• CAA and laws in the making in Northeast India

    Prasenjit Biswas

    January 21, 2020

    Image Courtesy: The Outlook

    The NRC exercise in Assam gave rise to two categories of people – those who are part of a "silent invasion" and "external aggression" by being Muslims of Bengal origin and the other, non-immigrant undocumented residents of Assam belonging to both Hindus and Muslims of Bengali origin, both of whom are termed as suspected "illegal immigrants" in Assam. The NRC exercise aimed to include only those people who do not have any origin in the specified territory of Bangladesh.

    After the declaration that the Government of India intends to carry out a door-to-door survey for National Population Register (NPR)—which requires stating one’s father’s date of birth and birthplace—it is widely speculated that many non-immigrant citizens of India will be profiled across India as probable "illegal immigrants", if they are found to have any origin in the specified territory of Bangladesh. A large section of the anti-Citizenship Amendment Act (CAA) protesters in Assam proclaim that the presence of large number of Illegal immigrants" from Bangladesh, many of who are now legalised by the recently concluded NRC exercise, still remain a big threat to the identity, language, culture, land, employment and political power of Khilonjiyas or the indigenous people of Assam. They further see CAA as an attempt to allow Hindu Bangladeshis to settle in Assam, which will upset the relatively smaller indigenous groups within Assamese community.

    The question is, how does one determine who is "native" and "indigenous" to Assam as distinguishable from the other Indian non-immigrants, legal immigrants and illegal immigrants of Bangladesh origin. The question is framed from a variety of perspectives. For example, from a Hindu nationalist point of view—which is reflected in the CAA and has become a major controversy—all non-Muslim settlers are ‘legal’ in Assam and across India, with the exception of a few tribal states in Northeast India. The High Level Committee (HLC) constituted for implementation of clause six of the Assam Accord set the terms of reference (ToR) as “reservation in legislative Assembly, local bodies, employment in government services and to protect, preserve and promote cultural, social, linguistic identity and language of Assamese people” to go into what HLC later terms as “indigenous Assamese people”.

    From an insider’s nativist point of view, to be an indigenous is to qualify for "reservation" and "protection" by appropriate constitutional safeguard, otherwise, one runs the risk of not having any such safeguard. Large sections of people of linguistic and religious minorities of Bengali origin, not qualified to any protection within the scope of “Assamese People” and ‘indigenous Assamese people’ as stated in the ToR of HLC, might end up losing their right to land and right to be elected, as these will be reserved only for people covered under clause six of Assam Accord. The matter has been clearly stated by the lawyer, Upamanyu Hazarika, who leads an “anti-immigration forum”: “Legislation should be enacted to ensure that mere citizenship is not enough and you need to be a citizen in or prior to 1951 to purchase land. Similar laws should be put in place for jobs.” This position is reflected in the officially accepted Hari Shankar Brahma committee report on protection of land rights of indigenous people that categorised a section of people as the "non-indigenous Indian citizen" or "non-indigenous non-citizen" who would generally not have right over agricultural land. The report has been accepted by the Assam Government.

    Awful semantic and legal equivalence of indigenous Assamese people and indigenous Indian citizen versus non-indigenous Indian citizen and non-indigenous non-citizen has an implied tendency of framing laws that excludes and restricts rights of these other non-indigene people, even if they prove themselves to be Indian citizens. Around 1.9 million hapless and unfortunate ones failed to pass the test of citizenship by establishing their parental linkages of pre-1971 in Assam post NRC for lacunae in documentation or some other reasons. They are now suffering in the state in fear of being suspected as illegals and join the ranks of the non-indigenous citizen/non-citizen category to be considered ineligible for owning land and much more. Once treated as a non-citizen, one is deprived of the right to have rights, although the Constitution of India does not limit fundamental rights, except the right to vote, even to a non-citizen.

    Image Courtesy: PTI

    Going by the presumed status of being an illegal immigrant of Bangladesh origin, newly proposed laws of the land contain the possibility of an element of exclusion of the "non-indigenous", just as the "aliens" and "illegals" shall be excluded from the pale of rights. The procedure for test of nativity and test of citizenship are intertwined on the basis of the fear of ‘illegal immigrants’ to create a criterion of indigenity as the qualifier for constitutional protection. This has given rise to a not so pronounced layer of probing into origins, which effectively relegates a non-indigenous Indian citizen into a "suspect", and especially those Bengali citizens who have roots in Eastern Bengal of undivided India.

    The infamous Sylhet referendum that purged out erstwhile Surma Valley and Chittagong from Assam to East Pakistan in 1947 led its people to huge displacement. Such displaced people reaching Assam were considered non-indigenous and hence treated unequally in matters of employment by a notification of Assam Government until the 80s in the last century. Similar such discriminatory laws in the making repeat a similar unequal treatment in the domain of rights, which is further accentuated after the NRC exercise, as large number of refugees and other people of Bengal origin could prove their Indianness under the extant pre-1971 cut off date prescribed in law. The demand for 1951 as the cut off year in Assam aims at excluding the so called non-indigenous Indian citizens as not qualified to enjoy any reservation, even if they are Indians. While, the criterion of exclusion from the pale of reservation will give rise to question marks on their nationality in a new way.

    The danger of subverting the right to equality by creating a new concept of indigenous is so far not acceptable within the framework of Indian Constitution. With the coming of CAA and the modus operandi of granting citizenship on the basis of religion to people who originate from specified territories, claims of excluding such people from pale of reservation on the ground of protection of indigenous identity from being marginalised by legalised immigrants results into a diabolical situation. Someone puts it succinctly in social media, "for granting citizenship to half a million NRC excluded Hindus, rights of almost 7.5 million Bengali Hindus of Assam will be restricted in matters of land, employment and political representation".

    Image Courtesy: AFP

    CAA leads to framing of a possible exclusionary legal regimen of "indigenous Assamese" that cuts into rights of all non-indigenous Indians, including Assamese and other Bengal origin people living in Assam. The same kind of legal formulation, once applied in the context of Assam will acquire currency in tribal states of Northeast and then could be utilised as an example to exclude ‘Indians from other states’ by nativists of various shades. Rights of inter-state migrant as equal citizens will be its greatest fallout. CAA creates a spiral of exclusivist legal claims, which, once granted to one Indian state, threatens to pop up everywhere to exclude the non-native and non-indigenous Indian citizens from the domain of rights. This essentially restrictive squeeze on the rights of others, in effect, would restrict the rights of Indian citizens to their respective states and localities without any all India scope.

    Another restrictive law that is suddenly in high demand is Eastern Bengal Frontier Act of 1873, under which movement of people, who are non-native and Indian citizens could be regulated by issuance of a time bound pass, which has come into force in Manipur and in Dimapur, the commercial hub of Nagaland. The hill state of Meghalaya is also demanding an extension of the same inner line permit (ILP) to specifically restrict free movement of "outsiders". The justification, in all cases, is to protect the indigenous identity of the people of a state in this upsurge following CAA.

    In sum, the passage of CAA throwing open the possibility of exclusionary reservation and restrictive laws, all of which targets certain groups of people to be excluded from the sphere of equal rights create multiple "internal" and "external" others in a country of huge diversity. Such a process of othering subverts the very basic structure of Indian Constitution. One twist through CAA opens up such Pandora’s box of laws in the making, with the whole and sole purpose of drawing arbitrary distinctions between people and to discriminate them on the basis of such arbitrary distinctions. This emasculates the politics of consensus by a politics of national and local majoritarianism on the basis of religion, language, ethnicity, tribe and such other social categories.

    The danger of subverting the right to equality by creating a new concept of indigenous is so far not acceptable within the framework of Indian Constitution. With the coming of CAA and the modus operandi of granting citizenship on the basis of religion to people who originate from specified territories, claims of excluding such people from pale of reservation on the ground of protection of indigenous identity from being marginalised by legalised immigrants results into a diabolical situation. Someone puts it succinctly in social media, "for granting citizenship to half a million NRC excluded Hindus, rights of almost 7.5 million Bengali Hindus of Assam will be restricted in matters of land, employment and political representation".

    CAA leads to framing of a possible exclusionary legal regimen of "indigenous Assamese" that cuts into rights of all non-indigenous Indians, including Assamese and other Bengal origin people living in Assam. The same kind of legal formulation, once applied in the context of Assam will acquire currency in tribal states of Northeast and then could be utilised as an example to exclude "Indians from other states" by nativists of various shades. Rights of inter-state migrant as equal citizens will be its greatest fallout. CAA creates a spiral of exclusivist legal claims, which, once granted to one Indian state, threatens to pop up everywhere to exclude the non-native and non-indigenous Indian citizens from the domain of rights. This essentially restrictive squeeze on the rights of others, in effect, would restrict the rights of Indian citizens to their respective states and localities without any all India scope.

    Image Courtesy: PTI

    Another restrictive law that is suddenly in high demand is Eastern Bengal Frontier Act of 1873, under which movement of people, who are non-native and Indian citizens could be regulated by issuance of a time bound pass, which has come into force in Manipur and in Dimapur, the commercial hub of Nagaland. The hill state of Meghalaya is also demanding an extension of the same inner line permit (ILP) to specifically restrict free movement of "outsiders". The justification, in all cases, is to protect the indigenous identity of the people of a state in this upsurge following CAA.

    In sum, the passage of CAA throwing open the possibility of exclusionary reservation and restrictive laws, all of which targets certain groups of people to be excluded from the sphere of equal rights create multiple "internal" and "external" others in a country of huge diversity. Such a process of othering subverts the very basic structure of Indian Constitution. One twist through CAA opens up such Pandora’s box of laws in the making, with the whole and sole purpose of drawing arbitrary distinctions between people and to discriminate them on the basis of such arbitrary distinctions. This emasculates the politics of consensus by a politics of national and local majoritarianism on the basis of religion, language, ethnicity, tribe and such other social categories.


    The author is Associate Professor of Philosophy at North Eastern Hill University, Shillong. An author and Human Rights’ activist with academic specialization in Continental Philosophy ,Political Economy and Political Philosophy. The views are personal.

    First published in Newsclick.

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