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Defining Migrants, Foreigners and Citizens in Assam

by Sanjib Baruah, 3 December 2008

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The Telegraph, December 2, 2008

The contentious history of citizenship, which lies behind the Assam bombings, emanates from the Partition, writes Sanjib Baruah

Even by the standards of a place quite used to political violence, the serial terror bombings in Assam of a month ago had crossed a threshold. While asking who did it, we have not asked what created the political space for this dangerous turn. So there is a tendency to think that there may be a technocratic answer, like border fencing.

Citizens and foreigners are contested concepts in Assam. The reasons are historical. They lie partly in the difference between the way Partition played out in the east and in the west. While in Punjab, the “exchange of population” occurred in the immediate aftermath of the Partition, in the east the movement of population remained open-ended. Apart from a steady movement of Hindus, the economically induced migration of poor Muslim peasants to Assam that began in the early 20th century also continued.

But Indian law cannot make a distinction between Hindu and Muslim arrivals from Pakistan or Bangladesh. Both categories of migrants are foreigners. They can become Indian citizens, but only through a legal process akin to naturalization. But in terms of perception, the Partition complicated the question of the continued migration of Muslims. And in the case of Hindus, India’s citizenship laws are not necessarily accepted as the most authoritative.

The politics of citizenship in Assam also has a distinct local accent. The Assamese view is stubbornly non-discriminatory: it does not acknowledge any implicit right of return of Hindus. There were no Assamese Hindus in the territory that became Pakistan who moved to India because of the Partition. But the attitude of Assam’s Bengalis is very different because of the effects of Sylhet becoming part of Pakistan.

For nearly three decades, the Congress-ruled governments in Assam managed to keep the problem under control. The formula was clever and simple: almost any adult in Assam could get his or her name included in the electoral rolls. This could become a matter of political patronage: what was involved was not a formal certificate of citizenship, but a document like a ration card. This allowed Assam to postpone indefinitely a resolution of the citizen/foreigner question that is both legal and authoritative.

It was not a radical Assamese nationalist who upset this applecart. No less a constitutional authority than India’s chief election commissioner spoke in 1978 of the “large-scale inclusions of foreign nationals in the electoral rolls”. He warned that “a stage would be reached when the state may have to reckon with the foreign nationals who may in all probability constitute a sizeable percentage if not the majority of population”. The words proved to be the lightning rod for the Assam Movement of 1979-85. Suddenly as many as 4.5 to 5 million people in Assam — 31 to 34 per cent of the population in 1971 — were said to be foreigners. The campaign mobilized enormous support, but its platform made a large segment of multiethnic Assam’s population anxious.

Since then India has tried to manage this ambiguity about citizenship through an intricate set of legal and political manoeuvres. The arrangements can be described as a hybrid citizenship regime. It has three elements. One, migrants who moved to Assam from East Pakistan — migrants of the 1947-71 period — were to be deemed Indian citizens. Two, a distinction was made between those who arrived before 1966 and those who came between January 1, 1966 and March 24, 1971. The latter were debarred from voting for 10 years. Three, those who came after the formation of Bangladesh — post-1971 migrants — were to be given the protection of a judicial process against deportation.

The first element, full citizenship for pre-March 1971 immigrants, is straightforward. The second is hybrid, since it recognizes a category of foreigners who would become full citizens, but whose voting rights are not given for 10 years. The expressed purpose of the Illegal Migrants (Determination by Tribunals) Act, 1983 was to establish tribunals to expel illegal migrants in a fair manner. But its function was to insulate post-1971 immigrants from Bangladesh from the application of India’s citizenship laws.

Hybrid citizenship is lawmaking by stealth. The government does little to publicize this conferring of citizenship on millions of people. Thus, an air of ambiguity envelops the citizenship status of its beneficiaries.

Two laws that created the hybrid citizenship regime call up a date that resonates more in Bangladesh than in India. March 25, 1971 was when the Pakistani military crackdown on East Pakistan began, initiating a massive exodus to India. According to the Indira Gandhi-Mujibur Rahman agreement, Bangladesh takes responsibility for those who moved to India after that date. But this means that migrants from East Pakistan, whether Hindu or Muslim, had to be deemed Indian citizens since Bangladesh, as the successor state, is not responsible for them. Thus in Indian law, only someone who came after 1971 can be considered an illegal immigrant.

Whatever the legitimacy problems of lawmaking by stealth, the hybrid citizenship regime enabled the Congress to continue presenting itself as the sole provider of security to ‘minorities’ and win elections in Assam, though it has had to make some room for the Asom Gana Parishad.

In 2005, the Supreme Court ruled the IMDT law unconstitutional. The law, said the court, had encouraged massive illegal migration from Bangladesh to Assam and that it created “insurmountable difficulties” in detecting foreigners in Assam. The verdict has played a role not unlike that of the election commissioner’s statement in 1978. Assam has been on a boil ever since. The immigrant communities in Assam are more assertive today. Street confrontations over vigilante action against suspected Bangladeshis have turned ugly. This was the political context of the terror bombings. That citizens and foreigners remain essentially contested concepts provided the backdrop.

Border fencing will not provide a magic answer unless we confront how the Partition has played out in the east. We complain about thousands of illegal Bangladeshis in India. Bangladesh however, completely denies such a claim. That is possible partly because the issue is unresolved inside India. Our citizenship practices have not been able to negotiate an authoritative line between the Hindu nationalist idea of homecoming and illegal immigration. To do that risks the Indian state’s foundational ideology.

It may be productive to consider that cross-border movement of people might continue with or without a border fence. Theoretically speaking, a multi-level and transnational citizenship regime that decouples citizenship from nationality is possible. It could combine voting rights in Bangladesh, with full rights of personhood in India. A notion of citizenship as a combination of rights associated with personhood and the workplace separate from voting rights provides a possible way out. While some rights could be universal, others could remain tied to nationality. Resident and migratory foreigners could have the former, but not the latter.

Once we find a definition of citizenship, both legal and authoritative, it might be easier to have a rational discussion with Bangladesh about cross-border population movement. An Indo-Bangladesh protocol on labour movement can reduce some of the immediate strain. That may be the first step toward developing a transnational citizenship regime for an existing transnational economic space.

The author is honorary professor, Centre for Policy Research, New Delhi