Last week, Justice SR Sen of the Meghalaya High Court decided a petition challenging the refusal of a domicile certificate. But the judge did not stop at settling the question of domicile. He entreated the Indian government to grant citizenship to all Hindus, Sikhs, Jains, Buddhists, Parsis, Christians, Khasis, Jaintias, Garos who have migrated to the country – in effect endorsing the Citizenship Amendment Bill of 2016, floated by the Narendra Modi government.

Sen did not stop at citizenship either. At Partition, he observed in his judgement, “Pakistan declared themselves as an Islamic country and India since was divided on the basis of religion should have also been declared as a Hindu country but it remained as a secular country.” He went on to add, “The question is how can a Hindu belong elsewhere physically, psychologically and spiritually. His heart and home is India his native land India.” Finally, Sen suggested a copy of the judgement be posted to the prime minister, the law minister and the home minister. The only government capable of warding off the “doomsday” when India turned into an “Islamic country”, Sen said, was that of Modi.

As sen’s observations drew a wave of condemnation, with the Communist Party of India (Marxist) calling for his removal, the judge clarified: he did not speak against secularism, he does not belong to any political party, he was only making a case for those who had faced religious persecution to be granted sanctuary. The last is an argument often deployed by the Bharatiya Janata Party to defend the Citizenship Bill and does not explain why the proposed legislation does not cover Muslim minorities, such as the Ahmadis who have faced persecution in Pakistan.

Sen’s clarification also does not take away the judgement’s worrying use of history. It is not news that, with the rise of Hindutva, history has become an arena for battles of identity. These contestations now seem to have entered the judiciary. In the process, Sen has managed to entangle genuine humanitarian concerns with saffron-infused pop history.

Sense of history

Sen’s particular concern was for Hindu Bengalis in Assam, many of whom are in danger of losing citizenship because of the National Register of Citizens, which is supposed to be a roster of “genuine Indian citizens” in the state after weeding out undocumented migrants. The register has such exacting rules for eligibility that over 40 lakh applicants have been left out of its final draft. To qualify, the applicants must prove they or their ancestors entered the country before midnight on March 24, 1971, when the Bangladesh war began.

The process has been monitored and nudged along by the Supreme Court since 2013. But its judgements and orders on so-called illegal immigration have relied on alarmist reports by bureaucrats or court-appointed committees. They range from CS Mullan’s observations in 1931 about “land-hungry hordes” of Muslim peasants to a 1998 report by SK Sinha warning of an “invidious invasion of Assam” from Bangladesh which had to be curbed without paying heed to “misconceived and mistaken notions about secularism” to submissions made by the advocate Upamanyu Hazarika in 2015 about an “established institutionalised mechanism which enables a Bangladeshi national to freely come into the country”.

But Sen does his own research, cherrypicking from books, including those written by Meghalaya Governor Tathagata Roy, known for his communally charged remarks on social media and elsewhere. The danger of the judgement lies in the way it combines Hindutva mythmaking with the real, painful histories of a region that has seen decades of upheaval and violence, playing up certain faultlines while ignoring other solidarities.

Saffron myths

Sen draws on the classics in the saffron canon. Hindu civilisation may be traced by to the Indus Valley, never mind what the bulk of modern scholarship might say. There is the invocation of Akhand Bharat, a fictional Hindu kingdom that held Bangladesh, Pakistan and Afghanistan within it and was broken up by invading Muslim rulers who started conversions “by force”. Then the British left behind a divided subcontinent, with “lakhs and lakhs” of Hindus and Sikhs killed at Partition, Sen observes. No Muslims are ever killed in this version of history.

Hindutva myths and half-truths flatten out the real histories Sen might have told. It’s true that, unlike the single massive surge of violence on the Punjab border, Partition on the eastern front was a slow bleed. Here, communal violence brought waves of refugees, mostly Bengali Hindus, from 1947 until after 1971, when Bangladesh was formed. It is also true that this displacement and loss has gone largely undocumented, overshadowed by calamities on the western border.

The thrust of SR Sen’s history is very much along the lines of Narendra Modi’s campaign speeches in the North East, where he has asserted that India is a 'natural home' for Hindus. Photo credit: PTI

Stories of exile

But the rhetorical thrust of Sen’s history is very much along the lines of Modi’s campaign speeches in the North East, where he has asserted that India was a “natural home” for Hindus. Sen builds his case for granting citizenship to Hindu Bengalis on Sylhet, a Bengali-dominated area in the colonial province of Assam which was dismembered at Partition. Most of it went to East Pakistan, now Bangladesh, with only three thana areas remaining with Assam.

In Sen’s telling, Sylhet was once a Hindu kingdom of “Indo-Aryan Brahmins with some ethnic traces of Assamese”. It was invaded by Muslim conquerors and then subjected to persecution, first by the British administration, then the East Pakistani state on the other side of the border and India’s Assam state. The referendum by which the district was partitioned in 1947 was not “free and fair”, says Sen, citing colonial-era documents. The persecution and exile faced by the Hindu Bengalis of Sylhet, he argues, was similar to the Jewish Holocaust.

Aside from its castiest bias, there are crucial elisions in this account. In local histories of Sylhet, Nabanipa Bhattacharjee notes, there are comparisons with the Jewish exile. But the history of the region is not just of Hindu persecution. Until 1874, Sylhet was part of the colonial province of Bengal. When Assam was sectioned off from Bengal, Sylhet was tacked on to it for administrative and commercial reasons, Bhattacharjee writes. This was the beginning of the Sylheti exile from a Bengali homeland. It also spurred the creation of a cultural and linguistic identity that was distinctly Sylheti as well as Bengali, constituted not just by Hindus but also middle class Muslims. In the final wrench of Partition, even the Sylheti homeland was torn apart, leading to a cultural identity without geographical moorings.

Over the decades, this identity would shift emphasis, especially on this side of the border in Assam. Post independence, the Bengali component would be foregrounded in a language movement to resist Assamese cultural nationalism. And the “language martyrs” killed in Silchar in 1961 were Hindu Bengalis.

Natural citizens?

The traumas and displacement faced by thousands of Hindu refugees in Assam’s Barak Valley are real and largely unacknowledged. But Sen robs them of authenticity. First, by fusing them with Hindutva myths that have little concern for historicity. Second, by deploying these histories in a way that fits the political argument of the Sangh Parivar: Hindus are the natural citizens of India.

Finally, nowhere in his tract does Sen make space for the experiences of Bengali Muslims. They too were branded Bangladeshi and made targets of Assam’s anti-foreigner movement, which gathered steam in the late 1970s. They also suffered massacres in Assam, from Nellie 1983 to Kokrajhar 2012.

Demographic details of the applicants left out of the National Register of Citizens have not been made public, but anecdotal evidence suggests both Hindus and Muslims are on the list of rejects. Both communities face dispossession, the loss of citizenship and the horrors of Assam’s foreigner detention camps.

According to Sen, Hindus, Sikhs, Jains, Buddhist, Parsis, Christians, Khasis, Jaintias and Garos living in India and those entering the country in future should be given citizenship, no questions asked and no cut-off dates to abide by. He then makes some allowances for his “Muslim brothers and sisters who are residing in India for generations and abiding Indian laws”.

The difference is unmistakable. One community is required to have lived decades in the country and proved itself fit to stay on – it is not clear if citizenship is on the table – by following Indian laws. The rest are eligible for automatic citizenship. These are chilling words from a court of law meant to protect the rights of individuals without “fear or favour”, “affection or ill-will”.