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An inclusive treatise of citizenship

Can citizenship be thought of from the point of view of the excluded? This has been an important question among…

An inclusive treatise of citizenship

Representational image (Photo: Getty Images)

Can citizenship be thought of from the point of view of the excluded? This has been an important question among scores of political theorists and policy and opinion-makers across the world.

Mark S Werbner and Yuval Davis define citizenship as “a more total relationship, inflected by identity, social positioning, cultural assumptions, institutional practices and a sense of belonging.”

In the present referral to the full constitutional bench of the Supreme Court in the case about the constitutional status of Clause 6(A) of the Assam Accord, all these factors shape the stand taken by the various parties involved.

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One of the major arguments is that if those immigrants from erstwhile East Pakistan who came to Assam till 1971 are granted citizenship under the said 6(A), it will alter the demographic pattern, change land holdings and ownership and as such, undermine the place of Axomiya language and culture.

The Assam Accord — looked upon as a constitutional safeguard to Axomiya language, culture, identity and development of Assam — is both inclusive and exclusive.

The Accord broadly construed an inclusive notion of difference and otherness to accommodate multiple nonAxomiya ethnic and cultural groups, while it restricted the grant of citizenship to post-1971 immigrants.

The Accord combined difficult political and social realities — on one hand, it created a framework for detection and deportation of post- 1971 illegal immigrants and on the other, it took care of the need for assimilation and co-belonging of multiple settlers; native and migrant linguistic, religious and ethnic groups.

In no way can either one of the two aspects be given precedence over the other, as Assam’s delicate ethnic balance depends on a continuous pursuance of the letter and spirit of the Accord to ensure stability, growth, redistribution and social cohesion, both in the state and the entire Northeast.

In the early stages of the hearing on the constitutionality of Clause 6 (A), Justice Madan Lokur raised the matter, in no uncertain terms, by asking the solicitor of Assam whether the Sammiliato Mahasangha, a conglomerate body of ethnic groups, want to nullify the Assam Accord.

The contenders avoided answering this uneasy question but reasserted that they only wanted abolition of Clause 6 (A). To this, the court pointed out that such abolition would amount to scrapping of the Accord itself. After that, the bench suspended hearing until further listing.

This brings one back to the context of constitutional perspectives on the Assam Accord and related events. One of the major judgments passed by the Supreme Court was the declaration in 2005 of the Illegal Migrants’ (Determination by Tribunals) Act, 1985, as unconstitutional.

While repealing the act, the Supreme Court put the onus on the suspected illegal immigrant to prove his/her antecedents, and not on the one who makes a complaint.

It was welcome as a step towards identification and deportation of illegal immigrants to their country of origin.

Further, the same judgment declared that the IM (DT) Act violated Article 355 of the Constitution as well as Article 14, as it only applied to Assam.

One of the implications of the judgment is that there can be no Assam-specific rule that does not apply to rest of India. But carrying out a National Register of Citizens by the executive according to Rule 4A and Schedule of Citizenship Rules, 2003, — that states nothing in Rule 4 of the same rules shall, on and after the commencement of the Citizenship (Registration of Citizenship and Issue of National Identity Cards) Amendment Rules, 2009, apply to the State of Assam — creates a legal incoherence as there cannot be Assam-specific rules that do not apply to the other parts of India for the purpose of citizenship.

To this legal incoherence, the idea of legacy data and link documents — which is not prescribed in the procedure of census of registration of citizenship — is invoked in case of Assam as only a procedure following a twomember Supreme Court judgment, for which there is no extant law.

Although a Supreme Court judgment in a specific case is equivalent to law of the land yet its larger applicability over the whole country remains a question under the scope of Article 14.

So the “National Register of Citizens of India in the state of Assam” is determined by special laws, and as such there are no similar and parallel procedures available in any other state of India.

To make matters more exceptional, the Assam government had set up detention camps for suspected and doubtful “D” voters in Goalpara, Kokrajhar, Silchar, Dibrugarh, Jorhat and Tezpur, that house many suspected “D” voters, who are declared foreigners, sometimes in the absence of proper legal defence.

As most of the detainees are poor and illiterate, they were not in a position to bear the high legal costs of defending them as Indian citizens.

The conditions within such detention camps also have raised concerns from human rights standards that are adopted globally.

One wonders whether there are any such detention camps in other parts of the country. The moot point is that executive procedures and multiplicity of legal processes need to take care of rights of the accused or the victim. In most cases, the procedures are not properly justiciable and skewed, much to the disadvantage of the ethnic and linguistic minorities of Assam, once they are dubbed “D” voters or Bangladeshis.

The Assam Accord, which established a sense of normativity, reason and justice, stands out as the most rational fine print of a para-legal document and it needs to be implemented by upholding the due process of law.

Also the universality of human rights, which is above the constitutional human rights, as John Rawls stated in his “Law of People”, need to be maintained in a sensitive manner by taking into account humanitarian concerns.

(This article was written after the Supreme Court deferred its hearing on Clause 6 (A) of the Assam Accord, on 8 May)

The writer is an author, a human rights activist and philosopher based at the North Eastern Hill University, Shillong

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