Three years ago, the border wing of the Assam police knocked on the door of Ajit Mahanta Baisnab.
The 53-year-old e-rickshaw driver in Bongaigaon district was told that he was suspected of being an illegal immigrant and a complaint had been made against him in 2002.
“I didn’t even know there was a case against me,” Baisnab told Scroll. “The police told me to connect with a lawyer and fight the case in the court.”
Baisnab denies he is a foreigner. He said he was born in West Bengal’s Cooch Behar district and came to Gossaigaon when he was six years old.
“I studied there till Class 4 and I have a school certificate from 1982 that shows that,” he told Scroll. He also said he had documents in his possession that proved that his father was a resident of Bengal in 1957.
For the last three years, Baisnab’s case is being heard at the foreigners’ tribunals – quasi-judicial bodies that adjudicate on matters of citizenship and are unique to Assam.
If only the Assam police had waited till July 2024 to act on the complaint against him, Baisnab would have been spared the difficulty of facing Assam’s labyrinthine citizenship trials.
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.
The border police, which investigates citizenship cases, was told by the Assam home department that the undocumented immigrants from the Hindu, Sikh, Christian, Parsi, Jain and Buddhist faiths should “be advised” instead to apply for citizenship on the Citizenship Amendment Act portal.
The contentious Citizenship Amendment Act, passed in 2019 by the Narendra Modi government, provides a fast-track to citizenship to refugees from six minority communities belonging to Afghanistan, Pakistan and Bangladesh. Only Muslims are denied this relief.
The stipulation is that they should have entered the country, even if illegally, before December 31, 2014.
The act, which has been criticised as exclusionary and discriminatory against Muslims, triggered widespread protests across the country in 2019. Some of the fiercest protests were held in Assam and five were killed in the winter of 2019. Assamese nationalists feared that the law would open the door to lakhs of migrants from India’s neighbourhood, swamping the northeastern state.
The protests pushed back the implementation of the law by four years – the rules were notified only in March this year.
So far, there have been few takers for the law in Assam, with Bengali Hindus who migrated to Assam from Bangladesh hesitating to apply for Indian citizenship under it.
The state government hopes to change this by directing the border police to overlook the cases of Bengali Hindus like Baisnab. A senior state home department official, who did not want to be identified, told Scroll that the idea behind the directive “is to implement the Citizenship Amendment Act”.
Experts, however, point out that the directive, by excluding non-Muslims from the scrutiny of the border police, marks a significant step towards creating a citizenship regime that discriminates on the basis of religion – just what the CAA envisions.
“Now only Muslims will have to prove their citizenship and be sent to the foreigners’ tribunals,” said Gauhati High Court advocate Santanu Borthakur. “It violates Article 14 of the Constitution as the CAA differentiates between persons based on their religion.”
While representatives of Bengali Hindus have welcomed the order, they are uncertain whether this exemption is enough to solve the many citizenship tangles in which the community finds itself.
Members of the community also remain reluctant to apply for citizenship under CAA, given that it involves submitting documentary evidence that a person migrated from Afghanistan, Pakistan or Bangladesh.
“Everybody knows no one is willing to apply for citizenship under CAA,” said Santanu Mukherjee, a leader of the Bengali Hindus from Guwahati. “The chief minister is now misguiding and blackmailing Bengali Hindus so that they [are forced to] apply under the law.”
Baisnab’s lawyer, S Basu, for instance, said the home department order will have no bearing on his client’s case. Nor was he enthusiastic about applying for citizenship under the CAA. “If the FT judgment is against us, we can think of the next step,” Basu said. “Should we challenge it before the high court or apply under the CAA? Whether the law will benefit Bengali Hindus or not, the picture is not yet clear.”
‘Only Muslims on trial now’
Before the CAA became law, only those living in Assam before March 24, 1971, or their descendants, qualified to be Indian citizens in Assam. Those who had arrived in the state later were liable to stand trial before the foreigners’ tribunals.
But the July 5 letter to the Assam Police changes this, providing amnesty to Bengali Hindus.
The letter was leaked to the media just hours before a scheduled press conference of chief minister Himanta Biswa Sarma.
In the press meet, Sarma clarified that cases that are pending with the tribunals’ will not be dropped. But they may “be paused” for a few months to encourage applicants to apply for citizenship under the Citizenship Amendment Act, the chief minister said.
“We will give a chance to all the people [Hindu Bengali] whose cases are pending in the different courts to apply [for citizenship under] the CAA,” Sarma said. “[But] if they don’t apply under CAA, we will lodge a case.”
The letter from the home department says that this “differential treatment” will not apply to people who entered Assam after December 31, 2014, irrespective of their religion. “Once detected, they should be straight away forwarded to the foreigners’ tribunal for further action,” it read.
On the ground, the July 5 order is expected to end the harassment of Bengali Hindus by the border police and foreigners’ tribunals.
“There should not be any cases in foreigners’ tribunals against the Hindu Bengalis who came till 2014 as they are eligible for the citizenship according to the new citizenship law,” Hitesh Dev Sarma, former home secretary, told Scroll. “The simple and direct understanding of the order is that they should not be harassed unnecessarily.”
The senior state home department official admitted that the CAA does not refer to cases pending before foreigners’ tribunals. “But once a particular person obtains a citizenship certificate as per the CAA, the case will be closed and become infructuous,” he said.
A researcher on citizenship from the Hindu Bengali community, who declined to be identified, called the order “game-changing”. “In the history of Assam, there has been no official order that asked police not to go after Bengali Hindus,” the researcher said. “It is crystal clear from the order that the FTs and the border police will only target Bengali-origin Muslims from now on as even the other Muslims are protected by Himanta. He has taken official steps to protect the indigenous Muslims,” the researcher said.
In 2022, the Himanta Biswa Sarma-led government granted indigenous status to about 40 lakh “Assamese Muslims”, to distinguish them from the Bengali-origin Muslim community. While that is likely to benefit “indigenous Muslims” in citizenship trials, in the past that has not stopped them from being asked to prove that they were Indians.
Bengali Hindus and CAA
For the last six decades, Assam’s politics has been shaped by the anti-outsider sentiment and anxiety over resources being taken by undocumented immigrants from Bangladesh.
This animosity has often been targeted against Hindu and Muslim Bengalis in Assam, from the Bongal Kheda andolan in the 1960s to the six long years of the Assam movement that demanded the expulsion of all “Bangladeshi immigrants”.
The proponents of Assamese nationalism viewed “illegal migrants”, irrespective of religion, as a threat to the state’s culture and resources. But the BJP believes only Muslim migrants threaten indigenous interests.
The current order, offering relief to Bengali Hindu immigrants, is in line with the party’s stand.
“There will be no new cases against Bengali Hindus in the future,” claimed Kamalakhya Dey Purkayastha, a suspended Congress MLA from Barak Valley, who is also a close aide of Himanta Biswa Sarma.
Organisations representing Bengali Hindus said the order also fulfilled a promise made by Sarma while campaigning in the Lok Sabha elections. The chief minister had asserted that the issue of D-voters in the Bengali Hindu community will be resolved in six months.
D-voters, or doubtful voters, is a category that the Election Commission created in 1997 to mark out those whose citizenship was in doubt. They were disenfranchised and referred to foreigners’ tribunals. Hundreds were also sent to detention centres.
According to official data, as of February this year, as many as 94,149 cases of D-voters were pending before the 100 foreigners’ tribunals in the state.
Since most of these cases date back to 2014, the Hindu Bengalis among them stand to gain from the order, said representatives of the community. The home department order, however, does not make any mention of D-voters.
“This order has encouraged the Bengali Hindus that the government is doing something for us,” Amritlal Das, general secretary of Sara Asom Bengali Oikyomoncha, a group that claims to represent the Bengali Hindus.
The questions that remain
However, several other Bengali Hindu groups remain sceptical about the impact of the order given the complications of Assam’s citizenship regime.
“What will happen to the lakhs of Hindu Bengalis left out of the NRC?” asked Kishore Kumar Bhattacharjee, secretary of the Citizen’s Rights Preservation Committee, which advocates for the rights of Assam’s linguistic minorities.
The NRC or National Register of Citizens was updated in Assam in 2019 in an attempt to list genuine citizens, against the backdrop of fears that large numbers of undocumented migrants from Bangladesh were living in the state. Over 19 lakh residents of the state were left out of the register, potentially pushing them towards a future of statelessness.
According to the Assam chief minister, 12 lakh of those were Bengali Hindus.
Those excluded from the National Register of Citizens also have to appeal to the foreigners’ tribunals to prove their citizenship.
“The chief minister said they will not send Bengali Hindus to FTs but what would be their future?” asked Bhattacharjee. “Will they get non-conditional citizenship as was promised?”
“The CAA will not help Bengali Hindus,” he said.
The ‘origin country’ hurdle
The reason for the scepticism is a rule of the CAA that demands documents from applicants proving they came from Bangladesh, Afghanistan or Pakistan.
Second, they will have to provide documents that show they crossed over into India before December 31, 2014.
Officials in the state home department have acknowledged that the undocumented migrants from Bangladesh continue to struggle to produce the papers the CAA asks for.
“People are not applying under the CAA as they don’t have the certificate or document that they have come from Bangladesh, the origin country,” the senior home department official told Scroll. “Where will they get the document? They may have come here 50 years ago.”
He said that “something” will have to be done about this.
Santanu Mukherjee, the Bengali Hindu leader, pointed out that Sarma’s assurance of not proceeding against pending cases in foreigners’ tribunals was merely a verbal one. “There was nothing in the order which talks about pending cases at the tribunals,” he said.
Gauhati High Court advocate Borthakur pointed out that the legal challenges to CAA also make the situation complex. “The constitutionality of the act is itself under challenge and pending before the Supreme Court,” he said. “The government ought to have waited for the outcome of that challenge. If the Supreme Court strikes down the act, and meanwhile these people are granted citizenship, will they revoke their citizenship?”
