2020 Statelessness & Citizenship Review 2(1) Foreigners Act, 1946 was enacted, 10 which barely provided for any modern substantive law or procedural law guarantees. It is relevant that s 7 of the wartime legislation — the Foreigners Act, 1940 (repealed) and s 9 of the Foreigners Act, 1946 (currently in force) both provide for a reverse burden of proof, ie the person accused of being a foreigner is required to establish that he or she is not a foreigner. 11 The Foreigners Act, 1946 was judicially found to give far-reaching powers to the Executive, 12 because foreigners were regarded as having no rights. However, the partition of British India into secular India and the Islamic Republic of Pakistan — then comprising of West Pakistan (now Pakistan) and East Pakistan (now Bangladesh) — in 1947 led to further migration (largely of Bengali Hindus) of people into Assam, which was part of secular India. 13 There are no confirmed statistics on the scale of the migration that took place; however, it is argued that many Hindu Bengalis had crossed over to Assam from then East Pakistan. This led to the enactment of the Immigrants (Expulsion from Assam) Act, 1950 in order to protect the indigenous inhabitants of Assam. 14 The Immigrants (Expulsion from Assam) Act, 1950 provided for the expulsion of a ‘foreigner’ from Assam if their presence was ‘detrimental to the interests of the general public of India’ but did not apply to any person who had fled from East Pakistan on account of civil disturbances. 15 The 1950 Nehru–Liaquat Agreement (‘Nehru–Liaquat Pact’) allowed minorities from India and Pakistan the freedom of movement and assurance that they would get back their immovable properties if they returned by 31 December 1950. 16 In the year 1951, the government of India also ordered the preparation of the NRC for Assam — an exercise of enumeration that is said to have been completed in 20 days. 17 Thus, while the Nehru–Liaquat Pact guaranteed safe passage, many Indian families did not return until after the 1951 census-cum-NRC exercise was complete in March, 1951. 18 Consequently, those who did not return were left out from the 1951 Census. Thus, for this and many other reasons including the impossibility of travelling vast tracts of lands in the geographically challenging terrain of Assam, the NRC of 1951 excluded many. It is this 1951 NRC that today forms a key determinant in whether the residents of Assam are in fact Indians. The power to identify foreigners remained the exclusive preserve of the ‘Central Government’ under the Immigrants (Expulsion from Assam) Act, 1950 as well as the under the Foreigners Act, 1946 — the former being a special law 10 11 12 13 14 15 16 17 18 ibid 150–51, citing Foreigners Act, 1946 (India) Act No 31 of 1946. Due to the shared history, the almost identical Foreigners Act, 1946 (n 10) applies in Bangladesh and Pakistan. See Bawalkhan Zelanikhan v B C Shah, [1958] AIR 1960 Bom 27 (Bombay High Court). This migration was in addition to those migrations that had been encouraged during the British rule for commercial reasons. The need for cheap labour in Assam Valley fuelled a policy of migration to Assam. Immigrants (Expulsion from Assam) Act, 1950 (India) Act No 10 of 1950. ibid ss 2, 2(b). Agreement between the Governments of India and Pakistan Regarding Security and Rights of Minorities (Nehru–Liaquat Agreement), India–Pakistan, 1 India BTA 243 (signed and entered into force 8 April 1950) art B(v). Ipsita Chakravarty, ‘Why Did Assam Prepare the 1951 NRC, Which Has Become a Touchstone for Citizenship Today?’, Scroll.in (online, 27 July 2019) <https://scroll.in/article/931879/why-did-assam-prepare-the-1951-nrc-which-has-become-atouchstone-for-citizenship-today>. See Rafiul Ahmed, ‘Latitudes of Anxieties: The Bengali-Speaking Muslims and the Postcolonial State in Assam’ in Asia in Pinar Bilgin and L H M Ling (eds) International Relations: Unlearning Imperial Power Relations (Routledge 2017) 48. 115