Does the CAA legalise exclusion?

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The National Register of Citizens (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 Bengali origin and the other, nonimmigrant, 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 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 nonimmigrant 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 anti-Citizenship Amendment Act (CAA) protestors in Assam proclaim that the presence of a large number of  “illegal immigrants” from Bangladesh, many of who are legalised by recently concluded NRC exercise, still remain as a big threat to identity, language, culture, land, employment and political power of Khilongiyas or 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 the Assamese community.

The question is, how does one determine who is “native” and “indigenous” to Assam as distinguishable from the other Indian nonimmigrants, legal immigrants and illegal immigrants of Bangladeshi origin?

The question is framed from a variety of perspectives. From a Hindu nationalist point of view, for example, as reflected in the CAA, which became a major controversy, all non-Muslim settlers are “legal” in Assam and across India, with the exception of a few northeastern tribal states. The High-Level Committee (HLC) constituted for implementation of clause six of Assam Accord set the terms of reference (ToR) as “reservation in legislative assembly, local bodies, employment in govt. 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 indigenous is to qualify for “reservation” and “protection” by appropriate constitutional safeguard, but otherwise one runs the risk of not having any such safeguard. Large sections of people of linguistic and religious minorities of Bengali origin are not qualified for 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 is clearly stated by one of the most articulate lawyers 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 an officially accepted Hari Shankar Brahma Committee Report on the protection of land rights of indigenous people that categorised a section of people as 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 procedure of framing laws that exclude and restrict the rights of these other non-indigenous people, even if they prove themselves to be Indian citizens. In the case of those 1.9m hapless and unfortunate ones who 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 suffer in the state 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. Going by the presumed status of being an illegal resident of Bangladesh origin, the newly proposed law of the land contains 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 the test of the nativity and the test of citizenship are intertwined on the basis of the fear of “illegal immigrants” to create a criterion of indigeneity 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, 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 and such displaced people reaching Assam were considered non-indigenous and hence treated unequally in matters of employment by a notification of Assam Government. 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 a large number of refugees and other people of Bengali origin could prove their Indianness under the extant pre-1971 cut-off date prescribed in the 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 the 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 the Indian Constitution. With the coming of the CAA and the modus operandi of granting citizenship on the basis of religion to people who originate in 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 result into a diabolical situation. Someone puts it succinctly in social media, “for granting citizenship to half a million NRC excluded Hindus, rights of almost 7.5m Bengali Hindus of Assam will be restricted in matters of land, employment and political representation”. The CAA leads to the 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 northeastern tribal states and then could be utilised as an example to exclude “Indians from other states” by nativists of various shades. Rights of the inter-state migrant as equal citizens will be its greatest fallout. This CAA creates a spiral of exclusivist legal claims, which once granted to one Indian state threatens to pop up everywhere to excluded 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 the Eastern Bengal Frontier Act, 1873, under which the movement of people, who are non-native and Indian citizen could be regulated by the issuance of a time-bound pass, which has come into force in Manipur and in Dimapur, the commercial hub of Nagaland. Hill state of Meghalaya is demanding extension of the same inner line permit (ILP) to specifically restrict the 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 the Indian Constitution. One twist through CAA opens up such a pandora’s box of laws 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.

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This post was last modified on 20/01/2020 9.50am

Prasenjit Biswas: Associate Professor of Philosophy at North Eastern Hill University, Shillong. An author and Human Rights’ activist with academic specialisation in Continental Philosophy, Political Economy and Political Philosophy.
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