The Citizenship (Amendment) Act of 2019 (CAA), the 10th since
1957, has ignited unprecedented opposition, caused riots and polarised people
on religious lines. Curiously, India did not have any law on acquisition or
termination of citizenship before Independence. The dilemma of who is an Indian
citizen confounded the constitution makers and Parliament after Independence.
The history of citizenship rights is very short, as it started in 1949 with the
adoption of the Constitution. The specific law came into existence in 1955.
Before that, Indians were regulated by the British Citizenship and Alien Rights
Act of 1914, which considered Indians British subjects not citizens. The law
was modified in 1928 and finally repealed in 1948.
The fluid nature of the Citizenship Act, 1955, can be judged from the fact that since December 30, 1955, the law has been amended 10 times—1957, 1960, twice in 1985, 1986, 1992, 2003, 2005, 2015 and 2019.
Clues to these frequent amendments can be traced to debates
in the Constituent Assembly, the body responsible for framing the Constitution.
When Sardar Vallabhbhai Patel, chairman of the Fundamental Rights Committee,
presented the “Interim Report on Fundamental Rights” on April 29, 1947, motions
about various constitutional provisions related to fundamental rights were
passed, except the citizenship clause. After hours of quarrelsome debate, a
tired Patel quipped: “It is important to remember that the provision about
citizenship will be scrutinised all over the world. They are watching
what we are doing. By commenting on every word in this, you will never come to
an end.”
The citizenship clause has been taken from the American model which is more or less consistent with the British.
Patel’s warning proved correct and there was no agreement
among members on the citizenship clause, forcing President Rajendra Prasad to
announce that “the consideration of this clause be postponed”. Various
provisions for the citizenship clause were debated at length before the final
version was adopted by Dr. B. R. Ambedkar, chairman of the drafting committee.
While debating Articles 5 to 8 of the draft Constitution—the citizenship
clause—on August 10, 1949, Prasad said: “I find there is a veritable jungle of
amendments, something like 130 or 140 amendments, to these two articles.”
Ambedkar joined hands with Prasad and said, “Mr. President, Sir, except one other article in the draft Constitution, I do not think that any other article has given the drafting committee such a headache as this particular article. I do not know how many drafts were prepared and how many were destroyed.”
The citizenship clause, as Sardar Patel had stated in the Constituent Assembly debate, has been taken from the American model which is more or less consistent with the British. On August 12, 1949, the motion “Article 5 and Article 6 stand part of the constitution” was adopted by the Constituent Assembly. When the Constitution was adopted on November 26, 1949, Articles 5 to 8 determined citizenship. Article 9 was on how Parliament can take away citizenship and Article 10 was devoted to criteria about continuance of the rights of citizenship subject to law made by Parliament. Article 11 empowered Parliament to regulate the rights of citizens and make law on citizenship.
On December 30, 1955, it framed the law that laid down eligibility for citizenship based on a) birth, b) descent, c) registration, d) naturalisation and e) incorporation of territory. All the nine amendments moved and adopted in Parliament during the succeeding 64 years were within the ambit of these five eligibilities.
Citizenship in a democracy is important for the simple reason that a citizen, acquired or natural, gets the right to vote and run for public office. Also, citizenship confers rights and legal protections provided by the state.
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From time immemorial, citizenship has been a subject of
dispute. Kautilya in Arthashastra says, “There cannot be a country
without people and there is no kingdom (government) without a country”. On the
question of transferring the nature of allegiance of people in the wake of
change of king, Kautilya cautioned, countryside people are far more committed
to the state than the people living within the fortress. Trained in rhetoric
and philosophy, Roman stoic philosopher Lucius Annaeus Seneca said: “I am not
born for one corner; the whole world is my native land” and further added that
“Religion is regarded by the common people as true, by the wise as false, and
by rulers as useful.” Recognising the disputed nature of citizenship, Aristotle
in his magnum opus Politics stated that “the man who is a citizen in
democracy is often not one in an oligarchy.”
Problems with citizenship began immediately after Independence. On April 8, 1950, Prime Minister Jawaharlal Nehru and Pakistani Prime Minister Liaqat Ali Khan signed an agreement stating that both countries “solemnly agree that each shall ensure, to the minorities throughout its territory, complete equality of citizenship, irrespective of religion, a full sense of security in respect of life, culture, property and personal honour, freedom of movement within each country and freedom of occupation, speech and worship, subject to law and morality”.
It was decided that minorities would have equal opportunity to participate in public life, hold political or other office, and to serve in their country’s civil and armed forces. These provisions were made to arrest the waves of migration of people from one country to another and also to ensure that both countries offered an equal kind of life. However, Pakistan’s U-turn was quick as it adopted Islam as the state religion, forcing its minorities to flee, which created hitherto unseen legal problems in India. Pakistan’s change of attitude was a major reason for the frequent changes in citizenship criteria.
But the problem was not confined to Pakistan. On April 4, 1959, Prime Minister Jawaharlal Nehru told Parliament amid cheers that the Tibetan God-King, the Dalai Lama, had crossed into Indian territory as a political refugee on April 2, 1959 with an entourage of 80 and had been granted political asylum. Since then the numbers have swelled. The United Nations High Commission for Refugee estimates, as of October 2017, India has some 100,000 Tibetans, directly assisted by the government. The Oakland, USA based Tibet Justice Centre, places the current numbers at 94,000-130,000 ethnic Tibetans in India.
In 1964, prime minister Lal Bahadur Shastri signed a pact with Sri Lankan president Sirimavo Bandaranaike and agreed to confer citizenship on 5.25 lakh Tamils from Sri Lanka. In 1974, prime minister Indira Gandhi signed another agreement with Sri Lankan president Bandaranaike and agreed to absorb 75,000 more Tamils in two years.
During talks between Indira Gandhi and Bangladesh prime minister Sheikh Mujibur Rahman in February 1972, he assured that all Bangladesh nationals who had taken shelter in India since March 25, 1971 would return home. The Indian government issued a circular on September 30, 1972 setting out guidelines for action in respect of persons who came to India from Bangladesh. According to this circular, Bangladesh nationals who came to India before March 25, 1971 were not to be sent back. Those who entered on or after the said date were to be repatriated.
The refugee crisis in south India began in 1983 when anti-Tamil violence spread across Sri Lanka after the “Black July” 1983 attacks in retaliation for Tamil Tigers’ killing of Sinhala soldiers. The Tamil exodus had started.
In the north-east, the province of Assam became a virtual outpost of Bangladeshi migrants forcing Rajiv Gandhi to take steps. The Assam Accord signed on August 15, 1985, between the All Assam Students’ Union (AASU) and the All Assam Gana Sangram Parishad (AAGSP) and state and central governments conferred citizenship on “all persons (East Bengali) who came to Assam prior to January 1966, including those among them whose names appeared on the electoral rolls used in 1967 elections.
The Assam Accord also included “foreigners who came to Assam after January 1, 1966 (inclusive) and up to March 24, 1971, shall be required to register themselves before the Registration Officers of the respective districts and on the expiry of the period of ten years following the date of detection, the names of all such persons which have been deleted from the electoral rolls shall be restored.” In other words, the Citizenship Amendment Act of 1986 conferred citizenship on everybody who came to Assam before March 24, 1971. It is interesting to note that Parliament has not enacted any law for refugees from other countries except East Pakistan. Refugee status is granted in India through executive orders passed by the central government.
There were 1,20,53,950 illegal Bangladeshi migrants in 17 states and union territories as on December 31, 2003.
The Supreme Court in its judgment in Assam Sanmilita
Mahasangha & Ors vs Union Of India & Ors delivered on December 17, 2014
cited a report dated November 8, 1998 sent by Lt. Gen. S. K. Sinha, then
governor of Assam, warning of a grave threat posed by the influx of people from
Bangladesh. The court went on to say “the silent and invidious demographic
invasion of Assam may result in the loss of the geo-strategically vital
districts of lower Assam as it will then only be a matter of time when a demand
for their merger with Bangladesh may be made”. In this context, the court
warned that “it is pertinent that
Bangladesh has long discarded secularism and chosen to become an Islamic
state”.
In the Sarbananda Sonowal judgment reported in 2006, the Supreme Court concluded that the Illegal Migrants (Determination by Tribunal) Act, 1983 and the rules made thereunder operated in the reverse direction, i.e., instead of seeing that illegal migrants are deported, it placed the burden of proof on the state to prove that a person was an illegal migrant. The Act, which was violative of Articles 355 and 14, was struck down.
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Assam has been the loudest protester about illegal migration
from Bangladesh and a prime focus of various amendments to the Citizenship Act.
Ascertaining the number of illegal Bangladeshi migrants has been a matter of
great disagreement.
On July 14, 2004, in response to an unstarred question on the deportation of illegal Bangladeshi migrants, Sriprakash Jaiswal, minister of state for home affairs, told parliament there were 1,20,53,950 illegal Bangladeshi migrants in 17 states and union territories as on December 31, 2003. Assam accounted for 50 lakh while West Bengal hosted 57 lakh. Under pressure from various quarters, the minister withdrew his statement.
The Intelligence Bureau, which relied on authentic records, has put the number of illegal migrants at an unexpectedly low figure. The ministry of home affairs (MHA), in a circular on November 23, 2009 provided guidelines to all states and union territories for detection and deportation of illegal Bangladeshis. “With respect to Assam, Foreigners Tribunals are functioning under Foreigners (Tribunal Order, 1964) to detect such illegal migrants for deportation and since 1986, over 62,000 of them had been identified by the Tribunals”. However, the IB explained that as per its records “only about 2,400 could be deported and deportation of others could not materialise for various reasons”. The director-general of police of Assam submitted a different figure altogether and stated that so far, “76,740 persons were declared foreigners in Assam. Out of this 32,243 belong to the 1966-71 stream and 43,497 to the post 71 stream.”
Answering a question on why religion is invoked as the criterion, on December 12, 2019, Union home minister Amit Shah referring to Article 30 said “if the Constitution is elastic enough to allow educational institutions on the basis of religion, why cannot we make a law on citizenship following due procedure”? The new amendment allows people “belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh or Pakistan, who entered into India on or before the 31st day of December, 2014 and who has been exempted by the Central Government by or under clause (c) of sub-section (2) of section 3 of the Passport (Entry into India) Act, 1920 or from the application of the provisions of the Foreigners Act, 1946 or any rule or order made thereunder, shall not be treated as illegal migrant for the purposes of this Act”.
On the question of why Muslims are not included, Shah told the Lok Sabha that in the three countries, Islam is the state religion and Muslims cannot be persecuted in these countries. He further explained that the amendment was specifically meant for victims of religious persecution among minority communities and therefore Muslims could not be included in the amendment. While answering the debate in the Rajya Sabha the same day, Shah said religious persecution in Afghanistan and Pakistan was evident from the fact that as per a United Nation Report, Afghanistan had 200,000 Hindus and Sikhs before 1992, which went down to 500 in 2018. Pakistan had 23 per cent Hindus and Sikhs in 1947, he said. The number now stood at 3.7 per cent.
The rules that define citizenship have changed many times. For example, if you were born in 1950-87, no one can question your status. Waves of migrants from Pakistan, Bangladesh, Sri Lanka and Tibet came to India and got citizenship in this period. After 1987 and before the commencement of the Citizenship Amendment Act of 2003, one could be a citizen if one parent was an Indian citizen. After 2003, either both parents had to be Indian, or one Indian and the other should not be an illegal migrant. For the first time, the 2019 edition added religion as a criterion for eligibility.
On May 7, 2003, home minister L. K. Advani introduced the Citizenship Amendment Bill 2003 in the Rajya Sabha “to make provision for the grant of dual citizenship and has taken the opportunity of introducing a scheme for the compulsory registration of every citizen of India, and for this purpose to issue national identity cards”. The bill intended to make every person a citizen who was born in India; (a) on or after the 26th day of January, 1950, but before the commencement of the Citizenship (Amendment) Act, 1986; and (b) on or after such commencement and either of whose parents is a citizen of India at the time of his birth; shall be a citizen of India by birth.”
Before the bill became law, the gazette notification by the home ministry on December 10, 2003 framed the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003 heralding two major changes. As the name of the rule indicates there should be a “National Register of Indian Citizens” and there should also be a “National Identity Card”. For Assam the rule was different. The NRC should be “based on the National Register of Citizens 1951 and electoral rolls to midnight of the 24th day of March 1971”.
After the Citizenship Amendment Act, 2003 was passed on January 7, 2004, a new section—4A—was inserted that mandated, “The Central Government may compulsorily register every citizen of India and issue national identity card to him”. The Citizenship (Amendment) Act, 2003 came into effect from December 3, 2004. Therefore, the Citizenship Amendment Act of 2003 is the genesis of the countrywide National Register of Citizens, National Population Register and also the issuance of Aadhaar Card.
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Other than that the Act of 2003 provided grounds for the
abortive Citizenship Amendment Bill of 2016. It was first introduced in the Lok
Sabha on July 15, 2016. Home minister
Rajnath Singh, explaining the statement of objects and reasons, unconvincingly
informed the Lok Sabha that “persons belonging to the minority communities,
such as Hindus, Sikhs, Buddhists, Jains and Christians from Afghanistan,
Bangladesh and Pakistan are regarded as illegal migrants and hence ineligible
to apply for citizenship and the bill would make them eligible”.
Rather than debating the bill, the same day Singh sent it to a 30-member Joint Parliamentary Committee (JPC) to study and suggest ways to make the bill a law. The JPC made an elaborate study, summoned officials from various ministries, the Intelligence Bureau (IB), Research and Analysis Wing (RAW) and provincial police and received 9,267 memorandums directly from organisations and individuals. Other than that, 49 organisations submitted their memorandum through the prime minister and president while 56 non-official witnesses orally deposed before the JPC. Nine members of the committee submitted dissent notes when the final report was prepared.
On January 7, 2019, the JPC submitted its report to the Lok Sabha recommending the bill for discussion in Parliament. A day later, the Lok Sabha passed it. On January 9, 2019, the bill was placed before the Rajya Sabha, where the session was extended for a day to take up the Economically Weaker Sections quota bill. As it could not be passed in the Rajya Sabha, the bill lapsed.
But a defiant BJP included the CAB as part of its 2019 election manifesto while the Congress party vowed to oppose it. After the May 2019 victory, the home ministry was handed to Amit Shah who presented the bill to the Lok Sabha on December 4. This time, the ministry tightened the statement of objects and reasons. It said trans-border migration is a historical fact and as the “Constitution of Pakistan, Afghanistan and Bangladesh provide for a specific state religion, many persons belonging to Hindu, Sikh, Buddhist, Jain, Parsi and Christian communities have faced persecution on the grounds of religion in those countries”. It further says many such persons have fled to India to seek shelter and the bill “proposed to make the said migrants eligible for Indian Citizenship”.
There is no specific national law to deal with refugees. The government issued a Standard Operating Procedure on December 29, 2011 under which a foreign national can stay in India on a Long Term Visa if it is proved that he has been a victim of oppression in his native country.
The “Joint Committee on the Citizenship (Amendment) Bill” of
2016 summoned the IB director at one of the deliberations and asked how many
persons from minority communities would benefit from the proposed amendment on
the basis of religious persecution. Rajiv Jain, then director, IB, said “there are 31,313 persons belonging to
minority communities (Hindus–25,447, Sikhs–5,807, Christians-55, Buddhists–2
and Parsis-2) who have been given Long Term Visa on the basis of their claim of
religious persecution in their respective countries and want Indian
citizenship. These persons will be immediate beneficiaries.”
The JPC wanted to know if only 31,313 persons would benefit from the proposed law. In reply, Jain deposed: “Yes, because they have claimed; they have applied. There will be many others who might have come and might have taken citizenship by various means. They might have obtained passport, ration card, voter ID or other documents. Tribunals are already there to identify if any of them has obtained it by fraudulent means. That is a different issue altogether. The Bill is for those who have applied and who have claimed that they have been persecuted in their country.” Jain further stated, “So from the available data I think it will be a small number. I feel that it is from human angle also because they have left their original countries decades back. They are here; they have become citizen-less. Considering all these facts, the government took a decision and the Bill has been brought.”
The JPC also summoned Sujit Chatterjee, Joint Secretary, R&AW to hear the external intelligence agency’s views. The agency said its concern includes that “agencies inimical to us should not have a legal framework within which they can exploit our situation and infiltrate their own people into our country. That is a matter of great concern for us.”
More than 26 lakh Overseas Citizen of India cards had been issued till November 3, 2016 and there were many attempts by foreign nationals to acquire OCI cards through fraudulent means. On the question of whether it was absolutely necessary to confer citizenship on the migrants as conferring political rights had larger implications and whether it would be prudent to accord refugee or temporary resident status to them, the ministry of home affairs stated that “since, India is not a signatory to the UN Convention, 1951 or its Protocol of 1967, it may not be prudent to treat them as refugees, if rules permit that they could be allowed to acquire Indian citizenship.”
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There is no specific national law to deal with refugees.
Countries like Pakistan, Bangladesh, Sri
Lanka, Nepal, Myanmar, Thailand or Bhutan are also not signatories to the UN
Convention/Protocol. The government issued a Standard Operating Procedure
on December 29, 2011 under which a
foreign national can stay in India on a Long Term Visa if it is proved that he
has been a victim of oppression in his native country on account of his caste,
religion, sex, nationality, identity, different political view, etc.
The ministry of external affairs said there were no specific agreements with countries like Afghanistan, Bangladesh and Pakistan for deporting illegal migrants. However, the ministry of home affairs said the Central Government could deport foreign nationals illegally staying in the country under Section 3(2) (c) of The Foreigners Act, 1946. These powers have also been entrusted to state governments/UT administrations and the Bureau of Immigration.
An illegal immigrant can be deported only after the government of the country concerned confirms his nationality after a verification process and issues a travel document facilitating deportation. The latest amendments seek to correct a historical wrong, especially the inability of erstwhile East and West Pakistan to honour the Nehru-Liaqat Agreement. But the timing amid the much-maligned NRC in Assam, ongoing NPR in various states and proposal to extend NRC to the whole country and issuance of National Identity Card has had a devastating impact on vulnerable sections of society.
The impact of country-wide protests was so huge that on December 22, in a public rally in New Delhi, Prime Minister Narendra Modi had to refute the claim of Amit Shah that NRC would be extended to the whole country. Shah had to depute an official to explain how in the past six years, particularly after Modi became prime minister, as many as 2,830 people from Pakistan, 912 from Afghanistan and 172 from Bangladesh were granted citizenship. During this period 566 Muslims out of the total 3,914 applicants applied and got Indian citizenship. And after the settlement of the boundary dispute between India and Bangladesh, about 14,864 Bangladeshi nationals got Indian citizenship after incorporating more than 50 enclaves of Bangladesh in 2014.
The people, however, remain unconvinced. Only time will tell who among the three—government, Supreme Court or the people of the country were correct.
is a security expert. He teaches at the University of Delhi.
