Citizenship of India | 02 Sep 2019

In the run-up to the publication of the final National Register of Citizens (NRC) in Assam, the Supreme Court, in August, 2019 rejected a plea to include those born in India between after March 24, 1971 and before July 1, 1987 in NRC unless they had ancestral links to India.

• In any other Indian state, they would have been citizens by birth, but the law is different for Assam.
• In this context, citizenship has become the most talked about topic in the country.

How is Citizenship Defined?

• Citizenship signifies the relationship between individual and state.
• Like any other modern state, India has two kinds of people—citizens and aliens. Citizens are full members of the Indian State and owe allegiance to it. They enjoy all civil and political rights.
• Citizenship is an idea of exclusion as it excludes non-citizens.
• There are two well-known principles for the grant of citizenship:
  
  • While ‘jus soli’ confers citizenship on the basis of place of birth, ‘jus sanguinis’ gives recognition to blood ties.
  • From the time of the Motilal Nehru Committee (1928), the Indian leadership was in favour of the enlightened concept of jus soli.
  • The racial idea of jus sanguinis was also rejected by the Constituent Assembly as it was against the Indian ethos.

Constitutional Provisions

• Citizenship is listed in the Union List under the Constitution and thus is under the exclusive jurisdiction of Parliament.
• The Constitution does not define the term ‘citizen’ but details of various categories of persons who are entitled to citizenship are given in Part 2 (Articles 5 to 11).
• Unlike other provisions of the Constitution, which came into being on January 26, 1950, these articles were enforced on November 26, 1949 itself, when the Constitution was adopted.
• Article 5: It provided for citizenship on commencement of the Constitution.
  
  • All those domiciled and born in India were given citizenship.
  • Even those who were domiciled but not born in India, but either of whose parents was born in India, were considered citizens.
  • Anyone who had been an ordinary resident for more than five years, too, was entitled to apply for citizenship.
• Article 6: It provided rights of citizenship of certain persons who have migrated to India from Pakistan.
  
  • Since Independence was preceded by Partition and migration, Article 6 laid down that anyone who migrated to India before July 19, 1949, would automatically become an Indian citizen if either of his parents or grandparents was born in India.
  • But those who entered India after this date needed to register themselves.
• Article 7: Provided Rights of citizenship of certain migrants to Pakistan.
  
  • Those who had migrated to Pakistan after March 1, 1947 but subsequently returned on resettlement permits were included within the citizenship net.
  • The law was more sympathetic to those who migrated from Pakistan and called them refugees than to those who, in a state of confusion, were stranded in Pakistan or went there but decided to return soon.
• Article 8: Provided Rights of citizenship of certain persons of Indian origin residing outside India.
  
  • Any Person of Indian Origin residing outside India who, or either of whose parents or grandparents, was born in India could register himself or herself as an Indian citizen with Indian Diplomatic Mission.
• Article 9: Provided that if any person voluntarily acquired the citizenship of a foreign State will no longer be a citizen of India.
• Article10: It says that every person who is or is deemed to be a citizen of India under any of the foregoing provisions of this Part shall, subject to the provisions of any law that may be made by Parliament, continue to be such citizen.
• Article 11: It empowers Parliament to make any provision with respect to the acquisition and termination of citizenship and all matters relating to it.

Acts and Amendments

• The Citizenship Act, 1955 provides for the acquisition and determination of Indian citizenship.

• The act has been amended four times — in 1986, 2003, 2005, and 2015.
• Through these amendments Parliament has narrowed down the wider and universal principles of citizenship based on the fact of birth.
• Moreover, the Foreigners Act places a heavy burden on the individual to prove that he/she is not a foreigner.
• 1986 amendment: Unlike the constitutional provision and the original Citizenship Act that gave citizenship on the principle of jus soli to everyone born in India, the 1986 amendment to Section 3 was less inclusive.
  
  • The amendment has added the condition that those who were born in India on or after January 26, 1950 but before July 1, 1987, shall be Indian citizen.
  • Those born after July 1, 1987 and before December 4, 2003, in addition to one’s own birth in India, can get citizenship only if either of his parents was an Indian citizen at the time of birth.
• 2003 amendment: The amendment made the above condition more stringent, keeping in view infiltration from Bangladesh.
  
  • Now the law requires that for those born on or after December 4, 2004, in addition to the fact of their own birth, both parents should be Indian citizens or one parent must be Indian citizen and other should not be an illegal migrant.
• With these restrictive amendments, India has almost moved towards the narrow principle of jus sanguinis or blood relationship.
• This lays down that an illegal migrant cannot claim citizenship by naturalisation or registration even if he has been a resident of India for seven years.
• Citizenship (Amendment) Bill 2019: The amendment proposes to permit members of six communities — Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Pakistan, Bangladesh and Afghanistan — to continue to live in India if they entered India before December 31, 2014.
  
  • It also reduces the requirement for citizenship from 11 years to just 5 years.
  • Two notifications also exempted these migrants from the Passport Act and Foreigners Act.
  • A large number of organisations in Assam protested against this Bill as it may grant citizenship to Bangladeshi Hindu illegal migrants.
  • The justification given for the bill is that Hindus and Buddhists are minorities in Bangladesh, and fled to India to avoid religious persecution, but Muslims are a majority in Bangladesh and so the same cannot be said about them.

Different Scenario in Assam

• Assam witnessed large-scale illegal migration from erstwhile East Pakistan and, after 1971, from present-day Bangladesh.
• This led to the six-year-long Assam movement from 1979 to 1985, for deporting illegal migrants.
• The All Assam Students' Union (AASU) led the movement that demanded the updating of the NRC and the deportation of all illegal migrants who had entered Assam after 1951.
• The Assam Movement against illegal immigration eventually led to the historic Assam Accord of 1985, signed by the Movement leaders and the Rajiv Gandhi government.
• It set March 25, 1971, as the cut-off date for the deportation of illegal migrants.
• Since the cut-off date prescribed under articles 5 and 6 of the Constitution was July 19, 1949 - to give force to the new date, an amendment was made to the Citizenship Act, 1955, and a new section (6A) was introduced.

• Identification of foreigners as needed by Section 6A was to be done under the Illegal Migrants (Determination by Tribunal) Act, (IMDT Act), 1983, which was applicable only in Assam while the Foreigners Act, 1946 was applicable in the rest of the country.
  
  • The provisions of the IMDT Act made it difficult to deport illegal immigrants.
  • On the petition of Sarbananda Sonowal (now the Chief Minister of Assam), the Act was held unconstitutional and struck down by the Supreme Court in 2005.
  • This was eventually replaced with the Foreigners (Tribunals for Assam) Order, 2006, which again was struck down in 2007.
  • In the IMDT case, the court considered classification based on geographical considerations to be a violation of the right to equality under Article 14.

Conclusion

• Giving concession of six years for residence based only on religion is against the tenets of secularism. This should be dropped to stand the test of ‘basic structure doctrine’.
• India, as a country which follows the ideology of ‘Vasudhaiva Kutumbakam’, should not be hasty in taking decisions that can disenfranchise her citizens – contradicting its centuries-followed values.
• The need of the hour is that the Union Government should clearly chart out the course of action regarding the fate of excluded people from final NRC of Assam and political parties should refrain from colouring the entire NRC process through electoral prospects that may snowball into communal violence.
• An overly legal approach will only produce more tension, insecurity and anxiety.