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).

Announcing the Release of Securing Citizenship

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

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

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

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

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

The student authors of this report are:

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

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

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

To foster engagement with the report, we invite you to attend the Securing Citizenship Webinar, organised in collaboration with Centre for Public Interest Law, JGLS. Our panelists include Amal de Chickera (Co-Founder & Co-Director, Institute on Statelessness & Inclusion), Sujata Ramachandran (Research Associate, Balsille School of International Affairs, Waterloo) and Oliullah Laskar (Advocate, Gauhati HC). Our moderator will be Mohsin Alam Bhat (Executive Director, CPIL). Please register at https://bit.ly/3lPXPOl to receive the link and password for the webinar.

Aper Ali or Afer Ali: The Foreigners Tribunal and ‘Inconsistencies’

This is a guest post by Douglas McDonald-Norman. Douglas McDonald-Norman is a barrister in Sydney, Australia. He predominantly practices in migration and administrative law. He also writes for Law and Other Things.

In their report Designed to Exclude, Amnesty International have recorded the experiences of a man named Abu Bakkar Siddiqui. In 2016, he appeared before a Foreigners Tribunal in Jorhat, Assam.

In his deposition, Abu Bakkar said that his grandfather’s name was Aper Ali Sheikh. To prove that his ancestors had been in India before 1971, Abu Bakkar submitted 1966 and 1970 voter lists – in which the name of his grandfather was written as ‘Afer Ali Sheikh’.

The Tribunal found that Abu Bakkar could not prove that his grandfather Aper Ali Sheikh had ever existed. It rejected his explanation that Aper Ali Sheikh and Afer Ali Sheikh were the same person, saying that this explanation had been made ‘too late in the day’. His attempt to seek review in the Gauhati High Court was dismissed.

This is absurd. But it is not an isolated or uncommon incident. As Amnesty International have reported, in many cases Foreigners Tribunals have rejected applicants’ claims to be who they say they are, or have rejected their accounts of their lives and the lives of their families, based on minor or easily explicable inconsistencies – spelling, dates, typographical errors.

These practices have international parallels. Around the world, courts and tribunals engaged in ‘refugee status determination’ (that is, the process of working out if asylum seekers are entitled to protection as refugees) have frequently relied on ‘inconsistencies’ of these kinds to find that asylum seekers are not telling the truth about who they are or why they claim to fear harm if returned to their countries of origin. Some of these inconsistencies may be explained by fear, shame or inevitable loss of detailed recollection over time (or because of trauma). Other inconsistencies (particularly in documents) may be explained by the context from which an asylum seeker has fled; bureaucracies in their country of origin may have flawed record-keeping practices, or the asylum seeker may not be able to access any corroborative documents because those documents are held by precisely the people they fear will persecute them.

In Foreigners Tribunals, as in refugee status determination, we see decisions being made based upon dubious, harsh or even absurd reasoning, particularly in relation to inconsistencies or errors in applicants’ narratives or documents. How can we use legal frameworks, advocacy and review to challenge these practices?

People stripped of nationality by Foreigners Tribunals can seek review in the Gauhati High Court or the Supreme Court of India. But this review is on limited terms. As the Gauhati High Court explained in State of Assam v Moslem Mondal, a petitioner seeking writs of certiorari to quash a decision of the Foreigners Tribunal must establish that the Tribunal’s decision is affected by jurisdictional error.

The High Court’s judgment in Moslem Mondal takes the concept of ‘jurisdictional error’ further than that in some other common law nations. Justice B. P. Katakey noted that jurisdictional error may arise where reasons for a given exercise of power are ‘inconsistent, unintelligible or inadequate’, in addition to the standard, more orthodox grounds of jurisdictional error – ‘application of a wrong legal test to the facts found, taking irrelevant consideration into account and failing to take relevant consideration into account, and wrongful admission or exclusion of evidence as well as arriving at a conclusion without any supporting evidence’. But the relevant test in the Gauhati High Court is still a question of legal error – mere unfairness or harshness do not suffice, and it is not enough that the Court could (or even would) have made a different decision if it were sitting in the place of the original decision-maker.

How, then, can we challenge the use of trivial or absurd inconsistencies within this framework of jurisdictional error?

In Australia, judicial review of migration decisions is only available where the purported decision is affected by jurisdictional error (that is, that it is beyond the power of the agency which purportedly made the decision). Jurisdictional error may arise on equivalent or similar grounds to those identified by Justice Katakey – for example, failure to consider relevant considerations, findings based on no evidence or misapplication of a relevant legal test. Equivalent to India’s basis for review of ‘inconsistent, unintelligible or inadequate’ reasoning, decisions in Australia may be challenged because they rely on unreasonable, illogical or irrational findings – but this is a high threshold to clear. It requires more than merely establishing that a different finding could have been made; it must be established that the finding, or the exercise of power, is one which no reasonable decision-maker could have made.

But in Australia, we can see examples by which arbitrary or harsh decision-making practices can be restrained through the creative use of traditional grounds of judicial review. Where, for example, a decision-maker relies on ‘unwarranted assumptions… as to matters relevant to the formation of a view on the credibility of a corroborative witness, the decision-maker may constructively fail to consider relevant considerations arising from the material before it (There are parallels, in this regard, with reasoning in Moslem Mondal itself – in which Justice Katakey found that in one of the decisions challenged ‘[t]he learned Tribunal did not appreciate the evidence on record in its proper perspective, thereby refusing to take into consideration the relevant piece of evidence’). Similar reliance on ‘unwarranted assumptions’ may mean that the decision is illogical or irrational, or that a decision-maker has made findings with no basis in the evidence before it.

The ‘unwarranted assumptions’ argument is not a new basis for judicial review or jurisdictional error. It is merely a different way of understanding and applying traditional grounds – failure to have regard to relevant considerations, making findings on the basis of no evidence, and ‘unreasonableness’.

Advocates and activists working to reform the Foreigners Tribunal can similarly reshape traditional grounds of judicial review to restrain abuses of the Tribunals’ fact-finding function, even with the limited tools left available to them by Moslem Mondal. When a Tribunal relies upon an absurd or exceptionally minor inconsistency (like a typographical error on a document), even the traditional grounds of judicial review may permit the Court to question whether there is a logical or probative basis for any adverse finding made as a result, or to question whether an ‘unfounded assumption’ that the document would invariably have been accurate as transcribed prevented the Tribunal from properly having regard to the evidence before it. When a Tribunal relies on a difference between general and specific accounts of the same thing, the Court may question whether the Tribunal’s misunderstanding or mischaracterisation of the evidence has led to a constructive failure to consider that evidence, or a failure to consider necessary questions arising from that evidence. These may seem like frail instruments to reform broader abusive or unjust practices by the Foreigners Tribunals, and may seem entirely inadequate to address the fundamental injustice at the heart of that system. But, over time, these grounds of review can be used to set clear limits on how the Tribunals function and how they make decisions. These limits to the fact-finding powers of the Tribunals can protect vulnerable individuals from abusive and arbitrary exercises of power.

Interview with Prof. Niraja Gopal Jayal

Niraja Gopal Jayal is Professor at the Centre for the Study of Law and Governance, Jawaharlal Nehru University, New Delhi and Centennial Professor at the Department of Gender Studies, London School of Economics, London.  Her scholarship has focussed on citizenship, democracy, and governance. Her book Citizenship and Its Discontents (Harvard University Press, 2013) won the Ananda Kentish Coomaraswamy Prize of the Association of Asian Studies in 2015. Her other books include Representing India: Ethnic Diversity and the Governance of Public Institutions (Palgrave Macmillan, 2006) and Democracy and the State: Welfare, Secularism and Development in Contemporary India (Oxford University Press, 2019). She has also edited Re-Forming India: the Nation Today (Penguin Random House, 2019) and Democracy in India (Oxford University Press, 2009), and has co-edited The Oxford Companion to Politics in India (Oxford University Press, 2010); Local Governance in India: Decentralization and Beyond (Oxford University Press, 2005); and Interrogating Social Capital: The Indian Experience (Sage, 2004), among others. She has held visiting appointments at King’s College, London; EHESS, Paris; Princeton University; University of Melbourne; and University of New South Wales.  In 2009, she delivered the Radhakrishnan Memorial Lecture at All Souls College, University of Oxford. Some of her recent articles and op-eds can be found here and here.

This interview was conducted over email and has been edited for length. 

Arunima Nair: Current arguments around citizenship have frequently highlighted a shift: that Indian laws have moved from citizenship based on birth in Indian territory (jus soli), to citizenship based on descent (jus sanguinis). In your book Citizenship and Its Discontents, you argue that India’s trajectory is not quite this linear. Could you elaborate on this?

Niraja Gopal Jayal: That was an argument about the historical trajectory of the idea of citizenship. The questioning of the linear narrative in my book (which, by the way, was published in 2013, when I did not anticipate that the CAA would gather such momentum in just a few years) was an attempt to jog historical memory and remind ourselves that jus soli was such an embattled idea even in the moment of constitution-making. Though it was eventually endorsed by the Constituent Assembly, Dr. Ambedkar alluded to how contentious it had been when he described the drafting of it as a “headache.” Subsequently, the Citizenship Act 1955 expressed this unambiguously, and the process of attrition only began in 1986 with the amendment to give effect to the Assam Accord of 1985. So we saw, first, the emergence of a conditional jus soli – citizenship by birth available unconditionally, and regardless of their parentage, only to those born before 1987, while a person born in India between 1987 and 2003 was required to have one parent who is an Indian citizen. From 2004, this became even more restrictive, making ineligible for citizenship by birth a person born in India who has one parent who is an “illegal migrant” at the time of his or her birth. The debates around these amendments articulate the very prejudices and arguments heard for a restrictive conception of citizenship in the Constituent Assembly. They are a sign of the constitutional settlement having been less stable than we assumed it to be.

AN: Are ‘refugee’ and ‘migrant’ used interchangeably in Indian politics? What are the histories of these words and their usage in India? 

NGJ: Before I explain the distinction, please note that the word migrant in India has in popular parlance (at least till before the migrant workers’ crisis in the shadow of the pandemic) been prefixed by the word ‘illegal.’ It is in the Citizenship Amendment Act 2003 – which came into effect in 2004 – that the term “illegal migrant” entered the law, signifying someone who has entered India without legal authorisation or stayed on without it. It was a dog-whistle reference to Bangladeshis in Assam and the northeast more generally. 

Technically, refugees are compelled to flee their country and seek refuge in another land, due to political or religious or other kinds of persecution, and this movement is involuntary. Migrants, on the other hand, are understood to move voluntarily, more often than not for economic reasons. Such movement is also presumed to be legal because migrants typically have visas or (depending on which part of the world we are speaking about) guest worker permits. At the time of the Partition, these two categories acquired religious and normative overtones, such that Hindus and Sikhs coming into India from their homes in what had now become Pakistan were referred to as refugees, deserving of succour. On the other hand, Muslims who left their homes in India for the newly created state of Pakistan, but chose to return to India to reclaim their lives and livelihoods after the violence had abated, were termed migrants, deemed to be undeserving of the same consideration because they had after all chosen to go to Pakistan in the first instance. 

This offers an interesting contrast with the contemporary Hindutva discourse which defines both countries in terms of religious identity, such that Pakistan is an Islamic nation while India is a Hindu nation rather than a secular multi-religious one. The construction of India as a nation in which its Hindu citizens are by definition privileged, was therefore not the dominant understanding of India in 1947-48, but has acquired currency in recent times with the politicisation of religion and religious identity in our polity.

The political usage of ‘illegal migrant’ in India has thus made explicit that encoded identity of migrant = Muslim, while refugee = Hindu. This usage is consistent with the long history of these terms in India. Note that refugees from Tibet or indeed Tamils from Sri Lanka are still referred to as refugees, fleeing persecution. The CAA, in a sense, imports this distinction into its use of religious categories. It implies that Muslims cannot, by definition, be refugees because they cannot be persecuted in the three Muslim-majority countries they come from. 

AN: The Citizenship Amendment Act, 2019 requires applicants to prove that they belong to one (or more) of the six enumerated communities (Buddhists, Christians, Hindus, Jains, Parsis, Sikhs) from one of the three neighbouring countries (Afghanistan, Bangladesh, Pakistan), but the rules for the Act are yet to be notified, and it is unclear how an applicant is supposed to prove this. However, is this the first time that the religion of applicants was explicitly referenced as a criteria for obtaining Indian citizenship? How can the administration determine religion in such cases? Also, how did the local administration determine the religion of migrants to be registered?

NGJ: The Ministry of Home Affairs has reportedly sought more time to frame the rules. The text of the Amendment Act certainly does not mention any requirement for proving religious affiliation, nor does it require the experience of persecution to be proved. In fact, one of the objections of the Intelligence Bureau (as recorded in the report of the Joint Parliamentary Committee on the CAB) was precisely this: that these provisions could be misused by “infiltrators” from neighbouring countries, presumably because they could claim to belong to one or other of these religions in order to gain entry for purposes such as espionage. It is baffling how functionaries in the local administration could determine anybody’s religious identity.

While this is the first time that religion has been explicitly mentioned as a criterion for determining citizenship, religion did find mention in the 2004 Rules of the Citizenship Act, which delegated limited duration powers to the District Collectors of border districts in Rajasthan and Gujarat to register people most of whom had come in from Pakistan after 1992, on Pakistani passports and valid visas that they had outstayed. The Rules invoke religion explicitly, as they refer to these people not as migrants, much less as ‘illegal migrants,’ but as ‘minority Hindus with Pakistan citizenship who have migrated to India….with the intention of permanently settling down in India…’ 

AN: One of the disproportionate effects of our current citizenship law is that children born after 2004 are particularly at risk of having their citizenship questioned in any verification exercise. This is because, per the Citizenship Act, any person born in India after 2004 is an Indian citizen by birth only if one parent is an Indian citizen AND the other parent is not an ‘illegal immigrant’. One example of how this has played out in practice is the NRC exercise in Assam: a child, who has a parent who’s either been declared a ‘doubtful voter’ or whose case is pending before a Foreigners Tribunal, will be excluded from the NRC on the basis of the Act. Is this creating a problem of inherited statelessness?

NGJ: Indeed it is. This is affecting people whose parent(s) may have come in 40 years ago, even likely have voted in elections. These individuals born after 2004 (who would today be 16 years of age or less) have known no other home but this. It is decidedly unjust to render them stateless and amounts to punishing them for something they had no control over – the place of their birth. The predicament of infants and children in the Assam NRC is deeply worrying.

AN: How have our citizenship laws historically grappled with (if they have at all) the statuses of women, Dalits, Adivasis, and other socially vulnerable groups?  Documentation is very  central to citizenship determination. But, as has been repeatedly pointed out, there’s a mismatch between the expectations of a formal legal regime and the sociological reality of Indians—particularly the poor, illiterate, and marginalised, who simply do not possess and cannot access any documents. And it isn’t just a question of the number and types of official documents—but the veracity of official documents themselves is constantly questioned, constantly challenged. Why is there such a pervasive suspicion of documents? Is this particularly acute in border states? Have government policies or judicial bodies taken note of this sociological reality in the context of citizenship?

NGJ: Let me phrase my response in terms of, first, a distinction between formal and substantive citizenship. The poor, minorities, Dalits, Adivasis and women belonging to all these groups enjoy the formal status of citizenship – but, for these groups, substantive citizenship, the ability to meaningfully exercise rights, is far from realized. 

Given the marginalisation and vulnerability of these groups, given the convergence between poverty and the absence of documents, and given the histories of prejudice in our society, these groups, more than others, will – through the instruments of the NRC/NPR – be pulled backwards, perhaps even deprived of the formal legal status of citizenship. For them, this would be a move from the substantively second-class citizenship they hold to formal legal second-class citizenship or worse; from an enfranchised status to potential disenfranchisement. This, if nothing else, should disturb our conscience.

Secondly, you are quite right about documents. It is a fact that the poor and disadvantaged are also historically the most poorly documented. The veracity of such documents as they possess is frequently called into question – in one case, the Bombay High Court deemed somebody’s passport as having been acquired by fraudulent means. As we saw very recently, poor people in Assam suffer the ravages of floods almost every year, and papers are regularly lost in such natural calamities. The state’s obsession with the requirement of paper as proof is one side of the coin; its habitual distrust of the authenticity of the document offered is the other.  

AN: Discussions around citizenship have primarily circled around the state’s perspective, and the state’s sovereign prerogative, in granting citizenship—which has meant debating laws, rules, and whether these laws and rules are fair or not. What does Indian citizenship mean to the various communities who are in line to receive it? What are their hopes and expectations from being conferred Indian citizenship? 

NGJ: My interviews in Rajasthan with communities – mostly Dalit and Adivasi – who had migrated from Pakistan suggests that to them Indian citizenship means just the basic paperwork to be able to get employment, send their children to school and college, access the public distribution system, get a patta for land, get an electricity connection and so forth. It had little or nothing to do with any sense of affective belonging, much less any feeling of religious identity. Those who could have got it in the citizenship camps organised by the administration often could not afford it. Even after the CAA, we will not know till the Rules are framed as to whether this fast-track citizenship will come with a hefty price tag or not.

AN: You have written that even as the years between the Partition and the present increase, we seem to be reopening, and not reconciling, the wounds and ‘divisive legacy’ of that epochal event. How do you think this affects our relationship with our neighbours? Can an ‘internal matter’ dealing with foreigners and citizens be resolved without international cooperation? 

NGJ: The CAA has already made manifest the unhappiness of our neighbours. The threat of deporting ‘illegal migrants’ to Bangladesh, led to a statement from the High Commissioner of Bangladesh in India to the effect that people from his country would prefer to swim to Italy in search of employment than to cross over to India. In fact, there is speculation that, given the impressive economic indicators of Bangladesh today, there may be less migration from Bangladesh to India now than in the reverse direction. Already, with 1.1 million illegal Indian immigrants, Bangladesh is the fifth largest sender of remittances to India. The High Commissioner of India in Bangladesh has reportedly not been given an appointment with Sheikh Hasina for four months. These incidents suggest some deterioration in a hitherto robust bilateral relationship. Afghanistan too was hurt by the insinuation that Hindus and Sikhs are persecuted in their country. In fact, some instances of persecution after the passage of the CAA have come to light. It is well known that Pakistan’s treatment of its minorities is far from good, and that untouchability is also practised against its Dalit citizens, but present day India is scarcely in a position to lecture others on the question of how minorities should be treated.

Arunima Nair is a Core Team Member at Parichay. She is a second-year LLB student at Jindal Global Law School.