Does Supreme Court’s Section 6A order alter citizenship test for Bengali Hindus in Assam?

Last week, the Supreme Court upheld the constitutional validity of Section 6A of the Citizenship Act, 1955 – a provision added exclusively for Assam, a state with a fraught historical experience of migration.

The section created a path to citizenship for migrants to Assam from erstwhile East Pakistan, now modern-day Bangladesh – as long as they had entered India before March 25, 1971. In the rest of the country, the cut-off date for citizenship is 1951.

The court rejected the petitioners’ contention that the provision had caused a “demographic invasion” in Assam and posed a threat to the “indigenous” citizens of the state.

With the Supreme Court order, the Bengali community in Assam, both Hindus and Muslims, dodged a bullet.

A large number of Bengali Hindu migrants entered India during the 1950s and 1960s in Assam, fleeing persecution in East Pakistan.

“Had the court pushed back the date to 1951, it would have been disastrous for Bengali settlers in Assam,” said Joydeep Biswas, who teaches in a college in Barak Valley. “Even if they had been in the state in 1951, documents [to prove that] are very difficult to come by.”

However, the judgement leaves a complex terrain of questions and contradictions to navigate – especially for the Bengali Hindu community.

Which is the cutoff year?

Assam has seen waves of migration of Bengali Hindus and Muslims both before India became independent – and after Partition. The proponents of Assamese nationalism viewed the migrants, irrespective of religion, as a threat to the state's culture and resources.

Section 6A was added to the citizenship law in 1985 as part of the Assam Accord. The agreement was signed between the Indian government and Assamese nationalist leaders who had led a six-year-long movement against “illegal immigration” from Bangladesh.

One result of the accord was that Indian citizenship was barred to migrants who came to Assam after March 25, 1971.

But in 2019, the Narendra Modi government passed the contentious Citizenship Amendment Act in 2019, which radically altered the terms of granting citizenship.

Under the law, undocumented migrants from Bangladesh, Pakistan and Afghanistan were given a fast track to Indian citizenship, provided they had entered the country before December 31, 2014. However, Muslims are barred from availing this amnesty.

For Bengali Hindus, this sets up a contradiction.

“Both Section 6A and Assam Accord say that everyone, irrespective of their religion, have to be detected and deported if they entered Assam after March 1971,” said Sadhan Purkayastha, secretary of the Citizen's Rights Preservation Committee, which advocates for the rights of Assam’s linguistic minorities. “But the CAA allows non-Muslims who came after 1971 to apply for Indian citizenship.”

Purkayastha asked: “Doesn’t one provision of law contradict the other? The Supreme Court does not exempt those who will get citizenship under CAA from this judgement.”

Legal experts told Scroll that the apex court’s Section 6A judgment does not lead to a substantial change for Bengali Hindus in Assam.

“Like all other communities, Bengali Hindus will be bound by the cut-off dates prescribed under Section 6A of the Citizenship Act,” said Alok Prasanna Kumar, co-founder and team lead, Vidhi Centre for Legal Policy.

Kumar explained: “If they are able to show that they (or their parents/grandparents) were in Assam pre-1966, they will be considered citizens. If they are able to show that they or their ancestors came to Assam between 1966 and March 24, 1971, they can apply for and get citizenship subject to the criteria in Section 6A. If they are unable to show either, they will be considered illegal migrants.”

While the CAA may provide some relief, Kumar argued that it would apply to a tiny minority – “only a very specific subset” of Hindu Bengalis who can show that they came from Bangladesh before December 31, 2014.”

Till date, only one Bengali Hindu has received Indian citizenship in Assam under the 2019 law.

Ten others have applied for the same, an official at the state’s census operations, which is overseeing the implementation of the Citizenship Amendment Act in the state, told Scroll on Tuesday.

But many are not able to produce the documents required under the CAA, the official said.

Another complication for Bengali Hindus in the North East arises from the fact that the CAA does not “apply” to Sixth Schedule areas, and those areas governed by the Inner Line Permit.

The Sixth Schedule provides for autonomous decentralised self-governance in certain tribal areas of Assam, Meghalaya, Mizoram and Tripura, while Inner Line Permit is a travel document required for Indian citizens from other states to enter and stay in Arunachal Pradesh, Nagaland, Mizoram and Manipur for a fixed address.

“This is a confusing clause since the citizenship law applies to persons not areas,” Kumar said. “However, one way to interpret it would be to say that the benefit of the citizenship law will not apply to any person living in these areas.”

What changes on the ground?

Some observers from the state said the judgement reflects a “narrow vision” in its assumption of large-scale illegal migration into the state after 1971.

“There is absolutely no empirical data to prove large-scale migration after 1971,” said advocate Aman Wadud.

Wadud, who is also a Congress leader, pointed to the National Register of Citizens – a process of detecting undocumented migrants in the state between 2015 and 2019 which was closely monitored by the Supreme Court – to argue his case.

He explained: “The final NRC excluded only 19 lakh people. They can go on to contest their case in the foreigners’ tribunals, so even this number is not final.”

Wadud said he feared that the Supreme Court’s endorsement of the Assamese nationalist claim of large-scale illegal immigration “might have far-reaching disastrous consequences.”

Forhad Bhuyan, a Barpeta-based political activist, agreed with Wadud. He told Scroll that the court may end up aggravating the crackdown on Muslims in the state and sending more of them to detention centres.

“We are not against the detection of post-1971 migrants, but we know the authorities don’t follow rules,” Bhuyan said. “They arrest and suspect anyone who looks different and speaks the Miya dialect.”

Over a thousand residents of Assam – both Hindus and Muslims – who failed to prove their citizenship before courts and border police, were put in detention centres between 2010 and 2018.

“Most of the Muslims who are facing citizenship cases are genuine Indians who arrived here before Independence,” Bhuyan said. “Hardly any came after 1971 and the NRC proved that.”

According to the Assam chief minister, 12 lakh of those excluded from the NRC – 63 % – were Bengali Hindus.

A discriminatory regime

Finally, the Supreme Court order does not mitigate the discriminatory regime that is currently in place in Assam – where the condition for citizenship is dependent on religion.

On July 5, an Assam government official wrote a letter to the border wing of the state police, directing it not to refer undocumented immigrants to foreigners’ tribunals even if they were suspected of illegally entering the state before 2015 on one condition – they should not be Muslims.

In effect, this set in motion a citizenship regime that discriminates on the basis of religion, and which is backed by the CAA.

While Hindu Bengalis, among other non-Muslims in the state, will not for now be prosecuted by foreigners’ tribunals, quasi-judicial bodies that adjudicate on matters of citizenship, Bengali-origin Muslims have to prove that they entered Assam from Bangladesh before the 1971 cut-off date.

“This is outright injustice and discrimination,” Bhuyan said.