It is but queer that when the legal world is humbled by the demise of Mr AG Noorani, a titan in constitutional law and a stalwart in his own right while championing the rights of the citizens of India, particularly that of the marginalised sections, should communalism and majoritarianism, spring its ugly head in Assam.
While coming across many of his acute theses on the subject, I found that he had rightly stated in an article titled Ambedkar’s Warning published by Frontline on 5 July 2017, "Proponents of Hindu supremacy knew that democracy could be used to establish a Hindu Raj. They and their followers have sought to use the vote for ends of power using the Hindutva card."
When tales of Partition evoke horror, the terror of it continues to live in Assam, highlighted most recently in the persecution of ‘Miyas’ — the colloquial term often used for Muslims residing in the state and belonging to the Bengali-speaking community, particularly hailing from the erstwhile Mymensingh district of Bangladesh.
History and Geography
Mymensingh was one of the largest districts of undivided India. It was surrounded by the Garo Hills in the north and the forests of Bhawal Madhupur in the south, with the Meghna River originating from the Brahmaputra River in the west. Most modern historians agree that the ancient Bengal state was comprised of Greater Dhaka and Mymensingh districts.
With the ensuing tragedy of the partition of Bengal in 1905, of India and Pakistan in 1947, the creation of Bangladesh in 1971, and the North-Eastern Areas (Reorganisation) Act, 1971 for the territories of Assam, the 'Miyas' on this side of the border got repeatedly displaced, more so because of repeated floods and abject communal tensions in the Brahmaputra Valley.
Beginning in 1905, a wave of settlers from East Bengal began making their homes in the fertile, riverine tracts of the Brahmaputra Valley, an effort actively encouraged by the colonial government to boost agricultural output. This influx of immigrants saw the population quadruple between 1905 and 1921.
However, this migration didn’t stop with the end of colonial rule, sparking tensions that culminated in the Assam Agitation of 1979. Fueled by rising discontent, the movement, spearheaded by the All Assam Students Union (AASU) and the Assam Gana Sangram Parishad (AGSP), sought to address what they perceived as the threat of illegal immigration. The agitation was marked by severe unrest, including the horrifying Nellie massacre, where over 10,000 Bengali-speaking Muslims ('Miyas') were killed in Nagaon district.
The turmoil eventually led to the signing of the Assam Accord in 1985, a landmark agreement between the agitation leaders and the Government of India, under which, individuals who arrived in Assam before 1 January 1966 and were listed on the 1967 electoral roll were to be regularised.
Those who arrived between 1 January 1966, and 24 March 1971 (a stipulation outlined in Clause 5 of the Memorandum of Settlement) were subject to detection and removal under the Foreigners Act of 1946 and the Foreigners (Tribunals) Order of 1964. The Accord also stipulated that any new arrivals from 25 March 1971 onward would face detection (still ongoing), removal, and expulsion.
The 6A Questions
To implement the Assam Accord effectively, Section 6A was added to the Citizenship Act of 1955 in 1985. Finalised on 15 August 1985, it was a collaborative agreement signed by both the Union and state governments, along with the leaders of the agitation.
Parliament amended the Citizenship Act of 1955 to include Section 6A, aligning with India's policy decisions rooted in international agreements such as the Indira-Mujib Treaty of 1972 and the Nehru-Liaquat Pact of 8 April 1950. This amendment was widely accepted by all involved parties and the agitators themselves.
The amendment was introduced not just in alignment with the 1985 Memorandum of Settlement (MoS), but also to fulfil the requirements of the two international agreements. Under Article 253, the Parliament holds the sovereign authority to enact laws across any part of India for implementing treaties or conventions. Additionally, Article 51 places an obligation on the state to strive to promote respect for international law and treaties.
Given these provisions, the argument raised by the Petitioners in the “6A case” questions the constitutional validity, legality, and propriety of Section 6A of the Citizenship Act of 1955 and the Assam Accord is without merit. The final decision on this matter is currently pending before the Constitution Bench of the Supreme Court of India.
Present-day Tensions
The recent incidents in Assam are deeply troubling.
In Sivasagar district, tensions erupted after allegations were made against the Marwari community in the wake of a brutal assault. Thousands took to the streets in protest, but the response from the police and administration was inadequate. The Marwari community was later coerced into offering a public apology at an event attended by state minister Ranoj Pegu and the district police superintendent.
In another ghastly incident in Dhing in Nagaon District, a 14-year-old schoolgirl was allegedly gang raped and left in critical condition on the roadside. This heinous act sparked widespread outrage and protests across Assam.
Meanwhile, the BJP and its allied groups have already been stoking animosity against the 'Miya' community. Local factions claiming to be “indigenous inhabitants” in Sivasagar have issued various threats, demanding that the community leave Upper Assam within seven days. The ever-present hostility has been further inflamed by the remarks made by Chief Minister Himanta Biswa Sarma, both in public gatherings and on the floor of the State Assembly.
One particularly controversial statement from the CM came during a BJP executive meeting in Guwahati, where he allegedly referred to himself as a "mad dog." On Tuesday, Sarma doubled down, stating openly that he would take sides and would not allow 'Miya' Muslims to "take over" Assam. When Opposition members accused him of being biased, Sarma brazenly replied, "I will take sides. What can you do about it?"
In continuation of his rampant Islamophobic statements, the CM added, “According to the 2011 Census report, the population of Assam was 3,12,05,576. Of them, 1,91,80,779 were Hindus; 1,06,79,345 were Muslims, and the rest were others. The percentage of Hindu population was 61.47, and that of Muslims was 34.22. After the independence of India, the percentage of the Muslim population in Assam was 22 percent in 1951. It rose to 24.66 percent in 1961, 24.56 percent in 1971, 28.43 percent in 1991, 30.09 percent in 2001, and 34.33 percent in 2011. The Muslim population rose three to four percent between 2001 and 2011. The demographic pattern is changing very fast in lower Assam, where a human disaster is in the making. There were some purely Hindu villages in lower Assam. Now those villages are bereft of a Hindu population. For instance, Kalitakuchi in Hajo was purely a Hindu village. The name of the village itself suggests that it was a Hindu village. However, no Hindu population is there in that village now.”
These statements have sparked widespread anxiety and unrest across the state, leading many 'Miyas' to flee Upper Assam. Reports are emerging of public warnings and threats, forcing them to abandon their shops, homes, and lands, all while the state government remains largely silent. Instead of addressing these tensions, the government seems to be fuelling them.
Sarma has further escalated the situation by claiming that the recent crimes against women in the state are part of a "bigger plot to grab land and undermine the identity of the Assamese people." He suggested that these crimes might have political backing and also warned that financial power is shifting away from the Assamese community.
The Governor's Report
The allegation that Assam is facing “external aggression and internal disturbance” on account of large-scale illegal migration of Bangladeshi nationals is the narrative created and established by a report dated 8 November 1998, prepared and sent by the Governor of Assam, the late SK Sinha, to the President of India.
The controversial report, used in the Sarbananda Sonowal case to justify claims of "external aggression and internal disturbance" from illegal Bangladeshi migration, was neither a public document nor based on public hearings. Instead, it relied on the opinions of select political leaders, journalists, and lawyers, leading to concerns about its accuracy.
The report, criticised as unconstitutional, fueled communal tensions by unfairly targeting Muslims and spreading the false narrative that 'Miyas' are a threat to Assam's indigenous people. Moreover, the Indian Constitution does not define "indigenous people," making the report's conclusions even more problematic.
This contention is also supported by the 'Interim Jury Report' of the People's Tribunal On Constitutional Process And Human Cost. The members of the jury comprised former Justice (retired) Madan Lokur, Justice (retired) Kurien Joseph, and Justice (retired) AP Shah, who formulated it with respect to the impact of the NRC (National Register of Citizens) process, ie, the state-wide registration of the citizens of India in Assam conducted at the behest of the Supreme Court.
The Jury Report reflected four questions, of which two related to the impugned judgment and the same are quoted as follows:
In the first question it is held that this Hon'ble court relied upon unverified and now disproved data to hold that the migration amounted to external aggression upon India.
The judgment in the case of Sarbananda Sonowal erroneously equated migration with External Aggression or invasion which, in effect dehumanised the migrants and infringe their rights to personal liberty and dignity. External aggression and internal disturbance thus became a narrative and influenced all subsequent proceedings under the Foreigners Act.
In conclusion, as argued by the late AG Noorani, in the same Frontline article, it couldn’t be more relevant today than ever what Ambedkar wrote in a Memorandum on the Rights of States and Minorities, dated 24 March 1947, which he submitted to the Sub-Committee on Fundamental Rights set up by the Constituent Assembly’s Advisory Committee on Fundamental Rights, Minorities, and Tribal and Excluded Areas:
"Unfortunately for the minorities in India, Indian nationalism has developed a new doctrine which may be called the Divine Right of the Majority to rule the minorities according to the wishes of the majority. Any claim for the sharing of power by the minority is called communalism, while the monopolising of the whole power by the majority is called nationalism. Guided by such political philosophy the majority is not prepared to allow the minorities to share political power, nor is it willing to respect any convention made in that behalf as is evident from their repudiation of the obligation (to include representatives of the minorities in the Cabinet) contained in the Instrument of Instructions issued to the Governors in the Government of India Act of 1935. Under these circumstances there is no way left but to have the rights of the Scheduled Castes embodied in the Constitution."
(Adeel Ahmed is an Advocate on Record at the Supreme Court. This is an opinion piece and the views expressed are the author's own. The Quint neither endorses them nor is responsible for them.)
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