non-human world, then pre/non-modern cultural formulations and knowledge systems, both western and non-western, have much more to give us than Enlightenment thought. For instance, it is under conditions of modernity that the age-old domestication of animals has evolved into what Barbara Noske calls the ‘animal-industrial system’, which forces animals to specialise in one skill. The animal’s life-time ‘has truly been converted into working time, into round-the-clock production’.[22]

With regard to nature, Thomas Lemke has pointed out that even the discourse of ‘sustainable development’ is central to ‘the government of new domains of regulation and intervention’:

One important aspect of the ‘new world order’ is the reconceptualisation of external nature in terms of an ‘ecosystem’. Nature, which once meant an independent space clearly demarcated from the social with an independent power to act, and regulated by autonomous laws, is increasingly becoming the ‘environment’ of the capitalist system…In an age of ‘sustainable development’, previously untapped areas are being opened in the interests of capitalization and chances for commercial exploitation. Nature and life itself are being drawn into the economic discourse of efficient resource management. [23]

Or as Arturo Escobar puts it: ‘the key to the survival of the rainforest is seen as lying in the genes of the species, the usefulness of which could be released for profit through genetic engineering and biotechnology in the production of commercially valuable products, such as pharmaceuticals. Capital thus develops a conservationist tendency, significantly different from its usual reckless, destructive form’.[24]

The key idea here is ‘regulation’ – the environment is to be regulated in the interests of long-term extraction. Within this perspective, even renewable sources of energy are envisaged as necessary only to ensure endless consumption. There is no sense here that assumptions about consumption, urbanization, and endless growth will have to be drastically rethought.

Bolivia’s Law of Rights of Mother Earth (2010), which establishes seven rights of Mother Earth, including the right to life, biodiversity, pure water, clean air, and freedom from genetic modification and contamination, is potentially revolutionary.[25] However, who is to protect these rights? If local communities were the guarantors of these rights, this would mean a significant break from the nation-state paradigm. However, this law too, appears to be designed to enable the state to facilitate resource extraction and industrial development while protecting ‘Mother Earth’. Vice-President Alvaro Garcia Linera stated at the law’s promulgation ceremony: ‘If we have to extract some mineral, we have to extract it, but finding equilibrium between the satisfaction of needs and protecting Mother Earth.’[26]

So is that all it is – “sustainable” development, once again?

If the agency of the non-human is to be acknowledged, this has implications for the very idea of citizenship. This is because any attempt to deal with the looming ecological crisis in centralised ways at the level of states is bound to fail. The only way out is through secession into decentralised, local ways of life, a replenishing of the commons, and rejecting the idea of growth altogether, as the Degrowth Movement boldly states:

Sustainable degrowth is a downscaling of production and consumption that increases human well-being and enhances ecological conditions and equity on the planet. It calls for a future where societies live within their ecological means, with open, localized economies and resources more equally distributed through new forms of democratic institutions… The primacy of efficiency will be substituted by a focus on sufficiency, and innovation will no longer focus on technology for technology’s sake but will concentrate on new social and technical arrangements that will enable us to live convivially and frugally. Degrowth does not only challenge the centrality of GDP as an overarching policy objective but proposes a framework for transformation to a lower and sustainable level of production and consumption, a shrinking of the economic system to leave more space for human cooperation and ecosystems.[27]

Such a retreat is not a benign, apolitical act, but a deeply political blow to the continuing violence of corporate capital and the state systems that sustain it. Citizenship cannot but be radically rethought – perhaps even rejected – within such a framework, which insists on ‘societies’ rather than ‘states’, rejects the very idea of the national GDP as an indicator of the good life, and redefines good living in terms of conviviality and frugality. The Citizen grounded in the Nation-State imaginary is rendered utterly irrelevant.

We arrive therefore, at citizenship oriented towards the future, not based on a past.

Let me conclude by saying that Shaheen Bagh and all the other vibrant, massive anti-CAA protests all over India, can lead us to a more inclusive idea of citizenship. Not the narrow one that says who should be excluded, but one that embraces heterogeneous religions, political and other cultures and sexualities, and which challenges patriarchy and caste injustice. An idea of citizenship that claims solidarities based not on fictive histories of the past, but on hopeful narratives of the future.


[1] Ranabir Samaddar , The Marginal Nation: Transborder Migration from Bangladesh to West Bengal (Sage Publications 1999).

[2] Hannah Arendt (1943) quoted in Giorgio Agamben, ‘We refugees’ (1995) Symposium No 49 (2).

[3] Giorgio Agamben, ‘We refugees’ (1995) Symposium No 49 (2), p. 117.

[4] Ranabir Samaddar , The Marginal Nation: Transborder Migration from Bangladesh to West Bengal (Sage Publications 1999), p. 40.

[5] Ranabir Samaddar , The Marginal Nation: Transborder Migration from Bangladesh to West Bengal (Sage Publications 1999), p. 107.

[6] Étienne Balibar, We the People of Europe? (Princeton University Press 2004), p. 8.

[7] Crispin Bates, ‘Introduction: Community and Identity among South Asians in Diaspora’ in Crispin Batesed. Community, Empire and Migration South Asians in Diaspora, (Palgrave 2001), p. 22.

[8] Sanjib Baruah, ‘Nations within nation-states’ (Hindustan Times, October 13 2005).

[9] Michael Mann, The Dark Side of Democracy: Explaining Ethnic Cleansing (Cambridge University Press 2005), p. 3.

[10] https://www.govinfo.gov/content/pkg/PLAW-106publ386/pdf/PLAW-106publ386.pdf

[11] Ratna Kapur, Erotic Justice: Law and the New Politics of Postcolonialism (Permanent Black 2005).

[12] Flavia Agnes, ‘The Bar Dancer and the Trafficked Migrant Globalisation and Subaltern Existence’ (30 December 2007) Refugee Watch, Issue No. 30.

[13] Naila Kabeer, The Power to Choose: Bangladeshi women and labour market decisions in London and Dhaka (Sage Publications 2001).

[14] Nandita Sharma, Home Rule: National sovereignty and the separation of natives and migrants (Duke University Press 2020).

[15] Mahmood Mamdani, (1992) ‘Africa Democratic Theory and Democratic Struggles’ (October 10 1992) Economic and Political Weekly,Vol – XXVII No. 41.

[16] https://www.firstpost.com/world/britains-labour-partys-u-turn-over-kashmir-issue-reveals-growing-clout-of-indian-diaspora-that-supports-narendra-modis-policies-7647241.html

[17] https://www.livemint.com/news/world/over-100-british-indian-bodies-challenge-corbyn-s-kashmir-stance-11571055787734.html

[18] https://www.thehindu.com/business/Economy/combined-total-wealth-of-63-indian-billionaires-higher-than-the-total-2018-19-union-budget-oxfam/article30604631.ece

[19] https://www.firstpost.com/india/rs-1220-cr-and-10-years-later-nrc-leaves-group-favouring-exercise-disastified-final-list-raises-questions-false-claims-on-migrants-7271991.html

[20] https://pib.gov.in/PressReleseDetail.aspx?PRID=1597350

[21] Bruno Latour, We Have Never Been Modern (Catherine Porter tr., Harvard University Press 1993), p. 4.

[22] Donna J. Haraway, ‘Otherwordly Conversations, Terran Topics, Local Terms’ in Stacy Alaimo and Susan Hekman (eds.) Material Feminisms (Indiana University Press 2008), p. 177.

[23] Thomas Lemke, ‘Foucault, Governmentality, and Critique’ (2002) Rethinking Marxism 14(3), p. 55.

[24] Arturo Escobar quoted by Lemke, ‘Foucault, Governmentality, and Critique’ (2002) Rethinking Marxism 14(3), p. 56.

[25] http://archive.wphna.org/wp-content/uploads/2014/07/2010-12-07-Bolivian-Law-of-rights-of-Mother-Earth.pdf

[26] https://nacla.org/blog/2012/11/16/earth-first-bolivia%25E2%2580%2599s-mother-earth-law-meets-neo-extractivist-economy

[27] https://degrowth.org/definition-2/

Deprivation of Citizenship

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 Khush Aalam Singh, is part of the clinic’s outcomes.

Deprivation of citizenship can be defined as an involuntary loss of citizenship status that was previously held by a person. It is a predominantly legal concept which carries serious consequences. This is because citizenship of a state gives a person access to several rights and protections guaranteed by the state. Acquiring citizenship carries a sense of recognition in social, political, and legal terms. Citizenship also provides access to the conditions and services which are vital for a person’s dignified existence. If a person is deprived of their citizenship, they no longer have a claim to its benefits. This can also get carried forward to the person’s descendants, impacting their access to rights. Additionally, citizenship deprivation may result in the removal of the person from the territory of the state, thereby violating their right to reside in their country.

The idea of deprivation of citizenship has been echoed in various similar expressions. These include terms such as: revocation of citizenship, involuntary loss of citizenship, denationalisation, citizenship erasure etc. While revocation, denationalisation, and involuntary loss do not carry substantial difference from deprivation, citizenship erasure is a concept that requires further classification. Citizenship erasure is described as the “arbitrary retroactive non-recognition” of citizenship of a person. This has been considered distinct from deprivation as it denies the very existence of citizenship status claimed by a person outright, whereas deprivation is carried out in accordance with law. In other words, deprivation takes place in accordance with deprivation provisions contained in a state’s citizenship law, whereas erasure does not involve the formal procedure. Nonetheless, for the purposes of this note, citizenship erasure falls within the ambit of deprivation, as the consequence is the loss of nationality which was not voluntary in nature. In many situations, deprivation of nationality can result in a person becoming stateless. This may leave them vulnerable to human rights violations without any effective recourse.

Deprivation of Citizenship in Domestic and International Law

Under Indian law, the principal framework for deprivation of nationality is the Citizenship Act, 1955 as well as the rules made thereunder. Section 10(2) of the Act empowers the Central Government to deprive a person of their citizenship. This power to deprive citizenship, however, applies only in the case of persons who have acquired citizenship by naturalisation, registration or by ordinary residence in Indian territory five years prior to the commencement of the Constitution. This means that persons who are born in Indian territory or to parents who are Indian citizens cannot be deprived of their citizenship under this provision (jus soli and jus sanguinis citizenship).

Deprivation of citizenship under Section 10 of the Act can only be ordered on specific grounds. The implication of these grounds is that the state cannot arbitrarily deprive persons of their citizenship. The grounds set out in Section 10 must be adhered to. These include (among others) – obtaining citizenship by fraud, disloyalty or disaffection by act or speech to the Indian Constitution, unlawful trade or communication with an enemy, etc. Section 10(3) provides that the Central Government shall not deprive a person of their citizenship unless it is satisfied that the continuation of citizenship is not conducive to the public good. The Telangana High Court in Dr. Ramesh Chenammameni v. Union of India has held that the requirement under Section 10(3) is mandatory, and that a person cannot be deprived solely on the ground of satisfying the conditions under Section 10(3). The Central Government has to satisfy both counts – that the person in question has violated the provisions of Section 10(2) and that the continuation of citizenship is not conducive to the public good.

The principal framework under international law dealing with deprivation of citizenship is the 1961 Convention on the Reduction of Statelessness. Article 8 of the Convention prohibits depriving a person of their nationality where the result of such action would be the person becoming stateless. Clauses 2 and 3 of the Article contain exceptions to this prohibition, which include obtaining nationality of the Contracting State by fraud or misrepresentation, conduct that is seriously prejudicial to the vital interests of the state etc. Article 9 of the Convention prohibits deprivation of nationality of a person or a group of persons on racial, ethnic, religious or political grounds. While India is not a signatory to this Convention, its courts have been mindful of statelessness as a consequence of deprivation of citizenship.

Additionally, India is obliged under its treaty obligations to prevent statelessness as a consequence of deprivation of nationality. It is also obliged to ensure that no person is arbitrarily deprived of their nationality. Article 15(2) of the Universal Declaration of Human Rights (UDHR) prohibits arbitrary deprivation of nationality. This prohibition has now been recognised as a well-established norm of customary international law. Furthermore, India had a vital role to play in advocating for the insertion of Article 15(2) during the drafting of the UDHR.

The Right against Arbitrary Deprivation of Nationality

The right against arbitrary deprivation of nationality finds mention in the UDHR and several international conventions, such as the International Covenant on Civil and Political Rights (ICCPR) etc. This is supplemented by its inclusion in regional frameworks, such as the American Convention of Human Rights (Article 20). This right is of crucial importance when looking at instances of deprivation of citizenship. This is because this right covers two situations of deprivation. Deprivation can be a result of the procedure established in municipal law or by discriminatory refusal to recognise a person or group of persons as citizens. The understanding of arbitrariness under international law is not limited to something being ‘against the law’. It has been understood in a broader sense, encompassing elements of unfairness, inappropriateness and injustice. Arbitrariness also seeks to ensure that ‘lawful’ interference with rights of a person is reasonable. This requires robust substantive and procedural safeguards, as well as conformity to both domestic and international law.

There are several aspects of citizenship deprivation in India that remain unaddressed, raising strong concerns about arbitrariness. Several bonafide Indian citizens face the threat of arbitrary deprivation of their nationality as a result of the process of expelling ‘foreigners’. In particular, over 1.9 million persons in Assam excluded from the National Register of Citizens (NRC) are at the brink of statelessness. Their fate will be decided by the Foreigners Tribunals which raise many significant due process concerns. The current policy on deprivation does not account for deprivation of citizenship through parallel procedures sanctioned by law. Furthermore, there are several inadequacies in terms of substantive and procedural rights for persons being deprived of their citizenship. As a result of wrongful deprivation, a person will languish in detention for the purpose of deportation. These consequences are particularly grave and debilitating, therefore requiring extreme caution and respect for human dignity. Thus, citizenship deprivation calls for greater attention as an urgent issue that needs to be addressed.

Suggested Readings:


The Indian Judiciary and Its Record on Statelessness

Anushri Uttarwar is a fourth-year B.BA. LL.B.(Hons.) student and Student Fellow at Centre for Public Interest Law, Jindal Global Law School. Arunima Nair is a second-year LL.B. student at Jindal Global Law School and an Editor of the Parichay Blog. Anushri and Arunima are among the authors of Securing Citizenship: India’s legal obligations towards precarious citizens and stateless persons, released in November 2020. 

Securing Citizenship highlights India’s legal obligations towards stateless persons and precarious citizens within its territory. It does so by expounding the applicable international human rights framework to the state, with every person’s right to nationality and every state’s duty to prevent statelessness as its two integral interwoven threads. Additionally, the report links the said international framework to the Indian state’s corresponding obligations under present domestic law. This article discusses one such aspect viz. the approach of Indian courts in cases involving persons of uncertain nationalities.  

The Indian state’s efforts to uphold every individual’s right to nationality and its duty to avoid and reduce statelessness have been minimal. It has not signed either of the two international conventions on statelessness and has not actively engaged in any global efforts to fight statelessness. As we have noted in our report, neither the Foreigners Act, nor the Citizenship Act, nor the Passport Act and their attendant rules, account for the legal lacunas that can create statelessness. The statutory terms ‘illegal migrant’, ‘foreigner’, and ‘citizen’ cannot be interchangeably applied to a stateless person. The present citizenship determination regime, which places the burden of proof upon the impugned individual and suffers from a well-documented lack of functional independence and procedural safeguards, has actively jeopardized the citizenship status of 1.9 million individuals in Assam in August 2019 (with subsequent deletions and an ongoing Government-led demand for 10-20% re-verification of the 2019 NRC).  

The Indian judiciary’s record on this front has been mixed. The Supreme Court’s judgments in the Sarbananda Sonowal cases (2005 and 2006) decisively laid down the roadmap governing citizenship determination in India. In these cases, the petitioners had impugned the Illegal Migrants (Determination by Tribunal) Act, 1983 (‘IMDT’) and the Foreigners (Tribunals for Assam) Order, 2006, both of which placed the onus upon the state to prove an individual’s foreigner status. The Court agreed and struck them down as unconstitutional. It anchored its reasoning in a broad interpretation of “external aggression” in Article 355 of the Constitution, stating that a “vast and incessant flow of millions” of illegal migrants from Bangladesh into Assam was akin to a “war”, posing a serious existential threat to the economic and social fabric of Assamese society. The Bench cast it as the Central Government’s “foremost duty” to protect its citizens from such aggression; statutes like the IMDT made it far too “cumbersome” to detect and deport foreigners and fulfill this duty, as opposed to the far more “effective” Foreigners Act. Sarbananda Sonowal is still good law; it is the underlying foundation for subsequent Supreme Court decisions, such as the one kick-starting the updation of the NRC and its eventual monitoring of the modalities of the entire NRC exercise

Nevertheless, the Indian Judiciary has occasionally taken cognizance of the tumultuous issue at hand. In each of those occasions where the courts decided to address the said issue, they have consistently observed the insufficiency of domestic laws addressing statelessness and the disastrous consequences of statelessness. These observations have aided them in interpreting the existing domestic statutes liberally so as to prevent the individual in question from being rendered stateless. Interestingly, in these cases, while the courts reasoned their judgments in line with international law on statelessness, they did not make concrete references to it. Four such cases have been outlined below. 

In Gangadhar Yeshwanth Bhandare, the respondent was found to have been a part of a secret Indian governmental mission. His participation in that mission had caused him delay in adhering to the guidelines that had to be followed by those in pre-liberation Portuguese territories who wanted to be considered Indian citizens. It was then alleged that he was not an Indian citizen. The Supreme Court held that the respondent was indeed an Indian citizen since he had renounced his Portuguese nationality already and to hold him to not be an Indian citizen at this stage would render him stateless. Such a consequence was unacceptable for the Court. 

Similarly, in Jan Balaz, the Gujarat High Court interpreted the Indian Citizenship Act, 1955 liberally to prevent the chances of the children born to an Indian surrogate from becoming stateless. The court observed that the children in question would not be able to claim citizenship by birth in Germany (due to the country not recognising surrogacy). It observed that they would have been rendered stateless if they were not accorded Indian citizenship, thereby affirming that they would be eligible for Indian citizenship by birth.  

In Prabhleen Kaur, the petitioner’s nationality was suspected, thereby causing her passport renewal application to be rejected by the relevant authority. The Delhi High Court held that rejecting her application on a mere doubt is manifestly unjust at that stage, as it could leave her stateless, indicating that she can only be ascribed an Indian nationality. 

Once again, in Ramesh Chennamaneni the Telangana High Court pioneeringly held that the power of the Indian government to deprive one’s citizenship under Section 10 of the Act is restricted by several constraints, including the duty of a state to avoid statelessness within its territory. Since in the situation before it, deprivation of citizenship would result in the petitioner being left stateless, the court set aside the committee decision that cancelled his citizenship. 

Apart from circumstances where a petitioner was at the risk of statelessness by virtue of the (in)actions of the Indian state, Indian courts have also acknowledged the need to legally recognize the status of stateless persons existent on Indian territory. By this we mean persons in India who have been rendered stateless by the actions of another state, not India. The Delhi High Court in Sheikh Abdul Aziz (W.P. (Crl.) 1426/2013) was confronted with a petitioner who had been languishing in immigration detention, far beyond his initial sentence under the Foreigners Act. The petitioner’s nationality determination had failed i.e. the Government could not confirm which nationality the man belonged to. The Court here pulled up the Government for its inaction in issuing a stateless certificate to the petitioner, and directed it to do so as the necessary first step towards the petitioner’s overdue release from detention. The stateless certificate, and the subsequent granting of a Long-Term Visa, were essential steps to ensure the petitioner did not become a phantom within the legal and civic community.  

Moreover, our report also argues that stateless certificates cannot and should not operate as obstacles to any application for citizenship. The Indian state has an obligation under international law to prevent and reduce statelessness, and to ensure that individuals can enjoy their right to nationality. Stateless individuals must not be stateless in perpetuity; their continuous residence and community ties in India should entitle them to be naturalised as citizens, per the procedures for naturalization. In the celebrated Chakma case, the Supreme Court created precedent by holding that stateless individuals like the Chakmas in Arunachal Pradesh had a statutory right to be considered for Indian citizenship under Section 5 of the Citizenship Act. Local administrative officials therefore had no grounds for stalling and refusing to forward Chakma individuals’ citizenship applications. The Delhi High Court, in a subsequent case dealing with a plea by a Tibetan individual who was born in India in 1986 to two Tibetan refugees, held that the petitioner’s stateless identity certificate did not bar her from being eligible for Indian citizenship by birth under Section 3(1)(a) of the Citizenship Act, and directed the MEA to process her application expeditiously. 

The pattern of the judiciary utilising international law standards on statelessness continues even in cases where the Court could not come to a decision immediately in favor of the petitioner, as the Patna High Court did recently in Kiran Gupta v State Election Commission. The appellant here was challenging an Election Commission decision that cancelled her Panchayat electoral victory, on the grounds that she was not an Indian citizen when elected. She was a Nepali citizen at birth, and had resided in India and raised her family for 17 years since her marriage to her Indian husband, along with possessing a Voter ID, a PAN card, and property in her name here. She had even terminated her Nepali citizenship in 2016. However, she admitted that she had failed to register for Indian citizenship under Section 5 of the Citizenship Act.  

The Court’s hands were tied: the conferral of Indian citizenship is clearly an Executive function, with the various procedures laid out in the statute. It held that it could not step into the shoes of the Executive and declare her an Indian citizen. Despite this, however, the Court demonstrated sensitivity towards the petitioner’s unusual situation. She was caught in a precarious situation where she possessed neither Indian nor Nepali documents of citizenship. In its final few pages, the Court crucially reiterates the duty upon the Indian state to prevent and reduce statelessness, in spite of signing neither statelessness convention. India has signed and ratified several other human rights treaties with provisions limiting nationality deprivation, such as the ICCPR, CEDAW, ICERD, and CRC. In its operative portion, the Court directed the Government to be mindful of the petitioner’s peculiar circumstances as and when she applies for citizenship. The Patna High Court demonstrates the capacity of courts to step in and affirm the internationally recognised and binding duties to prevent and reduce statelessness.  

At this juncture, it is imperative to note that the aforementioned cases present what we would consider ‘aspirational’ statelessness jurisprudence in the context of India. They are, unfortunately, exceptions rather than the norm: a litany of court decisions follow the overarching rationale of Sarbananda Sonowal and are either unaware of or wholly indifferent to individuals’ right against arbitrary deprivation of citizenship and the duty to prevent statelessness under international law. Foreigners Tribunals (‘FTs’) have consistently been passing orders that are arbitrary and ripe with procedural inadequacies, thereby designating an increasing number of individuals as foreigners. Adverse FT decisions are based on any and every minute clerical error or inconsistencies within their documents. Many such decisions have been upheld on appeal in the Gauhati High Court; as an indicative selection, in Nur Begum v Union of India and Sahera Khatun v Union of India, the burden of proof as per Section 9 of the Foreigners Act was interpreted stringently as one that rests absolutely upon the proceedee. In Jabeda Begum v Union of India, 15 official documents were found to be insufficient to discharge the said burden.  

To conclude, given the polar contrasts within the Indian statelessness jurisprudence, the judiciary’s role will remain incomplete unless accompanied by comprehensive legislative and policy changes. This would require India to not just formally accede to the 1954 and 1961 Conventions, but to also reform its current citizenship framework and explicitly allow for the expedited naturalisation of stateless persons. One hopes that the Executive catches up soon and fortifies its obligation. 

‘History of Citizenship and Migration in South Asia’: A talk by Mr. Manav Kapur

Manav Kapur read law at NALSAR, Hyderabad and New York University, New York. He has previously taught law at NALSAR and Jindal Global Law School. He is presently pursuing his Ph.D. in legal history from Princeton University, New Jersey. This is a transcript of a lecture delivered as part of the lecture series at the Fall 2020 Citizenship and Statelessness Clinic, Jindal Global Law School. You can find the full recording of the lecture here.

In the course of today’s discussion I thought we’d talk about citizenship and Partition. It’s kind of interesting because many of these debates are similar to the debates that have come up over the last year or so, and what I’ve been thinking about in the past few weeks is while much has been made about how the CAA [Citizenship Amendment Act, 2019] marks a break with the liberal conception of citizenship in India and how its explicit privileging of Hindus, Sikhs, Buddhists, Jains, Christians, and Parsis from Afghanistan, Pakistan, and Bangladesh is seen as a break from the earlier regime, I don’t think that’s true. This is definitely not a defence of the CAA, but it’s interesting to see how even, and partly because of the Partition, these issues came up at the very outset of the setting of the terms of citizenship. 

I’m going to start off talking about two distinct questions: first, the ways in which Partition and citizenship were imbricated, both in the popular imagination and in the legal categories – and how did this become a South Asian problem? So what’s interesting also is that Indian debates and Pakistani debates are supposed to be different, but that really wasn’t what was happening. The second question is how did India’s citizenship provisions go from being relatively uncomplicated to ones that ‘received far more attention’ than any other provision (Nehru) by the time the debates end or ‘a headache’, in the words of Ambedkar? 

What had happened after independence was, and what we need to remember is that post-colonial South Asia had changed so much from what it was even six months before independence, that you couldn’t actually assume categories of citizenship qua populations, but that this was actually a produced category that was debated and given sanction, both from the top-up and bottom. So it was a long-term project aimed at turning subjects into citizens and both populations were active participants in this process. 

Now if we go to Seervai, which is one of the basic canonical texts of Indian constitutional law, he says that citizenship is a triangular relationship, it’s a personal bond between state and citizens, whereby citizens bear allegiance to the state and in turn are given full political and other rights. There were two models of citizenship: one is jus soli i.e. the right of anybody who is born in a particular territory to be a citizen of that territory, and the second one is jus sanguinis, which comes from the Latin for the ‘right of blood’ and is linked to questions of nationality and ethnicity, where ethnicity and parentage are key. Now, both [Niraja Gopal] Jayal and [Joya] Chatterji when they’re talking about citizenship in India say that the idea of citizenship in India actually starts off as a jus soli thing. If you look at the first draft of the citizenship provisions in the constitution, and interestingly the first draft was the fundamental rights section, they didn’t even think it was necessary to have a separate chapter on citizenship. This is on April 23 1947: within six months they’ll know that this is not going to be as simple as they think it is. ‘Every person born in the Union or naturalized according to its laws and is subject to the jurisdiction thereof’ (Clause 3, April 23, 1947) was supposed to be an Indian. So this is basically jus soli simpliciter. Of course when this was being talked about this was tempered with some elements of jus sanguinis, because there was this question of what happens to  people who are born in India but whose families don’t live in India, and the converse, what happens to people whose families live abroad but are actually domiciled in India. So then domicile came up, and what is now Article 5 of the Constitution at this time. Article 5 says: 

At the commencement of this Constitution every person who has his domicile in the territory of India and:

(a) who was born in the territory of India; or

(b) either of whose parents was born in the territory of India; or

(c) who has been ordinarily resident in the territory of India for not less than five years preceding such commencement, shall be a citizen of India.

When we look at this, this is pretty simple but this doesn’t really think about what the Partition is going to do to this entire question. 

A small note on domicile: domicile is basically defined as a place where the habitation of a person has been fixed, and from where there’s no intention of moving therefrom. The reason why I’m specifically mentioning domicile is because domicile becomes specifically relevant in the context of Partition, particularly in the context of women and their citizenship. As Joya Chatterji points out, this is also useful because given that the Constitution was being drafted contemporaneously with the Partition and independence, both India and Pakistan, according to her, thought of a jus soli basis of citizenship, which is primarily territorial – so where you’re born, you’re a citizen of that country and after Partition happens, the other country really has no role to play in deciding your rights or lack thereof. But of course, this was predicated on the assumption, which later turned out to be erroneous, that Partition would not result in large-scale migrations. And interestingly, this idea that Partition would not lead to large-scale migrations persists through June, July, and August 1947. In June 1947 for example there’s a story about how Jinnah met a set of prominent Muslim leaders from Delhi and said that well, if Delhi isn’t part of Pakistan – which also wasn’t clear at the time, because the Punjab was to be divided and Delhi was at the border with Punjab—then you’re Indian citizens, and that’s the end of it. 

In order to understand citizenship, I think we have to take the idea of what Vazira [Fazila Yacoobali-] Zamindar calls ‘the Long Partition’ somewhat seriously. The ‘Long Partition’ has been defined, according to her, as ‘the ways in which two postcolonial states’– namely India and Pakistan—‘comprehended, intervened, and “shaped” the colossal displacements of Partition, and in doing so, recalibrating the categories of citizen, state, nation and territory’. All these categories seemed clear in March 1947; all of this was changed in September 1947. All of this resulted in mass migrations that started in 1947 but continued until at least the 1960s on both flanks of the border: on the Eastern flank which is the Bengal, Assam, and the East Bengal border, and the Western flank which stretches all the way from Kashmir up to Gujarat and Sindh. There’s also a note of terminological caution I want to make over here because the terms that were used were ‘refugee’ and ‘migrant’, but the idea of a ‘refugee’ has to be distinguished from what we understand of a refugee now as a stateless person. At this point of time the term ‘refugee’ in India referred to those who moved to India from Pakistan, and a ‘migrant’ was seen as somebody who moved from India to Pakistan. Now importantly they were called refugees, but they weren’t refugees like stateless people, they definitely had a state allegiance and that allegiance was acknowledged by the state they were moving to, it was just that their domicile and the state that they wanted to be part of did not at that particular point intersect.  

Two dates are very significant: 1 March 1947 and 19 July 1948, and we will see this when we discuss Articles 6 and 7 of the Constitution. 1 March 1947 was a significant date because it was the cut-off date for Partition violence, or so the Indian government thought, because violence started in Rawalpindi on 3 March and continued in Punjab throughout this time. And because the Eastern border wasn’t considered – as we shall see throughout this discussion, the Eastern border was considered peripheral to questions of citizenship in the ways that were fundamental to the determination of citizenship law at the time when the Constitution was being drafted. So the violence of Direct Action Day on Noakhali and stuff did not feature. 

Article 6 is something that we should spend a little bit of time on, because it talks of the rights of citizenship of certain persons who have migrated to India from Pakistan. It has a non-obstante clause at the beginning: ‘notwithstanding anything contained in Article 5’ – which is basically a jus soli conception of citizenship, with a little bit of jus sanguinis, about parents, but this is a departure from that –‘a person who had migrated to the territory of India from the territory now included in Pakistan shall be deemed to be a citizen of India at the commencement of this Constitution if he and either of his parents or any of his grandparents was born in India as defined in the Government of India Act, 1935 (as originally enacted), and’—even his little bit about the Government of India Act is significant, because before the Government of India Act, India included Burma and Aden, so both of them were excised from the idea of India, and that was particularly significant because Burma had a huge population of Indians, and Joya Chatterji does talk about that in questions around Indian nationals vs. citizens – ‘In the case where such person has so migrated before 19 July 1948…has been registered as a citizen of India by an officer appointed in that behalf by the Government….’ The important thing to note here – this is about 11 months after Partition—the very fact the Government decided to use this date [19 July 1948] meant that the Government thought that Partition migration had more or less in the ordinary course of events ended; migration after the 19th of July 1948 was seen as exceptional, and this was only true for the Western frontier and only for the provinces of West Punjab and the North-West Frontier Province. Hindus from Sindh continued to move to India until the 50s, and also from Balochistan. 

We should talk about Article 7 as well, which is another exception to the jus soli conception. This is the most controversial clause: called obnoxious by its detractors and obligatory by those who supported it, and it’s interesting even though religion is not explicitly mentioned, debates around both Article 6 and Article 7 make it very clear who is contemplated under these provisions and who isn’t, and that is largely based on religion, and in that category you see Muslims as one category and non-Muslims as another. Article 7 reads, beginning with a notwithstanding clause:

a person who has after the first day of March, 1947, migrated from the territory of India to the territory now included in Pakistan shall not be deemed to be a citizen of India:

Provided that nothing in this article shall apply to a person who, after having so migrated to the territory now included in Pakistan, has returned to the territory of India under a permit for resettlement or permanent return issued by or under the authority of any law and every such person shall for the purposes of clause (b) of article 6 be deemed to have migrated to the territory of India after the nineteenth day of July, 1948.

So basically, the person should have a permit for resettlement or permanent return and then be registered as a citizen of India. At first, this doesn’t seem like a particularly problematic position. Of course, it says if you leave in March 1947 you lose Indian citizenship, but you have a way of getting back – just register etc. It seems clear, but it isn’t. 

Now let’s get to the meat of what the problem was with the way in which these three provisions were drafted. Three questions come up: one is India’s perceived sole responsibility for Pakistani Hindus and Sikhs—the assumption is (and this comes out very clearly in the Constituent Assembly debates across party lines) that Pakistani Hindus and Sikhs don’t have any other place in the world to go to but India. There is also a related suspicion of Muslim migration into India, both the return of people who had gone to Pakistan and the movement of other Muslims to India. And this is all undergirded by the hard economics of rehabilitation – or what I would call the ‘costs’ of citizenship. 

The question of Hindus and Sikhs as fundamentally Indian was a question that arose out of Partition, and out of the belief among many members of the Constituent Assembly Debates that the Partition was not a territorial division but also an excision of a part of the Motherland. Because of this, the idea was that any Hindus and Sikhs in Pakistan (which at the time included Bangladesh) were seen as the responsibility of India. P. R. Deshmukh actually very clearly and very strongly articulates this in 1949:

By the mere fact that he is a Hindu or a Sikh, he should get Indian citizenship because it is this one circumstance that makes him disliked by others. But we are a secular State and do not want to recognise the fact that every Hindu or Sikh in any part of the world should have a home of his own. We are not debarring others from getting citizenship here. We merely say that we have no other country to look for acquiring citizenship rights and therefore we the Hindus and the Sikhs, so long as we follow the respective religions, should have the right of citizenship in India and should be entitled to retain such citizenship so long as we acquire no other.

This is very similar to questions around the way in which the CAA is thought of presently, the idea of non-Muslims as being discriminated against in other parts of the subcontinent, and that Indian Muslims are not discriminated against. This idea of Pakistani Hindus and Sikhs as a lost limb comes up time and again in the Constitution. It’s something that Nehru himself mentions in his tryst with destiny speech, that we ‘feel for those who have been cut away from us in this unnatural division and we will always have a responsibility for them’.

But now what was happening, as Joya Chatterji points out, is that in the period 1947 to 1950 there was this very very complicated relationship that minorities had with the governments of the opposite dominion. When Partition happened by September 1947, the High Commissioners of the other dominion had taken charge of minority camps pending their movement, which again was ensured through military evacuations carried out by soldiers of the other dominion itself. One interesting aspect of this is that the first Pakistani High Commission in India was located in the barracks of the Sher Shah Suri mess, which is now the site of the Delhi High Court. Now of course it’s impossible for any Pakistani citizen to enter any cantonment zone, but because of the Partition, because of the responsibility both countries took over for its minorities, and because of the military escorts that they had to provide, the first Pakistani High Commission was located within an army mess in India. Also the Pakistani High Commission in Delhi and the Indian High Commission in Karachi were simultaneously organizing water, food, and medicines to camps – there are these long letters that go from the Indian government to the Pakistani High Commissioner in September 1947 about the fact that the Lal Quila camp only had two functional toilets for 40000 people. So there is that sense of responsibility for people just after Partition.

Now interestingly, what happened is that the moment you look at the idea of people moving to Pakistan, there’s this question of what the scope of migration was, or what the intent behind Partition migration was. So in the Constituent Assembly, and in a lot of writing around Partition in India, you see the idea of Muslims moving to Pakistan as part of a deliberate desire to move. So it is a conscious, well thought out decision to leave India. As Jaspat Roy Kapoor, Constituent Assembly member whose family had migrated from West Punjab to UP says: ‘Once a person has migrated to Pakistan and transferred his loyalty from India to Pakistan, his migration is complete. He has made up his mind at the time to kick this country and let it go to his own fate and to go to Pakistan and make it a prosperous country’. On the other hand, when the question comes about Hindus who continue to live in Pakistan till the winter of 1947, Justice Mahajan says something completely different. He says that: ‘In October or November 1947, men’s [sic] minds were in a state of flux. Nobody thought that when he was leaving Pakistan for India or vice-versa that he was forever abandoning the place of his ancestors’ (Mahajan J. in Central Bank v Ram Narain (1955)). Which obviously makes sense, because in 1947 there was no clarity on what these migrations meant, the only thing that happened was that in the Punjab both Governments had agreed to transfer populations pending a settlement of the situation. But the situation was never settled in any way other than the vast majority of people not being able to come back. But this distinction between the idea of Muslims going to Pakistan going with a form of malice or forethought versus people coming into India as refugees who had no other option, having lost everything, persisted through the course of these debates and is significant in the way Article 7 was both drafted and operated. 

Now the history behind Article 7 – we’ve seen that this led to a permit system for settlements or permanent return to come back to India. This seems pretty straightforward but isn’t –this is because in early 1948, after Gandhiji’s fast in Delhi and his subsequent death, and the Government’s crackdown on RSS [Rashtriya Swayamsevak Sangh] and anti-Muslim violence in much of North India, a set of people who’d gone to Pakistan started to come back. Now the numbers weren’t very huge – this table on CID Enumeration of Muslim Movements shows that the number of people who came back in  toto were about 12 to 15000. These numbers are not huge, but the way in which they were seen by the population in Delhi, by a lot of the Government, was as this one-way traffic that was coming from Pakistan of people trying to come back and take over their houses. This almost medical terminology of influx of people moving in, of this fear of contamination and infection, is what led to a permit system being put in place. Initially, from August 1947 to July 1948 there was no bar on Indians moving to Pakistan and vice-versa, in fact one of the conditions of Partition had been that there would be no restriction placed on people moving: to the extent that Nehru’s first visit to Pakistan was supposed to be 1949, but throughout the winter of 1947 Nehru was constantly going to Lahore for meetings with regard to people who were moving, and Liaquat and Jinnah were constantly coming to Delhi, and that wasn’t even considered foreign travel. 

Now a permit for permanent resettlement was one of the hardest ones to get. The permit system basically allowed permits to be given in three circumstances: for transiting, for visits and meeting divided families, and for permanent resettlement. This permit for resettlement was almost impossible to get, only 1200 got it in the first year of its installation. Again, to get the permit required a background check, a family check, and any link to the Muslim League before Partition meant that you wouldn’t get the permit. What’s interesting is not that you’d get the permit so sparingly, but the fears it aroused. The assumption was that when Muslims were coming back to India, people who had already left for Pakistan were coming back, they were coming back either as a fifth column that was attempting to destroy India from within, or coming back to take over their property. 

Now why would taking over the property be a problem? Because of the whole way in which the evacuee property regime had started to function. Now the evacuee property norms have in a lot of scholarship been described as ‘brutal’ laws, as ‘exceptional’ laws, as deeply complex laws. Their complexity comes because they were serving two contradictory purposes. In the weeks after Partition, in early 1947 as populations were on the move in Punjab, both governments came up with a set of norms by which they’d take over the property of those who’d left and hold it in trust for them until they came back. So the migrants, the people leaving were recognized as the sole owners of the property they’d left behind, but in order to protect this property, and to prevent it from being alienated in unauthorized ways, the Government would take it over and hold it in trust. But there were 2-3 things that happened at the same time. This was also harvest season, the Punjab was a very fertile land and food supplies in both countries were in a state of flux, and refugees needed to be resettled on these lands. So while refugees were resettled, the assumption was that migrants continued to be sole owners of this property but pending their coming back or the settlement of the question of compensation, refugees would be allowed to live on these lands. This was also happening because a lot of refugees, out of desperation on both sides of the border, were forcing their ways into these houses. So now evacuee property laws were serving two contradictory purposes: firstly they were safeguarding the property of those who had migrated until they returned or until an inter-governmental solution could be found (India was rooting for an inter-governmental solution; Pakistan, because the volume of property was more in Pakistan, was rooting for person-to-person exchange); and simultaneously all of this property had gone in a compensation pool to rehabilitate refugees who were living on this. 

Now especially in India, because the amount of property which Muslims had left was much lesser than property Hindus and Sikhs had left when they came to India, the whole question of Muslims coming back was seen as taking away what the already marginalized Hindus and Sikhs who came from Pakistan were going to get. So therefore it became almost impossible for the Government to actually be seen to be giving permits to people, only a few thousand were likely to return. When this was debated in the context of Article 7 of the Constitution, Nehru made a very strong point about how we can’t discriminate between Muslims who have chosen to leave in situations that were not of their volition. But he also says – and this was the way in which he tries to assuage the ‘costs’ of Muslims coming back – that only a few thousand are likely to return, and they’re ensuring  that the procedure for getting  the permit has been made extremely difficult. Now, because this was made so difficult—and not only was it made difficult, after 1951 and the Liaquat-Nehru pact the Government actually came up with a law which said that even if people are given permits for resettlement, this resettlement will not mean their property will no longer be evacuee property. So even if they come back, they are not going to get their property back. Their property is going to go into the compensation pool until an inter-governmental solution comes up; as it happens, an inter-governmental solution never came up, and the Government nationalized this property in 1957 and redistributed it. 

As we can see, what is actually happening in the period between 1947 and 1950 is that the Governments of both dominions are taking a very significant interest in the lives of minorities on both sides. The Liaquat-Nehru pact – and Amit Shah himself when he spoke of the CAA said that the Liaquat-Nehru pact is an example of this – but the Liaquat-Nehru pact is the point when this starts to break. Contrary to the discussions around CAA which state that the Liaquat-Nehru pact situated responsibility on the ‘other’ dominion, the pact actually did the opposite. A little bit of background – this pact comes in response to violence in Bengal. Throughout this time there has been very little sustained violence that happens in Bengal: in 1948 migration slowed down in Bengal, there were about 8 lakh people who moved across the border, as opposed to the Western border where 75 lakh people have moved, and this movement is continuing. In late 1949, however, there was rioting that started in East Bengal, across East Bengal, and spread to India as well. This leads to about a million and a half people moving, and the fears of a migration of the kind that happened in the West are what lead to both Nehru and Liaquat Ali Khan coming together and specifically saying that minority rights are the responsibility of their own governments: 

The Government of India and Pakistan solemnly agree that each share ensure to the minorities throughout their territory complete equality of citizenship irrespective of religion..full security in respect of life, culture, property and personal honour.

Both governments wish to emphasise that the allegiance and loyalty of the minorities is to the states to which they are citizens and that it is to the Governments of their own state that they should look for the redress of their grievances.

Now on the Eastern frontier the bulk of migration happens after the 1947-1948 cutoff dates. Migration here starts in 1946, there’s some in 1947, the situation stabilizes by late 1948, then in early 1950 all of this starts again. Economics was not as important here: since there was no exchange of populations, evacuee property norms in Bengal were very different from evacuee property norms in the rest of the country. Evacuee property in Bengal continued to be property held in trust by the state for migrants who were presumed to return, and this was not distributed to refugees. The Permit system did NOT apply in the East: the free movement of minorities was supposed to ensure a feeling of security, and as a result of that you could cross the border without a permit. The very nature of the border also, because it wasn’t properly demarcated, meant there was little policing of migrants. 

But even in Bengal, particularly in Assam, you see the refugee-migrant difference coming up in the Immigrants (Expulsion from Assam) Bill, 1950 which was enacted two months after the Constitution came into force – this was actually initially called the ‘Undesirable Immigrants (Expulsion from Assam) Bill’, the name was changed after a very complicated debate in the Provisional Parliament. Now we can see in this Bill that the Central Government has a lot of untrammelled power to order expulsion of certain immigrants:

If the Central Government is of opinion that any person or class of persons, having been ordinarily resident in any place outside India, has or have, whether before or after the commencement of this Act, come into Assam and that the stay of such person or class of persons in Assam is detrimental to the interests of the general public of India or of any section thereof or of any Scheduled Tribe in Assam, the Central Government may by order— 

(a) direct such person or class of persons to remove himself or themselves from India or Assam within such time and by such route as may be specified in the order; and 

(b) give such further directions in regard to his or their removal from India or Assam as it may consider necessary or expedient: 

Provided that nothing in this section shall apply to any person who on account of civil disturbances or the fear of such disturbances in any area now forming part of Pakistan has been displaced from or has left his place of residence in such area and who has been subsequently residing in Assam.’

This is to do with migrants, and the proviso very clearly says that this doesn’t apply to refugees. What we should think about is how similar this language and this provision is to the raison d’être of the CAA 2019. When this was discussed in the Provisional Parliament, the religious difference was very clear. It was very clear for everybody talking about the bill that reference to outside of India was only construed as Pakistan, and that too East Bengal. There were two lakh Nepali people working in tea gardens in Assam, but because they were told they were in language and religion akin to our people, this would not apply to them. That’s interesting because while Bengali and Assamese are undoubtedly different languages, Bengali, Assamese, and Nepali are also different languages. So it’s not a question of language but merely a question of religion. Now this had again emerged out of a similar fear as the return of migrants across the western border, and this will come out of this fear of Muslim migration in Assam that preceded the Partition of India, and the movement of lakhs of ‘undesirable immigrants’ (Sardar B. S. Mann, from West Punjab) who are likely to be a source of ‘separatism…with the old League mentality and outlook’ (Biswanath Das, Parliamentary Debates 08.02.1950). And these people, Muslim Bengalis, are viewed as coming with a ‘careful and calculated intent…to a country over which they have not the least claim after Partition’. Look at the language here – now ‘all those who emigrated on account of civil disturbances, are only to be construed as non-Muslims’, as ‘those who have no place in Pakistan and are thrown out mercilessly’, again this trope of the violent Pakistani populace against Hindus and Sikhs.

In conclusion, I’m going to summarize what the main argument of both the pieces we discussed were. The first, by Niraja Jayal, is that the initial definition of citizenship has been understood to be predicated on jus soli with domicile and descent complementing rather than undermining citizenship based on birth in BOTH India and Pakistan, but that has changed over time to take more elements of jus sanguinis. Joya Chatterji takes a broader picture, looks at the Indian diaspora, and argues that not only did India and Pakistan move away from jus soli, they also moved away from conventional jus sanguinis, to prevent undesirables who formed part of the diaspora from returning to India. What I actually think is significant over here is the idea that there hasn’t been a movement towards jus sanguinis as such but there’s always been this underlying current. I wanted to think about what this means in the context of citizenship in India, and what this means in the context of constitutional guarantees of equal citizenship and secularism.

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 https://www.huffingtonpost.in/2018/08/07/lakhs-of-the-most-marginalised-women-in-assam-s-river-islands-risk-becoming-stateless_a_23497234/

[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, https://www.india-seminar.com/2002/510/510%20subir%20bhaumik.htm, 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, https://eparlib.nic.in/bitstream/123456789/760070/1/cald_01_12-12-1947.pdf#search=null%201947

[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), https://archive.org/details/in.gazette.e.1948.41/page/n1/mode/2up/search/Influx+from+Pakistan+(Control+)+Ordinance?q=Influx+from+Pakistan+%28Control+%29+Ordinance. This was later superseded by the Ordinance XXXIV of 1948, with effect from 10th November 1948, https://archive.org/details/in.gazette.e.1948.148/mode/2up/search/%22Influx+from+Pakistan%22?q=%22Influx+from+Pakistan%22 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, https://archive.org/details/in.gazette.e.1948.84/mode/1up/search/Influx+from+Pakistan+(Control+)+Ordinance?q=Influx+from+Pakistan+%28Control+%29+Ordinance (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 https://indianexpress.com/article/opinion/assam-citizenship-amendment-bill-protests-national-register-of-citizens-citizenship-immigrants-sarbanand-sonowal-5236229/; 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,  https://peacemaker.un.org/sites/peacemaker.un.org/files/IN_850815_Assam%20Accord.pdf.

[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).