Writ[e] & Talk | Ep 6 | The Chakmas’ Struggle for Citizenship: Breaking Down India’s Citizenship Acquisition Regime

Listen to the episode here: Spotify | YouTube 

Host: Mr. Atharva Chandra

Speaker: Mr. Moosa Izzat

TRANSCRIPT

Mr. Atharva Chandra

Today we are in conversation with Mr. Moosa Izzat, who is an upcoming LLM Human Rights candidate at the University of Edinburgh. He is also a BALLB graduate from the National University of Juridical Sciences, Kolkata. First of all, Moosa, I must tell you it is so refreshing to find someone who is putting out such great scholarship and someone who, you know, is in the same age group as me. That really puts me in a very inspired position. 

Mr. Moosa Izzat

Thank you so much. I'm also very glad that, you know, there are podcasts like this taking place. I hadn't seen any in my last five years. Thank you so much for inviting me.

Mr. Atharva Chandra

It is our pleasure. So today we'll be discussing questions and issues related to a paper written by Moosa, which is titled, The Chakma Struggle for Citizenship, Breaking Down India's Citizenship Acquisition Regime. It has been published in the NUJS Law Review, Volume 15, issue 3-4. For those among our audience who are interested in reading this article in detail, a simple Google search will lead you to the same. 

First of all, Moosa, how did you arrive upon this decision where you wanted to study this particular issue? Because we have seen numerous scholarships pertaining to whether the citizenship regime in India is right or wrong. But we often do not see scholarship related to how particular citizen groups are suffering because the citizenship regime does not accommodate them.

Mr. Moosa Izzat

So in that way, I've been very lucky to have had two courses during my undergraduate program that was taught by Ms. Darshana Mitra. She had taken two courses, one on comparative citizenship law and another on Indian citizenship and immigration law. So that was my introduction to citizenship law. And because they were full-length courses that ran through the semester, they really allowed me and my other students in the batch to explore citizenship law in a way that I think very few law students are currently able to do. So I would ascribe my motivation to pursue this research to the two courses on citizenship.

Mr. Atharva Chandra

Alright, I think that is very interesting because I mean around my age I often, it is very rare that students are motivated by what they listen in class and they end up writing such a great piece of scholarship but I guess this podcast will act as a mean to lead more people towards this direction.

Mr. Moosa Izzat

Absolutely

Mr. Atharva Chandra

Moving On, Moving on, Moosa, when we read your paper, we come to an observation that the laws regarding the citizenship regime in India are very confusing. And I believe this confusion or this vagueness has led to the plight of the Chakma population, particularly in Arunachal Pradesh. How would you like to comment on the current citizenship regime in India? What do you think are its merits and demerits? 

Mr. Moosa Izzat

I would say as a piece of legislation itself, it's not extremely complicated, primarily because the number of provisions itself is not too many. The sort of different ways in which a person can be a citizen is also not divided in a particularly complex manner. I think where it gets complicated is one where the citizenship regime for Assam is different from the rest of India. So this is one like very sort of, prime area of complication because Chakmas have also suffered the brunt of this complication, which is that because the Assamese people have a different citizenship regime, it's very sort of, it was very complicated in their case to determine whether they would be subject to Assamese citizenship law or the citizenship regime that applies to the rest of India. Otherwise in terms of the provisions for acquisition of citizenship, they are not too complicated, they're fairly straight forward. Although they're also not the most liberal if you compare it to other states that have birthright citizenship and so on.

Mr. Atharva Chandra

But then Moosa, how do you think this translates to real life consequences for the citizens living in Assam and other ethnic groups such as Chakmas? How does this dual mode of citizenship sort of act? How does this affect people? 

Mr. Moosa Izzat

Yes, so in my limited understanding, what happens is Assam had its own sort of trajectory with the citizenship regime that was fueled primarily by the movement by the all Assam Students Union. I think I'm getting, I'm not sure if I'm saying that right. The AASU in the 1980s led by this movement from the AASU. Wait, I think I said the year wrong. I'm sorry, if I could repeat what I'm saying. What I'm saying is that, yeah, so the trajectory that Assam has had been very peculiar because if you look at the provision currently also section 6A of the Citizenship Act, there are two requirements, one which is entry into Assam pre-1966 as well as continued ordinary residents in Assam.

So this is very peculiar and unlike the citizenship regime of India, because it can't really be categorized either as you solely or as you sanguineous, which is primarily like typically the only two common ways of citizenship acquisition for people within a territory. Whereas the rest of India has a fairly straightforward system where I mean, I think any sort of complication arises only based on the year you were born in because pre-1987 we have a simple citizenship by birth. where if you are born in India, you are an Indian citizen. That's fairly straightforward. Post 1987, we have this additional requirement of your parent also being a citizen. And it is only in 2003 that we have a third requirement that neither of your parents should have been an illegal immigrant. Although this might lead to some inconsistency, the basis of that system is still fairly uncomplicated. It is only in cases where, like for instance, with the Chakma refugees, I would say that the issue is not the legal question of whether they are citizens, but these socio-political factors bringing in non-legal considerations into the picture. What I mean by that is, is that legally speaking, at least, at the very least, the Chakmas who are born between 1950 and 1987 ought to be considered citizens. But when The AAPSU or the Arunachal Pradesh state government contests the citizenship of Chakmas. It's doing it for the entire population of Chakmas, irrespective of when they were born. So their argument is not necessarily legal. It is simply to say that these people are not originally from Arunachal Pradesh, and therefore they should not have citizenship. So I think the issue becomes where non-legal considerations sort of come into conflict with what should otherwise be a fairly straightforward legal question.

Mr. Atharva Chandra

All right, all right. So now I understand better. But Moosa, we often, as students of law, I have often read that the Indian Constitution, or when we began this journey of nation building, we did not place any such a non-legal consideration, any non-legal considerations on how a person gets citizenship. But as you said, there are several non-legal considerations which sort of find their way into this process of how a person can become a citizen. Why do you think that is the case? Why do you think we are sort of deviating from how we started? Because if you look at the Constitution of India and several discussions related to it, we often find that there is no particular consideration that person need not belong to a particular social community, they need not belong to a particular time group. But what do you think about this? What are your considerations about this?

Mr. Moosa Izzat

So I think firstly, we need to question whether non-legal consideration, this statement that we, even I as a student did take for granted, which is that in establishing the citizenship regime initially or in drafting the constitution, that no non-legal considerations were at the forefront. And why I say that is because around the same time when I was writing this paper, I had come across this article by Abhinav Chandrachud on and I just looked it up right now I think it's the secularism and the citizenship amendment act where he argues that even at the time of the conflict so initially when the constitution was drafted the citizen provisions regarding citizenship so citizenship was covered in articles 5 to 11 and this was the citizenship sort of regime for India until 1955 when the Indian parliament enacted a statute for this purpose.

So what he argues is that even during this period, a lot of political considerations about which group of people are favorable to India and which group of people are not and often on the basis of even religion, these considerations were taken into account when drafting these provisions. And not to get into too much detail about this but it was along the lines of, primarily, the dispute was along the lines of which people from the Indian subcontinent, like who were in what is present-day India and who had traveled to Pakistan, whom among them, if they returned, would get citizenship, and vice versa. About Indians who had fled to Pakistan and returned. And also, people, immigrants from Pakistan who had entered India. So there were some considerations on the basis of religion even at this time. So what we see is that it is just that the considerations themselves might have changed depending on the politics of the time. So the best examples of this starting from the time of the drafting of the constitution itself is obviously how the partition was handled.

But later on, when in the Assam Accord or when the Citizenship Act was amended to have a separate provision for Assam, this was an example of where other political considerations, at that time it was the uproar against Bangladeshi immigrants in Assam, they were a driving factor to determine what the citizenship law in India or particularly at least in Assam would be. So then decades later, what we see is a similar repeat of this sort of trajectory with the CAA. So I would say that taking non-legal or political considerations into account when drafting our citizenship law has been a characteristic of the Indian citizenship regime from the beginning.

Mr. Atharva Chandra

So now that I understand this issue better, I guess political considerations sort of always find their way into the policy that sort of leads our nation. They may not necessarily be wrong, but they do find an expression. 

Mr. Moosa Izzat

Yes, yes, absolutely.

Mr. Atharva Chandra

But moving on, in your paper, we as readers find a very proper understanding of how the Citizenship Act has affected the Chakmas in Arunachal Pradesh. And when we sort of look at the social situation across our country, there are several ethnic groups trying to get citizenship but they are being denied because of similar considerations. So in this contemporary situation where we are finding a growing rejection of entertaining refugees and providing them with citizenship, you as a scholar, how would you state that what inherent human rights does a person possess? Why they should be given this opportunity, this opportunity of citizenship?

I think, yeah, I as a student, and I would like to almost make the clarification there, is that I as a student, I'm still trying to figure out where does citizenship fit into the human rights regime and why I say I'm still trying to figure this out is because inherently there is no right to citizenship that is recognized in either the Indian constitution or in the majority of international human rights instruments, whether it's the ICCPR or the UDHR or the, or sort of, or wait, I'm forgetting some of the other convention's names. So citizenship itself is not recognized as a right. So then we have to see that when there are communities that are seeking citizenship and they are in, as we might argue, unjustly being denied citizenship, what are the other rights, already recognized rights that are being violated? There what we find is that it's often not in the refusal to grant citizenship itself, but sort of the stigma that comes with it and also the ill treatment of these communities that comes as a side effect of this refusal. results in the violation of rights. What I mean by that is, let's take the Chakmas, for instance, because that is sort of the only group of refugees where I have done some amount of research on. That I've done some amount of research on. So you would find that in the 1990s, the second Supreme Court decision that I've addressed in my article, which is NHRC versus Union of India, whole reason that case came about was because the all Andhra Pradesh student union had threatened to forcefully remove Chakmas from the state. Now this is undoubtedly violative of several of their rights. Now we need to start sort of trying to decipher what rights are they violating. One if they are using intimidation and they are using threats. they could even be violating the right to life directly because there's a threat of violence when they're talking about forcefully removing someone. But also, if we look at how they were trying to actually force the Chakmas out, one of the things they were doing is they were imposing economic sanctions. Now these economic sanctions affects a Chakma's right to work, a right to their livelihood, a right to food, because again, they are being barred from accessing sort of the... local economy, which inadvertently and sort of indirectly again affects their right to life. So this is, I think, the foremost way in which in that specific example, at least the Chakmas were being deprived of a constitutional right. Other rights, if you think about, includes, for instance, the freedom of movement.

Now, that is again, directly sort of, barred for non-citizens in the sense that non-citizens are do not have access to the freedom of movement under the constitution but also in practice what happens is a Chakma if he leaves Arunachal Pradesh there is no guarantee that when he is returning whether he will be given the recognition of being a resident and a legal migrant, their presence in the region is in the state and the city in the region is being contested. So there are many side effects of rejecting citizenship to certain communities, especially when these communities have been living legally in the country for so many decades. When you deny them citizenship, the stigma that comes with it and sort of the license that many organizations and other communities get to. exclude them, to marginalize them, to even oppress them, that results in an indirect violation of their fundamental rights.

Mr. Atharva Chandra

Alright, so essentially if I understand you correctly, what you're saying is that the denial of citizenship may not be a result of social ostracization, but it is something which can cause social ostracization as a consequence. 

Mr. Moosa Izzat

Absolutely, and I think that's where it becomes a cycle where you don't grant them citizenship. So their residents now in the eyes of the population there lack some legitimacy, but that sort of compounds the already existing hatred that some communities might have towards the refugee population. So that becomes cyclical because this in turn, this sort of hatred towards migrant populations that exist. as we are seeing in the case of the Chakmas or as we saw decades ago in Assam, does fuel the law itself. So then it becomes a cycle where people oppose the granting of citizenship and therefore the community is not granted citizenship. And then because they are not granted citizenship, people are given another additional reason and an impetus to oppress and malign them.

Mr. Atharva Chandra

All right, Moosa. So one question which is coming to my mind here is when we often see that how the communities in Assam or how the student union in Assam has opposed the provision of citizenship to the Chakma refugees. But unfortunately, the government of Assam, or if we just expand our scale, the government of India they do receive their votes, or they are at the mercy of the people who live in Assam and who are opposing the Chakma refugees and the whole issue of citizenship for Chakma refugees. How would you suggest that as a society, how do we balance these needs? And how do we sort of build a culture where we do not see such groups, these ethnic groups like Chakma group? As you know, in a way where we see them as us versus them, rather than, you know, how do we try and balance this issue? How do we try and balance this issue in policy and how it is being expressed in policy?

Mr. Moosa Izzat

Yes, so I think it's a larger issue that's plaguing the entire world any country if you see like as in any major country where there is an influx of refugees, there is some amount of resistance to the influx of refugees and in and different states have responded differently to this. You might we see often that certain European states are now even they are leaning more towards. sort of closed door policy and you might argue that is a direct effect of their own like of their own sort of populations rejecting these refugees. But what we also see even in India is that when it comes to a lot of social issues, the law becomes the first instance of recognition. Where for instance, if you look at homosexuality. It's a sort of the fight against homophobia might be decades old and it absolutely is. And there are several activists and personalities who have sort of fought against the stigma that exists against homosexuality for decades. But I think what happened when the Supreme Court decriminalized it is that there was some amount of legitimacy, the legal legitimacy, I think, may pave the way for a sort of social legitimacy. Because after the Supreme Court decriminalized it, we see that even movies and in sort of in pop culture in general, there's an acceptance that there once wasn't. Now, this is not to say that homophobia is no longer an issue or that homosexuals will not face the discrimination that they used to. It is just to say that what happens is that the dominant voice now becomes at least to some extent more in support of the community than it was earlier. So as law students or lawyers or in the legal field, we might struggle to influence society or like the politics of our country in any way that is outside the law. So what we can instead focus on is the law itself. So the law is somewhere where we as students, we have some amount of influence. And again, I do not mean to overstate the influence we might have, especially when in times such as ours. We have the influence to discuss, propose changes that might take, again, another couple of decades to be implemented. 

Now, in the case of migration or refugees the stigma that exists against refugee populations, I think the most, the simplest thing I can think of is the introduction of a refugee protection regime because India does not currently have a refugee protection law and it does not have a mechanism for Refugee Status Determination or RSD as it is used in, as a term is called in many jurisdictions. So India doesn't have a system for this at all. And what we need to do I believe is that at least the process of identifying someone as a refugee, that cannot be done on the basis of any sort of considerations of the local community. The point at which the local community's concerns can be taken into consideration is when is at the stage of settling these refugee communities. Because there you might be careful not to settle them in areas where indigenous groups are already in sort of danger of the culture's extinction. So that is the stage at which you might still give some importance to the sentiments of the local community. But at the threshold of determining whether or not an individual is a refugee, you have to do it on the basis of certain more objective considerations or at least considerations that are specific to the individual in the sense that like how most refugee legislations or even legislation on forced migration because I am careful to use a wider term here and I am saying forced migration because refugee is the term refugee is particular specific to people who are facing persecution along the 405 listed grounds. But when you're talking about forced migration, it's a wider term that refers to all migrants who are not moving from one country to another out of choice, but due to certain external factors that are outside their control. So we need to first have a mechanism to identify refugees and forced migrants. And then perhaps when we are at the stage of settling these refugee populations, then on a case to case basis, you might have some scope to look at what are the region's requirement and what are the local populations in that region, what complaints might they have against resettlement of refugees.

Mr. Atharva Chandra

And from your answer, there are actually a few questions coming to my mind. First of all is that Moosa, when we look around in the present culture, when we look around and we see the Supreme Court entering into new and newer realms of decision making and policy making regarding different social issues, as you said, the Supreme Court's decision in homosexuality or if we look at the current events of the same-sex marriage and the arguments pertaining to it, which were discussed and deliberated upon in the Supreme Court, or when we look at the Supreme Court and its decision in the third case as provided in your paper, we often see a very strong resistance from people or from the government itself that the Supreme Court cannot enter this realm and it cannot, you know, give out decisions which decide the future of this realm and how decisions will be taken regarding these social issues because this sort of disturbs the balance of power where these issues fall within the lawmaking or the policymaking power of the government or of the executive or of the legislature because they are a representation of the people. as it has been said time and again that the people must have a say in lawmaking or decision making regarding these particular issues. How would you like to answer this conundrum wherein people accuse the judiciary of disturbing the balance of power or do you believe that it's a right assessment of these decisions where the Supreme Court enters social issues, Supreme Court enters the realms regarding social issues?

Mr. Moosa Izzat

I think it's harder for me to comment on this general trend of the judiciary entering into questions of policy, but at least when it comes to questions around citizenship, what we are seeing is that the majority of these judgments that we might discuss or like that I have cited in my paper are also instances where there was definitely no question of judicial overreach because it was not an instance where the Supreme Court was going past its sort of basic mandate because, okay, let's at a very high school level understanding of the separation of powers also, it is the court's duty to interpret the statute. And if you look at the judgments in the NHRC case or the 1996, sorry, the 1996 judgment was the NHRC case or the 2015 order after the case filed by the Chakma coalition, you see that the order has restricted itself to a very straightforward legal question. Because in the case of the Chakmas, the legal question was in 1996 at least, what was it? It was whether. the state government or officials within the state government, whether they had the authority to reject the citizenship applications at that state itself or are they obligated to forward it to the central government. Now it was a very straightforward reading of the citizenship rules that informed the decision that the state government must mandatorily forward these applications. to the central government. So again, even in 2015, what we see is that this process of receiving the applications and then forwarding it and then for the central government to act upon it has itself not taken place. So the Supreme Court was restricting itself in a very strict manner to what the statutes themselves say. It was restricting itself to the Citizenship Act and the citizenship rules. In fact, in these cases, it did not even go into any constitutional principles. Whereas even though that would be sort of the other generally accepted role of the Supreme Court being the protector of rights and the sort of the watchdog of the constitution. So it did not even go into this role.

So I think as far as at least the Chakma refugee crisis is concerned or in many other situations where there are migrants seeking citizenship, the operation of law, if it happened in a very straightforward manner, that would be sufficient for them. And what is sought from the Supreme Court might not be that they interpret the law in a very expansive manner. but that they just ensure that the administration is implementing the law as the legislature intended.

Mr. Atharva Chandra

All right, all right, all right. So I guess that really answers all these concerns where people sort of attach the actions of the judiciary to overseeding its boundaries and the separation of powers, rather these decisions given by the Supreme Court, particularly related to citizenship, are legitimate decisions rather than judicial overreach.

Mr. Moosa Izzat

Yes, if I could clarify, what I'm saying there is that, at least in the case of Chakmas, there really was no reason for the Supreme Court to have to do any sort of overreach. And even if it is desirable in some instances for the Supreme Court to do so, this is an instance where a very straightforward application of the statute is also sufficient. So if the Supreme Court does that and nothing else, which is that it... it expects the government at the central level and the state level to follow the statute to a T, then itself it would have done its job and fulfilled its responsibility vis-a-vis the Chakmas.

Mr. Atharva Chandra

But Moosa, we see, we see how the government and the actions taken by the national government after the judgments of the Supreme Court as early as in 1996 and again in 2015 regarding the issue of citizenships to Chakmas, how this is directly in contravention of the rationale or the judgments being given out by the Supreme Court. And while there is an unofficial justification of the same, this does expose a minor problem that judiciary in such matters, there are certain limitations to the decisions being given out by judiciary because if the national government, whatever reason it may provide, it just does not concur to the rationale given by the Supreme Court. It does not follow through with its decisions. How do you think we can make the executive or the legislature more accountable, whether it may be action from the courts itself or whether it may be actions arising from the civil society? But how do you think we can introduce and establish greater accountability?

Mr. Moosa Izzat

The changes that can be made within the ambit of the existing law, if nothing else. So the civil society's role is enormous for sure, but that might come at a later stage. What we can look at very clearly is what the Supreme Court could have done differently. And what I mean by that is that if you see the 1996 order, the direction was simply that the application must be forwarded to the central government. And then in 2015, again, the Supreme Court added a caveat that procedural requirements, if they are met, that the government should finalize the conferment of citizenship. Now, when I was going through sort of the daily orders of the Supreme Court in the 2015 case, I saw that after 2017, there were no more hearings of the matter. So until 2017, there are a few follow-ups by the Supreme Court very rarely because and the reason those follow-ups were necessary was because in the order itself the Supreme Court gave the government three months time to finalize the conferment of citizenship. We see that this sort of nothing happened in three months but nothing happened even in the two years that the Supreme Court gave the government the opportunity to implement it. But what we see is after 2017 the matter is just not listed in the before the court anymore.

Where we can start is that if the Supreme Court had given a more straightforward, stern, direct order, maybe there would have been some difference. What I mean by that is that in 1993, when the Chakmas were seeking citizenship under the special provision that is meant for Assam, the Supreme Court was very clear in denying the Chakmas citizenship under Section 6A. 

You could say that... Strictly speaking legally that might have even been the right decision because they were not ordinary citizens of Assam And if you look at if you follow section 6A to T, then they are not eligible for citizenship but the Supreme Court was very clear in setting this out and rejecting their claim to citizenship, but when in 1996 they were making a claim to citizenship through a mechanism under which they were eligible for citizenship we don't see the Supreme Court being as comfortable granting them citizenship. And now I understand that there is one reason for that, which is that in 1996, citizenship is being claimed under Section 5-1, which does give some leeway to the government to decide when someone gets citizenship, whereas other provisions, including Section 6-A, are sort of situations where the law is directly applicable and there's no scope for discretion on the part of the government.

So what the Supreme Court does in 1996 is it gives sufficient reverence, so to say, to the government's discretion and says that, okay, at this stage we are only directing that the state government has to pass on these applications to the central government. But at least in 2015, when 19 years have passed and no action has been taken, I think it's a reasonable expectation. that the Supreme Court at this point takes a more stern approach and a less forgiving approach. And what I mean by that is even at this stage, if the Supreme Court does not believe that it is within its power to directly grant citizenship to Chakmas, it can, what it could do is be more prompt in ensuring that its own order is implemented. And we have seen the Supreme Court successfully do this in other cases where A simple example would be to insist that central government employees submit affidavits on a periodic basis to show that they have implemented an order. So if nothing else, if this was done, and another tactic that we see the Supreme Court often employing is to threaten to call a high level official to the court. or in some cases actually call a high level official to depose before the court. So these kinds of, what I'm saying is there are certain tools in the arsenal of the Supreme Court that it very regularly uses that it did not in this case. So even before we talk about what civil society can do or before we talk about the Supreme Court.

We can talk about very basic level, like simple implementation of the Supreme Court order by the government and how the Supreme Court using mechanisms that it already has in its arsenal, how the Supreme Court can implement these tools to enforce the statute.

Mr. Atharva Chandra

I understand so we need not need a ram where a simple hammer may do the trick.

Mr. Moosa Izzat

Absolutely Yes

Mr. Atharva Chandra

But in your answer Moosa you refer to section 6A of the citizenship act. This finds mentioned several times in your paper also. For our listeners could you please explain what section 6A of the citizenship act and what the concept of ordinary residence is? and why it is being accused of being unjust because paradoxically the residents in question was not even in existence for it to actually pass such qualification and how this is sort of you know affecting the Chakma population in Arunachal Pradesh.

Mr. Moosa Izzat

So basically Section 6A applies to people seeking citizenship in Assam. And there are two requirements that are set upon them. One is that they should have entered Assam before 1966. There is a cutoff date mentioned under subsection 2 of Section 6A which is that all persons of Indian origin who came before the 1st day of January 1966 to Assam from the specified So this is the first requirement that they should have entered Assam before this cutoff date in 1966 from the specified territory. In a minute I will come to what the specified territory is. And secondly, the second requirement is that there should have been ordinary residents in Assam from this date, up until the date of the determination of the citizenship. So the confusion that arises is that Chakmas entered India in 1964. They were settled in this region called the North Eastern Frontier. Sorry, let me just look up the full form. So I don't say it wrong, North Eastern….

Mr. Atharva Chandra

…Frontier Agency 

Mr. Moosa Izzat

Yes, yes. So the Chakmas entered India in the Chakmas that we are mainly talking about. Right, so they entered India and then as part of a policy decision, the Indian central government settled the Chakma refugees in this region called the North Eastern Frontier Agency. Now the tricky part is that at this time when they were settled there, North Eastern Frontier Agency was a part of Assam or at least was under the control of Assam. But what happened subsequently is that the region that they were residing in later became the Union Territory of Assam, Arunachal Pradesh, sorry, and after that it eventually got the status of a full fledged state. So by the 1980s, they were no longer in Assam, but they were in this new state that had arisen called Arunachal Pradesh. The difficulty is that when they then applied for citizenship under Section 6A. They meet the requirement of having entered Assam from the specified territory because the specified territory includes erstwhile East Pakistan and what is today Bangladesh. And they would otherwise also have met the second requirement because the region they had been settled in was actually at the point of their entry into that region it was a part of Assam. But subsequently it was removed from Assam and it became a separate state. So what happened is because the law was amended in 1985 and the requirement for ordinary residents looked at whether they are residing in Assam as it was in 1985, the Chakmas along with other communities could not benefit from this provision.

And I think Chakma refugees are peculiarly situated in a scenario where they were adversely affected by this amendment. And what I mean by that is, is that even if you look at the object of the amendment, what was it effectively achieving? Effectively, it was achieving that if there is a migrant who has entered Assam post 1966, they no longer have and they are no longer eligible for citizenship. Now, if you look at section 6A, the latter part sort of provides a path to citizenship for those who entered Assam between 1966 to 1971, but that's beside the point. The point is, if you entered Assam pre-1966, you have a relatively easy path to citizenship under section 6A. The chakmas are affected because they ought to have been within that bracket, if not for the fact that they were, the region that they belong to became another state. So I think what is unjust here is the fact that no exception was carved out for communities like the Chakmas. That no exception was carved out wherein, if you have entered Assam, pre-1966, but are residing in a region that was Assam earlier but has now become another state, even then you ought to be eligible for citizenship because in terms of the class of refugees that you belong to, you belong to effectively the same class of refugees as someone who is now in Assam, I mean in present day Assam or in Assam as it stood post 1985, you're in the same class of refugees as them. So I think the... very blatant unjustness that they have suffered is because there's no exception that is carved out for these communities. Now, whether the requirement of ordinary residents itself is unjust, I think that's a much larger question and then we'll have to go into the history of like the Assam Accord and I don't think I'm personally also very equipped to answer that effectively.

Mr. Atharva Chandra

Definitely and thank you so much Moosa for such a comprehensive answer. I think this clarifies a lot for me too because there were certain doubts and lack of understanding related to this particular topic when I was reading your paper. But moving on, while there is, while a major part of your paper discusses these particular aspects, another thing which it brings up is the Citizenship Amendment Act and as a layman and when I was reading your paper, the Citizenship Amendment Act or if I may refer to it as the CAA, it has been popularly pushed across the media as an Act which will act to provide safe refuge to communities who belong to certain groups. And if we look at your paper, if you look at the nature of the Chakma community, they are Buddhists and there is a consideration for Buddhists in the Citizenship Amendment Act. But how, according to you, how does the CAA fit in this entire situation and what are its consequences which are, you know, arising from its application related and how are they affecting the Chakma community?

Mr. Moosa Izzat

So this is where in my paper what I have discussed an earlier version of the CAA, which was the bill in 2016, which did not have this dedicated provision for granting citizenship. So what the earlier version of the bill, what it did was, it removed the category of person that we are talking about which is Hindus, Sikhs, Christians, Buddhists and I am sorry I think I might be missing let me just rephrase that once.

Mr. Atharva Chandra

It's alright. I think the Act refers to Hindus, Sikhs, Buddhists, Jains, Parsis and Christians.

Mr. Moosa Izzat

Yes, so what the earlier version of the bill did was for people from these communities who are entering from Afghanistan, Pakistan and Bangladesh prior to the cutoff date. 

Right, so I mean, instead of elaborating it, I would just say that so for the concerned categories of people, what the CAB's first version did is that it excluded them from the definition of illegal immigrants. And why that was important is because under section five and section six of the Citizenship Act, which are the provisions that deal with citizenship by registration or citizenship by naturalization, you are not eligible for citizenship if you are an illegal immigrant. So now they are, if ones are excluded from this tag of being an illegal immigrant, they can, they could then apply for citizenship by registration under section five, under section five. So this is what the earlier version of the bill in sort of, in very simple terms, this is what it was achieving. 

Now, even though it was tabled, as soon as it was tabled, the Arunachal Pradesh state government opposed it. And so did the student unions in Arunachal Pradesh, saying that this will be like a pathway to citizenship for Chakmas. So they had a very sort of specific reason, Chakmas and Hajongs and other categories of refugees. So they had a very specific reason to oppose the CAA, which was unlike the CAB at the time, sorry, which was unlike what the majority of the other concerns that you were talking about. It was sort of different from that. Their issue was that it was too expansive, that it would give a pathway to citizenship to Chakmas, who they did not want to give citizenship to. So what happened is the 2016 bill, over time it lapsed because the Lok Sabha did not pass the bill, it lapsed and then in 2019 it was reintroduced. Now the difference in 2019 when it was reintroduced is that a dedicated provision was introduced for granting citizenship to the concerned categories of people.

They were removed from the definition of illegal immigrants, so they could now apply under Section 5. But the 2019 version of the CAB, what it achieved is, it granted them a dedicated provision through which they could apply for citizenship. Now practically speaking, as I have explained in the paper, this did not substantially change the path of citizenship for the concerned category. Because once the issue of being tagged as an illegal immigrant was removed, they could just as easily apply under section 5. What it did do was that Section 6B, which was the provision it introduced, clause 4 of that excluded from the ambit of the provision those who are in the inner line permit. Now to simply put, basically it covered also the region that is most of Arunachal Pradesh. So effectively what happened is, Chakmas could not take the benefit of Section 6. Now they would still get the benefit of the other provisions like safety from designation as illegal immigrants.

But if you look at the case of the Chakmas, they were never at risk of being termed as illegal immigrants anyhow. So what their loss here is, is that there is a new provision that is a dedicated provision for these communities to get citizenship. And if in the future the government proposed or introduced a sort of en masse citizenship drive, the Chakmas could not register for this drive. And this might seem like a very hypothetical situation, but in practice, this is the only way such large numbers of migrants who come under the purview of the CAA, like this is the only way they would be granted citizenship. that if there is a sort of a notification issued by the Ministry of Home Affairs that citizenship applications under ex-farm has to be submitted to the local offices by the people who fitting this criteria Chakmas are no longer eligible to apply under this. So what has happened is while we can't sort of conclude on what is the motivation behind letting that bill lapse and another bill be introduced with this specific amendment, we can comment on what is the effect of this. So the effect of this is that the benefit that certain communities are getting from the CA, the Chakmas are no longer eligible for that benefit.

Mr. Atharva Chandra

All right, Moosa. So even after all these judgments by the Supreme Court and all this discussion and even an entirely new bill, we do not see that there is a just conclusion to the status of Chakmas in India. And before we end this podcast, the last question which I would like to refer to you is, how do you suggest that we build and establish a framework which actually accommodates these communities? and these communities who have shared socio-political and historical links with India in the past and not completely alienate them as someone absolutely unwanted. How do we try and establish a framework which does justice to these people?

Mr. Moosa Izzat

So on this I think I have a short answer which is applicable, let's say specifically to the Chakma communities, which is that nothing much has to be changed. We just literally have to implement the law, the statute as it exists now and the Chakmas, most of whom are already citizens, as I have explained because most of them are citizens by birth and the remaining small percentage of Chakmas that remain, they would simply have to, their citizenship applications have to be processed by the government. This is all that has to be done. on the legal front for Chakma refugees. If you are talking about refugees, refugee populations across India or other categories of forced migrants, we need to first introduce a legislation on refugee protection or on the protection of forced migrants. We do not have any refugee protection regime. We don't have any provisions that deal with. like the protection of the rights of migrants or forced migrants or anything of that sort. Currently, the categories that exist are if you're not a citizen, you're a foreigner. And if you're a foreigner who has entered India without documents, or if you're a foreigner who has entered India with documents, but your documents are no longer valid, you're an illegal immigrant. That definition is given in the Foreigners Act of 1946. So effectively, these are the only three criteria that are laid down by law.

Now on an ad hoc basis there are some communities that are given refugee status. One of the ways this is done currently is through the UNHRC, so basically the Refugee Office of the United Nations. But there is no statutory protection for refugees or other categories of forced migrants under Indian law. So I think first and foremost to achieve any sort of justice for these refugee communities, we need to introduce a law for refugee protection. And what we need to implement is a mechanism for refugee status determination, which is again the term I was using, RSD, which is again where we have a very ad hoc, we do it on a very ad hoc basis. Like we as in India, we do it on a very ad hoc basis currently where some community, for some communities, the refugee status determination is done exclusively by the United Nations. For some communities, it is done by the Ministry of Home Affairs. And other communities are simply not, they don't go through that process at all of being recognized or derecognized as refugees. So I think before we even get into the question of how local sentiments and concerns and demographic concerns have to be balanced with our duty towards our refugee populations, we need to have... legislation to determine who is a refugee and what rights these refugees have. And why I say that these concerns come later is because as I said earlier in response to another one of the questions is that I think it is at the stage of settlement of refugees, which comes at a later stage, that concerns of the local population have to be sort of taken into account. So yeah, I think I... covered what I had to say about this just a second. And finally, I would also add that this is as far as refugee status determination is concerned, or the protection of the rights of the refugees are concerned. But even at the stage of citizenship granting, what we would need is for at least the statute that exists as of now. And this is pre-CAA, since the CAA has not effectively come into force yet. even pre-CAA, the statute as it exists, at least those communities that are eligible for the benefit of the provisions granting citizenship, it has to be implemented. So there is a lack of implementation. So I think we have to resolve that. And then we can come into the question of where these refugee populations have to be settled. And that is where some discretion may be given to the executive and the administration to decide based on local concerns and demographic concerns.

Mr. Atharva Chandra

All right. All right. All right. All right. Very well then. Thank you so much, Moosa, for taking out the time and for entertaining our request to enter into a conversation with us regarding the status of Chakma refugees and the issue of citizenship for them. I believe for me personally, as a student, this has been a podcast where I got to learn a lot. To hear all this such depth of knowledge from someone whom I can really you know try and identify and associate myself with someone like you is actually a very good acts as a very helpful guide for me and I really hope all the listeners and the students among amongst all our listeners to try and explore and sort of put efforts to try and influence the discourse regarding this particular issue in order to you know in order to help and benefit people from the Chakma community who are suffering right now because of very inherent because of lacking citizenship. Thank you so much for taking out the time.

Mr. Moosa Izzat

Thank you so much for having me. It was a pleasure. And also, the discussion has sort of given me a lot of points that I could explore and like in the future, because I realized that like there are still so many issues related to Chakmas particularly, but also other communities in, refugee communities in India, which I could sort of explore hopefully and This conversation brought to light some of these issues for me. So thank you so much.

Mr. Atharva Chandra

All right. We are very happy that we could assist you in understanding this issue on a much more deeper level. And for our listeners, this is episode 5 of the CCAL podcast, Read and Talk. We will soon be putting out other episodes. We hope you had an experience which was educating for you. And we hope to see you soon. Thank you so much.