RELIGION, LAW AND INDIAN CITIZENSHIP
Dissertation submitted in part fulfillment for the requirement of the Degree of
L.L.M
Submitted by Supervised by
SHREYASI BHATTACHARYA MR.DANIELMATHEW
National Law University Delhi
2018-2019
1 TABLE OF CONTENTS
TITLE PAGE NUMBER
DECLARATION BY THE CANDIDATE 5
CERTIFICATE OF THE SUPREVISOR 6
ACKNOWLEDGMENT 7
LIST OF ACRONYMS AND 8 ABBREVIATIONS
TABLE OF STATUTES 9-10
LIST OF CASES 11
CHAPTER I- INTRODUCTION 1-19
1.1 INTRODUCTION 12
1.2 LITERATURE REVIEW 13
1.3 STATEMENT OF PROBLEM 15
1.4 OBJECTIVES 16
1.5 SCOPE OF STUDY 16
1.6 RESEARCH QUESTIONS 17
1.7 HYPOTHESIS 17
1.8 RESEARCH METHODOLOGY 17
1.9 CHAPTERIZATION 19
CHAPTER 2- LOCATING RELIGION IN 20-44 PRE-CONSTITUTIONAL PARADIGM
2.1 CITIZENSHIP AS IDENTITY 20
2.2 RELIGION AND LAW IN OTHER 22 JURISDICTIONS
2.3 RELIGION IN THEORY & RELIGION 26 IN HISTORY- CONSTITUENT ASSEMBLY DEBATES AND INDIAN HISTORY OF PARTITION
2.3.1 CTIZENSHIP UNDER COLONIAL 27
2 RULE
2.3.2 PRE- PARTITION DISCOURSE OF 29 CONSTITUENT ASSEMBLY DEBATES
2.3.3 PARTITON-THE TRANSITION IN 33 DISCOURSE
2.3.4 POST PARTITION DEBATES 39
2.4 CONCLUDING REMARKS 44
CHAPTER 3- POST-INDEPENDENCE 45-73 DISCOURSE ON CITIZENSHIP
3.1 CITIZENSHIP: FROM ENACTMENT 45 OF THE INDIAN CONSTITUTION TILL THE INDIAN CITIZENSHIP ACT 1955
3.1.1 ABDUCTED PERSONS (RECOVERY 49 AND RESTORATION) ACT 1949
3.1.2 ENEMY PROPERTY ACT 1965 52
3.2 CITIZENSHIP ACT, 1955 AND THE 52 SUBSEQUENT AMENDMENTS TO THE CITIZENSHIP LAWS
3.2.1 THE CITIZENSHIP ACT 1955 52
3.2.2 AN OVERVIEW OF MIGRATION IN 54 ASSAM
3.2.3 THE IMMIGRANTS (EXPULSION 55 FROM ASSAM) ACT, 1950
3.2.4 THE ASSAM MOVEMENT 57
3.2.5 ASSAM ACCORD 1985 & THE 59 CITIZENSHIP (AMENDMENT) ACT 1986
3.3 CONTESTATIONS OF ‗ASSAMESE 62 EXCEPTION‘
3 3.3.1 FOREIGNER‘S ACT, 1946 62
3.3.2 THE ILLEGAL MIGRANT, 64 (DETERMINATION BY TRIBUNAL ACT) 1983
3.3.3 SARBANANDA SONOWAL V. 66 UNION OF INDIA
3.4 DEVELOPMENT IN CITIZENSHIP 70 DISCOURSE AFTER 2000
3.5 CITIZENSHIP IN OTHER PARTS OF 72 INDIA
3.6 CONCLUDING REMARKS 73
CHAPTER 4: ANALYSING 75-87 CITIZENSHIP AMMENDMENT BILL 2019 4.1 BACKGROUND 75
4.2 THE CITIZENSHIP AMENDMENT 78 BILL (2019)
4.3 A CONSTITUTIONAL APPRAISAL OF 77 THE BILL
4.4 A HUMAN RIGHTS APPROACH 83
4.4.1 A DOMESTIC PERSPECTIVE- 83 NATIONAL REGISTER OF CITIZENS
4.4.2 INTERNATIONAL HUMAN RIGHTS 85
4.5 CONCLUDING REMARKS 87
CHAPTER 5-:CONCLUSION 88-90
BIBLIOGRAPHY 91-100
4
DECLARATION BY CANDIDATE
I hereby declare that the dissertation entitled “Religion, Law and Indian
Citizenship” submitted at National Law University, Delhi is the outcome of my own work carried out under the supervision of Mr. Daniel Mathew,
Assistant Professor, National Law University, Delhi.
I futher declare that to the best of my knowledge, the dissertation does not contain any part of work, which has not been submitted for the award of any degree either in this University or any other institution without proper citation.
Shreyasi Bhattacharya
65 LLM 18
National Law University Delhi
New Delhi
May 21 2019
5
CERTIFICATE OF SUPERVISOR
This is to certify that the work reported in the L.L.M dissertation entitled ―Religion,
Law and Indian Citizenship” submitted by Shreyasi Bhattacharya at
National Law University Delhi is a bona fide record of her original work carried out under my supervision.
Daniel Mathew
Assistant Professor
National Law University Delhi
Delhi
22.05.2019
6
ACKNOWLEDGEMENTS
I would like to thank everyone who assisted me for the completion of this work. I would like to extend my sincere gratitude to my advisor Mr. Daniel Mathew for his continuous guidance for the completion of my Dissertation and related research, for his patience, motivation, and immense knowledge. His guidance helped me in every step of research and writing of this study.
I would also like to extend my thanks to various faculty members who answered my queries for the preparation of this project. The insights provided by Dr. Aparna Chandra, Dr. Vinod Kumar, Dr. Anirudh Jairam and Dr. Jasper Vikas at various stages of this process helped me to gain more clarity in this work.
I would also like to thank my peers for their continuous support and the library staff for their untiring assistance. Last but not the least, I would like to thank my family for their continued support throughout the duration of this course.
7
LIST OF ACRONYMS AND ABBREVIATIONS
AIR All India Law Reports
Anr. Another
CAD Constituent Assembly Debates ed(s). Editor(s) edn. Editions et. al. and others
EPW Economic & Poilitical Weekly f.n Footnote (in referred book)
Ibid Ibidem
ICCPR International Covenant on Civil and Political Rights
IMDT Illegal Migrants (Determination by Tribunal) n. note
NRC National Register of Citizens
Ors. Others p. Page pp. Pages rev.Review
UDH Universal Declaration of Human Rights R Versus v. Volume Vol.
8
TABLE OF STATUTES
Abducted Persons (Recovery and Restoration) Act, 1949
Armed Forces Special Powers Act, 1958
Assam Accord 1985
British Nationality and Status of Aliens Act, 1914
Disturbed Areas Act, 1955
Citizenship Act, 1955
Citizenship (Amendment) Act, 1986
Citizenship (Amendment) Act, 2003
Citizenship (Amendment) Bill 2019
Citizenship Rules 1956
Constitution of India 1950
Enemy Property Act, 1965
Foreigner‘s Act 1946
Foreigner‘s Order 1948
Foreigner‘s (Amendment) Order 2015
Foreigner‘s (Amendment) Order 2016
9 Government of India Act, 1858
Government of India Act, 1935
Illegal Migrants (Determination By Tribunals) Act, 1983
Immigrants (Expulsion From Assam) Act 1950
India-Bangladesh Treaty of Friendship, Cooperation and Peace 1972
Influx from Pakistan (Control) Ordinance 1948
National Security Act, 1980,
Passports Act, 1920
Passport Act, 1967
Passports (Entry into India) Amendment Rules 2015
Passports (Entry into India) Amendment Rules 2016
Passports (Entry into India) Rules 1950
U.S Immigration & Nationality Act, 1952
10
LIST OF CASES
1. Assam Public Works V. Union of India 2014 SCCOnline SC 1017
2. Badruzzaman vs The State on 16 August, 1950 (AIR 1951 AL 16)
3. Firoz Meharuddin vs Sub-Divisional Officer And Ors. on 26 April, 1960 AIR 1961 MP 110
4. Keshavananda Bharti V. State of Kerala & Anr. (1973) 4 SCC 225
5. Maneka Gandhi V. Union of India 1978 SCR (2) 621
6. Railway Board & Ors vs Mrs. Chandrima Das & Ors. AIR 2000 SC 988
7. Ram Krishan Dalmia V. Justice S.R Tendolkar 1959 SCR 279
8. SarbanandaSonowal v. Union of India A.I.R. 2005 S.C. 2920
9. Shanno Devi V. Mangal Singh [AIR 58 1961 SCR (1) 576]
10. Sharma Transport V. Government of A.P AIR 2002 SC 322
11. Smt. Bimla Devi V. Chaturvedi &Ors AIR 1953 All 613
12. S.R Bommai V. Union of India (1994 AIR 1918)
13. State of Punjab V. Ajaib Singh &Anr 1953 AIR 10
11 CHAPTER 1
INTRODUCTION
1.1 INTRODUCTION
Citizenship has been defined as a ―legal institution which designates full membership in 1 the state and its associated rights and duties.‖ Citizenship is a legal status and an 2 identity‖. There are two elements to citizenship: an objective status where a state invests certain rights and obligations and a subjective dimension which consists of a sense of 3 loyalty and belonging. An objective status may encompass citizenship as a status while a subjective status may involve the political and social implications of such status. An objective status does not necessarily translate into a subjective status in the sense that members of the political community may feel alienated due to various forms of 4 discrimination. This discrimination can encompass various factors like religion, race, class, caste etc. Recently, in India citizenship as a legal status came to be marked by religion when the latter was incorporated in the legal framework on citizenship in India in the form of Citizenship Amendment Bill, 2019
It is a matter of debate as to whether this explicit recognition of religion as a determinant factor for granting citizenship in India is new or whether it has always ascertained the legal status of citizenship in India. This becomes relevant especially in light of the widespread debate and controversy especially in Assam, where the presence of ‗illegal migrants‘ has been contested with many alleging that it seeks to attempt religion as a 5 dominant identity thereby suppressing cultural and linguistic identities in Assam. Therefore this work is an attempt to understand the effect of religion in the Indian citizenship discourse. It traces India from the moment of its formation as a political
1 Bertocchi, &B. Strozzi, “The Evolution of Citizenship: Economic and Institutional Determinants‖ Centro Studi Luca d'Agliano Development Studies Working Paper No. 211 IZA Discussion Paper No. 2510 (2006) 2 Gabriel de La Pez, ‗Citizenship Identity and Social Inequality‖ Centre for Civic Education (April 15, 2019)
12 community at independence and continues to study the legal discourse of citizenship in the post-independence period till its culmination in the latest Citizenship Bill.
1.2 LITERATURE REVIEW
Citizenship is a highly contested area. The current work is an expansion on the existing literature. It seeks to trace the citizenship discourse in the Constitution in light of the latest legislative enactments. In this field, Nirja Jayal‘s Citizenship and Its Discontents : 6 An Indian History is one of the most important sources of literature which seeks to identify the various aspects related to citizenship. As part of her study, she seeks to understand citizenship as a legal status, seeing how it has been changed from a jus soli to jus sanguinis conceptions.
7 Another seminal work in this regard in Anupama Roy‟s Mapping Citizenship in India which comprehensively studies the discourse on citizenship present in India. It provides a lucid study in how the change in the definition of the Citizenship Act, 1955 took place by viewing it through the perspectives of amendments and through the perspective of from pre-legislative framework era. Citizenship framework evolving from pre-Citizenship Act to the Amendment Act of 2003 is a story of contestations.
In order to understand the history of violence, Gyanendra Pandey‘s Remembering 8 Partition: Violence, Nationalism and History of India requires a thorough study. His emphasis lies on the way how history is justified and hides the traumatic events that it wishes to forget. History forgets events by making them ahistorical, localizing the event so that it does not fit in the broader narrative and finally by focusing on causes of events. 9 Muhirul Hasan in Inventing Boundaries: Gender, Politics and The Partition of India has written extensively on Partition mainly concerned with how the idea of Pakistan came to be.
6JAYAL, CITIZENSHIP AND ITS DISCONTENTS: AN INDIAN HISTORY (2013) 7 ROY, ANUPAMA MAPPING CITIZENSHIP IN INDIA ( 2010) 8 GYANENDRA PANDEY, REMEMBERING PARTITION: VIOLENCE, NATIONALISM AND HISTORY IN INDIA 3 (2004) 9 Mushirul Hasan, Partition Narratives, 30 SOCIAL SCIENTIST 24, 40-1(2002)
13
Ritu Menon and Kamla Bhasin‘s Borders and Boundaries: Women in India‟s Partition is the first feminist work on Partition which strives to understand women‘s agency in the Partition and reveals the violence on women. Through interviews with survivors and scrutinizing legal instruments, they seek to understand state violence against abducted women and children in the partition discourse, how the efforts were made at their ‗recovery‘ Urvashi Batulia also in The Other Side of Silence has through oral testimonies tried to understand the accounts of women into how partition was carved in their memory and through this she highlights caste as a factor in Partition apart from gender.
10 Sudhir Kakkar has studied partition through psychoanalytical theory to explain why violence was worse in villages where communities were on best of terms. Sudhir Kakkar and Katharina Kakkar in their work has studied this Indian identity through family, 11 community and violence impacts it Kakkar explains the sexualized nature of violence which arises out of the infantile fantasies of the fear of what may be done to oneself.
Joya Chatterji explains the start for the need for partition and how it was started from the Hindu middle class majority in West Bengal. Her work is based upon a simultaneous study of how the debates developed in India and Pakistan to understand the profound 12 13 effects of Partition. C. Hemdad Haque‘s work on displacement of refugees during the Partition is also important in this regard.
In understanding how the citizenship debate was influenced in India, it is necessary to 14 look into the history of Assam into works of Myron Weiner who traces Assam‘s anti- immigrant movement assumed became politicized and how violence became a part and 15 parcel of such movement. E.A Gaits‘ book ―A History of Assam‖ traces the history of Assam starting from the Ahom rule to present times. It traces the pattern of migrations
10 SUDHIR KAKKAR, THE COLOURS OF VIOLENCE (2000) 11 SUDHIR KAKKAR& KATHARINA KAKKAR, THE INDIANS: POTRAIT OF A PEOPLE, (2007) 12 Joya Chatterji, South Asian histories of Citizenship 1946-1970, 55 THE HISTORICAL JOURNAL 1049 (2000) 13 C. Hemdad Haque, The Dilemma of 'Nationhood 'and Religion: A Survey and Critique of Studies on Population Displacement Resulting from the Partition of the Indian Subcontinent” 8(2) JOURNAL OF REFUGEE STUDIES 185 (1995) 14Myron Weiner, The Political Demography of Assam‟s Anti-Immigrant Movement, 9(2) POPULATION AND DEVELOPMENT REVIEW 279 (1983) 15 E.A GAITS, A HISTORY OF ASSAM, THACKER, SPINK & CO. (1906)
14 which started from that time which becomes very important to understand the start of the demographic shift of the migration movements.
Kamal Sadiq in Paper Citizens: How Illegal Immigrants Acquire Citizenship in 16 Developing Countries traces how migrants acquire citizenship through illegal documents. It helps one to understand how citizenship can be transferred through the means of documents leading to the fluidity of its conceptualization.
Sanjib Baruha, an authority, in mapping the historiography of Assam has been a major 17 source consulted for this study. Baruah, through his book , has captured the insurgency in Assam emerging from a conflict of identities through the background of Assam by studying the history of its tensions between pan-Indianism and Assamese subnationalism since the early days of Indian nationalism. In his other works as well, he has captured the 18 nuances of the political turmoil in Assam quite aptly.
For international and theoretical perspectives, Kymlicka‘s piece is very enlightening for 19 understanding citizenship through political conceptions. Iris Marion Young‘s work on group differentiated citizenship is also useful for understanding identity in pluralistic 20 democracies.
1.3 STATEMENT OF PROBLEM
The Indian Constitution 1950 aims to promote the concepts of equality and secularism. It grants legislative authority powers to decide the limits of citizenship In 2019, the Citizenship Amendment Bill was introduced which created a religious ground for granting citizenship to certain categories of individuals which is alleged to be going
16 Kamal Sadiq, PAPER CITIZENS: HOW ILLEGAL IMMIGRANTS ACQUIRE CITIZENSHIP IN DEVELOPING COUNTRIES, OXFORD UNIVERSITY PRESS (2009) 17 SANJIB BARUAH, INDIA AGAINST ITSELF: ASSAM AND THE POLITICS OF NATIONALITY (1999 ) 18 Sanjib Baruah, Immigration, Ethnic Conflict, and Political Turmoil-Assam, 1979-1985, 26 ASIAN SURVEY 1184 (1986) 19 Will Kymlicka and Wayne Norman , Return of the Citizen:A Survey of Citizenship Recent Work on Citizenship Theory 104, ETHICS 352,369 (1994) 20 Iris Marion Young, Polity and Group Difference: A Critique of the Ideal of Universal Citizenship, 99 ETHICS 250 (1989)
15 against the basic structure of the Constitution. Religious markers may have been present in legislative framework of India before as well. This study is an attempt to understand the presence of such markers by tracing the citizenship discourse from its inception during partition till the culmination of the Citizenship Bill. It attempts to ascertain whether such form of citizenship is suitable in the first place and suggests for a more accommodative approach to fit into a pluralistic democracy.
1.4 OBJECTIVES
1. To construct a comprehensive context of inclusion of religion in the legal citizenship discourse of India
2. To analyze the influence of religious identity in shaping the constitutional theory in India
3. To ascertain role of religion in the historical causes leading to the development of the Constitutional and legislative framework on citizenship
4. To ascertain the markers of religion in legal policy discourse of India
5. To analyze inclusion of the religious grounds provided in the Citizenship Bill 2019.
1.5 SCOPE OF STUDY
The study is mainly limited to the domestic legal discourse of citizenship in India. It studies Indian history only for the purpose of the citizenship discourse. Other facets of citizenship such as overseas citizenship, dual citizenship are not studied due to the absence of their connection with the objective of this study. Although migration has been studied, parts relevant for understanding the citizenship discourse in India has been included and not migration history as a whole. Apart from religion, citizenship may be shaped by a number of other factors such as class, caste etc and these may overlap with religion at some places. However the scope of this study is only limited to religion as a
16 factor in the citizenship discourse and therefore does not include the effect of any other factors.
1.6 RESEARCH QUESTIONS
1. Is religion as a factor is citizenship discourse of India?
2. What role does religion play in constitutional and statutory framework in India ?
3. Is the utilization of religion as an identification marker in the Citizenship Bill 2019 legitimate ?
1.7 HYPOTHESIS
Religion is a determinant factor in the legal citizenship discourse of India.
1.8 RESEARCH METHODOLOGY
The proposed study is doctrinal in nature. Through an extensive study of articles written by scholars and experts the researcher is able to understand the position of religion and citizenship. The researcher has aimed to understand the religion as a factor in the statutory and constitutional framework of citizenship in India. Considering the subject of the study, methodology of doctrinal and qualitative research is most suitable.
1.9 CHAPTERIZATION
In Chapter 1, a brief introduction the research methods, scope and objectives of the research work is given.
In Chapter 2 the researcher has started with a brief discussion on the evolution of citizenship as an identity. From there the researcher has mapped how religion as a factor
17 in such identity discourse and how it has been a factor while granting citizenship in the legal framework of other countries. Finally the chapter conducts an analysis into the moment when religion shaped legal citizenship in India by studying the Constituent Assembly Debates before and after the partition.
In Chapter 3, the researcher traces the changing character of citizenship discourse from jus soli to jus sanguinis by looking at the changes at the legislative frameworks of India through the backdrop of the Assam protests. This chapter aims to understand whether religion as a factor had a role to play anywhere in influencing such change.
In Chapter 4, the researcher conducts an analysis of the Citizenship Bill 2019 to test its legitimacy based on Constitutional and Human Rights approaches.
Finally, the study concludes with a discussion on whether religion is a determinant factor in the Indian legal citizenship regime and the author‘s takeaway on accommodating the diverse identities in India.
18 CHAPTER 2
LOCATING RELIGION IN PRE-CONSTITUTIONAL
DISCOURSE
The classical theories have defined citizenship as the relationship between individual and states. The concept of citizenship has continuously evolved through history. The Greek historian Aristotle in his book Politics, said man is a social animal and therefore needs to 21 participate in various social activities for the development of his personality. Modern concepts of citizenship found its genesis in liberalism with the emergence of the concepts of rights and liberties which was fueled by the notions of nationalism and consolidation of nation states created among the working class and socialist movements. A major step was taken by T.H Marshall in his essay ‗Citizenship and Social Class‘. He traced the concept of citizenship in the last century and argued that citizenship underwent a transformation with the development of liberalism into a social system. He defined citizenship as ‗full membership of a community‘. According to him, citizenship is 22 constituted by three elements: civil, political and social rights. Bryan Turner the first to revisit Marshallian theory explained that Marshall proposed the extension of citizenship as a ―principal means for resolving or at least containing the contradictions‖ between ―formal political equality of the franchise and the persistence of extensive social and economic inequality, ultimately rooted in the character of the capitalist market place and 23 the existence of private property‖. The idea for a more differentiated form of citizenship could be hinted from Turner‘s definition of citizenship as a cluster of economic, legal, and cultural practices which define an individual as a competent member of society helps one in understanding how individuals and groups have differentiated opportunities of becoming competent members of society.
21 ARISTOTLE, ARISTOTLE‘S POLITICS 4 (1905) 22 Civil rights included liberty of person, freedom of speech, right to own property etc. The political elements included the right to participate in the exercise of political power. Finally the social elements included the right to economic welfare and security. See MARSHALL, T. H. CITIZENSHIP AND SOCIAL CLASS, AND OTHER ESSAYS. (1950). 23 Bryan S. Turner, ―Outline of a Theory of Citizenship‖ in Turner & Hamilton (eds)(EDCITIZENSHIP.:CRITICAL CONCEPTS. (1994).
19
2.1 CITIZENSHIP AS IDENTITY
After serving a prolonged hiatus period, citizenship has again witnessed renewed interest 24 and has become the ‗buzz word‘. The past few decades have witnessed large number of conflicts on the lines of ethnicity. Political thinkers have turned their attention to identity as an important component of citizenship. Questions about who is entitled to the rights arising from the citizenship as a legal status or be bound to the obligations attached to such status have become relevant in modern times. These questions have become more difficult with the rise of the ‗politics of identity‘. Citizenship apart from being a status defined by rights and responsibilities is also an identity i.e the expression of one‘s 25 membership in a political community. The politics of identity concept has brought forth the tension existing between the singular identity envisaged by citizenship versus the pluralistic nature of social identities. Fragmentation of political identities and conflicting political loyalties and obligations attached to ‗post-modern‘ condition characterized by creation of new identities due to profound structural and institutional 26 changes question the very basis of the ‗singularity‘ of citizenship.
Identity theorists propose that oppressed identity groups must have a separate say in the democratic state to put forward their claims along with their grievances. These identity groups generally witness their claims being ignored in a majority rule based democratic system. Several groups based on religion, race, caste etc. feel excluded from the ‗common culture‘ in spite of having rights because of their ‗difference‘ or socio-cultural 27 identity. Cultural pluralists argue that common rights to membership cannot cater to
24Trevor Purvis and Alien Hunt, Identity Versus Citizenship Transformations, 8(4) SOCIAL & LEGAL STUDIES 457, (1999) 25Will Kymlicka and Wayne Norman , Return of the Citizen:A Survey of Citizenship Recent Work on Citizenship Theory 104, ETHICS 352,369 (1994) 26Id. at 458 27Id.
20 these groups and hence ‗group differentiated rights‘ as Iris Marion Young calls it needs to 28 be formulated to integrate a group in a common culture.
Citizenship apart from being an unstable concept is also highly contested and constantly changing throughout history. Citizenship as an identity focuses on citizenship as a form 29 of inclusion. It begins the perspectives of citizens on which of their fellow people will be included in the membership of the community i.e it includes the individuals with 30 whom they share an affinity. The narrow concept of citizenship existent in classical literature has been expanded by a need to realize plurality of societies. Manuel Castells states that identity is ―the process of construction of meaning on the basis of a cultural attribute, or a related set of cultural attributes, that is given priority over other sources of meaning. For a given individual, or a collective of actors, there may be a plurality of 31 identities.‖ Therefore there arises a need to accommodate such identities in heterogenous societies. Identity contains the ―demand for recognition, idea of difference 32 and the principle of equal dignity.‖
The requirements and definitions of citizenship has varied from country to country and is shaped by the countries past experiences along with the specific circumstances affecting the political membership in that country andcitizenship is a legal expression of the 33 membership. So it I reflects the definition of exclusion within itself. One author argue that distnctions for granting citizenship are considered to be justified since without it is
28Iris Marion Young, Polity and Group Difference: A Critique of the Ideal of Universal Citizenship, 99 ETHICS 250 (1989)
29 Linda Bosniak, Citizenship Denationalized, 7 IND. J. GLOBAL LEGAL STUD. 447, (2000). 30 Id 31CASTELLS, MANUEL, THE POWER OF IDENTITY: ECONOMY, SOCIETY AND CULTURE. 6 (2010) . 32Hamid Ansari, Identity and Citizenship, OUTLOOK MAGAZINE (Nov 5, 2013) https://www.outlookindia.com/website/story/identity-and-citizenship/288434 (Last accessed 5th March 2019) 33 Safran, Citizenship and Nationality in Democratic Systems: Approaches to Defining and Acquiring Membership in the Political Community, 18 INTERNATIONAL POLITICAL SCIENCE REVIEW 313, 1-2 (1997)
21 34 impossible to hold the stability of the political community. However such distinctions must be in line with the principle of the grundnorm of the political community.
In this chapter the researcher argues that religion has played a major role in shaping the entire citizenship debate through the question of identity. Sociological theories of Emile Durkheim and Max Weber predicted that despite the role of religion in human 35 development, it has been displaced in modern times. While religion therefore is considered to be outdated, modern nation-states especially democracies are more 36 connected with the ideas of secularism. However time has not led to the disappearance 37 of religion as a driving force. In order to arrive at religion as a driving force behind the citizenship discourse we look at how throughout the world it has shaped citizenship debates through looking at discourse present in various countries. In the next part the researcher sees how in India, it became a factor in the citizenship debate by analyzing the changing discourse of the Constituent Assembly debates through the lens of partition.
2.2 RELIGION AND LAW IN OTHER JURISDICTIONS.
Throughout the world nationality laws defines the members of the countries. It defines who will get citizenship and who will not. While territory determines geographical limits, 38 39 nationality determines its population. Citizenship being a ―legalized discrimination‖ is determined by nationality laws which gives it two forms- jus soli or birthplace citizenship and jus sanguinis or citizenship by descent. Two other factors are also present: the
34 Marten P. Vink, Comparing Citizenship Regimes in Schachar et. al (eds) OXFORD HANDBOOK ON CITIZENSHIP, 2017). 35 Eva Schubert, Religion and Citizenship: Multiple Identities in the Modern World 4 JOURNAL OF THE INSTITUTE FOR THE HUMANITIES 34, 38 (2009) 36 37Id Id 38Patrick Weil, Access to Citizenship : A Comparison of Twenty Five Nationality Laws, in T. Alexandaer et.al (eds).CITIZENSHIP TODAY: GLOBAL PERSPECTIVES AND PRACTICES (,17-35 ( 2001 ) . 39 ANDREAS WIMMER, ETHNIC BOUNDARY MAKING: INSTITUTIONS, POWER, NETWORKS 74 (2013).
22 marital status or marriage to citizens of other countries; and the past, present or the future 40 residence in the country‘s past, future or ―intended borders‖ including colonial borders.
Generally jus soli and jus sanguinis forms of citizenship are adopted. India at its commencement adopted the jus soli form of citizenship which later transformed to become jus sanguinis which would be seen throughout the course of this work. Jus sanguinis is the principle more open to modification. As Open Society Institute Initiative notes, ―Jus sanguinis is the principle most subject to abuse. Rather than treating descent as a predictor of the state to which an individual will be tied, and the citizenship that individual will logically need, the worst citizenship policies elevate descent to the sole qualification for state protection—as if having a parent born in another country (which might not even have been a separate country at the time) were proof of fundamental unfitness for belonging to a society. Jus sanguinis is also often a proxy for some other immutable characteristic such as ethnicity, language or religion. If citizenship is based on these, then no amount of loyalty to the state, no number of years lived or social ties or great deeds done will make an individual qualify for citizenship. The greater the 41 individual‘s tie to a country, the crueler is denationalization.‖ Hence for the scope of this piece we will consider an overview of countries to see factors like religion, language etc. emerge as a proxy in jus sanguinis forms of citizenship.
However even in jus soli process where evidence of lawful residence is required to confirm birth to provide citizenship, the process of naturalization may be fraught with religious prejudices. In countries like U.S, Canada, Australia jus soli principle can be seen. In such liberal societies, religious or racial prejudices may operate on the procedural decision making process which is vested on administrative authorities. Outsiders may be subjected to the discretion of these authorities. For instance, Jenny Pasquarella, a senior staff attorney at American Civil liberties Union notes that in case of Muslim applicants when they apply for citizenship in U.S., although prima facie there is
40 Id. 41, Open Society Justice Initiative, The Face of Statelessness: A Call for African Norms on the Right to Citizenship 4 (2007), http://www.citizenshiprightsinafrica.org/Publications/2007/TheFaceofStatelessness.02.07.pdf; see also MANBY, CITIZENSHIP LAWS IN AFRICA, supra note 5, at 11–12 cited in Peter J. Sipro, A New International Law on Citizenship, 105 (4) THE AMERICAN JOURNAL OF INTERNATIONAL LAW 730, 694 f.n 248, ( 2011)
23 no racial or religious discrimination in acquiring citizenship in the U.S Immigration and Nationality Act 1952, these play a huge role in the naturalization process. Muslims applicants are often asked questions about their religion, what mosque they attend, how often they pray or questioned on the basis for donations to Muslim charities. They are then asked for evidence for such actions which might date a long time back and for which 42 evidence may not be possible to collect.
In contrast, in some African countries, religion is a determinant factor for citizenship. Descent, there plays a major factor, which ensures that certain ethnic groups in at least half a dozen countries can never be granted citizenship, neither can their children or children‘s children get citizenship. Liberia and Sierra Lione in fact ensures that only those individuals with a ―Negro descent‖ can get citizenship from birth. Restrictive rules are also provided for the naturalization of the non-negroes rather than negroes in Sierra Lione. Liberian law has a provision that individuals without a Negro descent are not only barred from citizenship by birth but are also excluded from citizenship by naturalization to ‗―in order to preserve, foster, and maintain the positive Liberian culture, values, and character‖. Racial preference is also used as a means of discrimination in some countries 43 like Malawi.
North African countries discriminate in the basis of religion as well. In countries like Egypt, Libya and Morocco(until recently), rules of naturalization, deprivation of nationality and recognition create a discrimination against non-Arabs and non-Muslims. In Algeria, right to nationality although prima facie does not create any discrimination, rules of proof on ‗right to nationality‘ via origin favour persons with Muslim parents. Such laws often leave groups who are not eligible for citizenship at the risk of 44 statelessness. Discrimination is also on the basis or ‗indigenous origin‘ in countries like Uganda. Several countries have also positively discriminated by giving preferential treatment to certain ethnic groups. For instance Ghana extends this principle to African
42Jennie Pasquarella, Unequal Access to Citizenship for Muslims, ACLU (June 22,2010) https://www.aclu.org/blog/national-security/discriminatory-profiling/unequal-access-citizenship-muslims 43 B. Manby, Citizenship Law in Africa :A Comparative Study, African Minds on behalf of Open Society Foundation (May, 6, 2019) https://www.opensocietyfoundations.org/sites/default/files/citizenship-law-africa- third-edition-20160129.pdf 44 Id
24 diaspora members allowing them to become citizens and settle down on conditions easier 45 than those not belonging to African descent.
This discrimination has also extended to right to documentation. For instance, the Egyptian government for years denied Egyptians not belonging to any of the three recognized religion which are Islam, Judaism or Christianity, the right of accessing identification documents. Due to this, around 2000 members of Baha‘i minority present 46 47 in Egypt, were affected by these laws the most.
In Israel, The Law of Return has a somewhat similar character which gives persons of jewish ancestry the right of return. In the event the Jew converts to another religion, he loses the right of return. This resulted in several people from Soviet Russia being recognized as persons competent to return but not being recognized as Jews by Israeli 48 religious authorities.
In Arab countries as well, religion is a predominant factor for citizenship. For instance in Libyan Nationality Law, nationality can be revoked in case of apostasy. Kuwaiti nationality law mandates conversion to Islam for naturalization. Yemeni nationality law refrain non-Muslims from getting citizenship. Omani nationality law denies nationality to a person who holds separate religious beliefs. Hence in these countries, not practicing 49 Islam as one‘s faith may lead to loss of nationality. In Arab and African countries therefore religion may explicitly but positively or negatively operate.
Having conducted a brief study of jurisdictions where religion has defined citizenship laws history of the evolution of citizenship regime in India to understand whether religion emerges as a major factor in such debates. Since citizenship debates have been affected by the question of identity, a brief study of identity formation will be provided in the next section to see how religion emerging as a factor shapes such debate. Afterwards we will
45 Id 46 Id 47 Id 48Abe Hayeem, Israel‟s Unfair „Law of Return‟ THE GUARDIAN (March 11,2010) https://www.theguardian.com/commentisfree/2010/mar/11/israel-return-jews-palestinians (Last accessed May 7, 2019) 49 GIANCULA P. PAROLIN, CITIZENSHIP IN THE ARAB WORLD: KIN, RELIGION AND NATION-STATE, 120 (2009)
25 see how the religion emerged as factor through the constitutional assembly debates in context of Partition. Rather than dealing with them separately the researcher has dealt with them in a narrative arc to show how the progression took place.
2.3 RELIGION IN THEORY & RELIGION IN HISTORY-
CONSTITUENT ASSEMBLY DEBATES AND INDIAN HISTORY OF
PARTITION
Indian history as described by Ramchandra Guha is ‗a series of conflict maps‘ involving 50 caste, class, religion, language whose ‗conflicts operate both singly and in tandem‘. Heterogeneity is a key concept in India. A study of identities present in India has showed that out of the 121 crore population, the Hindu population is at 79.80 % while Muslim population is at 14.23%, Christians constitute 2.30%, Sikhs-1.72%, Buddhists-0.70% , 51 Jain-0.37%, while other religions constitute 0.66% of the total demographics.
In India partition related migration had a profound effect on shaping the country‘s citizenship laws as we would see later. In the twentieth century, it led to the largest 52 transfer of population between two countries. Although the sub-continent was fragmented on communal lines, the resulting political and religious conflicts have had lasting consequences especially on, territorial and political stability along with the 53 economic development of these two countries. Communal hostility was based upon 54 faith between Muslims and Skihs and Muslims and Hindus. Commenting upon South Asian history with regard to partition between India and Pakistan, Joya Chatterji an emninent scholar on partition studies suggests lawmakers and leaders were not the sole creators of the citizenship regime, although they had a role in it. Much of this regime was
50RAMACHANDRA. GUHA INDIA AFTER GANDHI: THE HISTORY OF THE WORLD‘S LARGEST DEMOCRACY, 9-20 (2007) 51 See Census 2011, available at https://www.census2011.co.in/religion.php Last accessed April 5, 2019 52 C. Hemdad Haque, The Dilemma of 'Nationhood' and Religion: A Survey and Critique of Studies on Population Displacement Resulting from the Partition of the Indian Subcontinent 8(2) JOURNAL OF REFUGEE STUDIES 185, 189 (1995)
53 Id 54 Id
26 created by the millions of people displaced during Partition based upon their notions of where they would belong and receive protection.
Before embarking on to the ‗original blueprint‘ of citizenship as Chatterji refers, to the 55 Constituent Assembly Debates it is expedient to look into the pre-colonial models of citizenship in India during colonial times to understand the backdrop of the modern Indian citizenship regime.
The landscape of Indian polity is an indelible mark of colonial rule. The legal status of the citizens in colonial times fed the citizens to protest against the colonial government. In order to understand the citizenship regime of India which will be discussed in the next chapter, its historical roots should be studied closely. Indian citizenship regime could be divided into two broad sections: one is till the end of the colonial period and the other spans the post-independence period.
2.3.1 CITIZENSHIP UNDER COLONIAL RULE
The British Raj in India was established by the East Indian Company through the Charter of 1600 which gave it a trading monopoly. From 1757-1858, India was governed by East th India Company. In the 19 century, the Company shared sovereign power with the Crown which through the Queen‘s Proclamation in 1858 became the primary legal authority in India. India came to be ruled under the British government, being its colony. Initially, the Company‘s legislative powers were restricted. For instance, power was limited to carrying out trade and commerce or to impose penalties etc. With the passage of time, it obtained more legislative and executive powers. Ultimately it also obtained judicial powers by setting up Mayor‘s Courts in Bombay, Calcutta and Madras.
Although company officials gained powers similar to legislators, they were not accountable for it. It exercised its powers as a proxy for the British government for a century till its formal control over India came to an end. Hence the entirety of British
55Joya Chatterji, South Asian histories of Citizenship 1946-1970, 55 THE HISTORICAL JOURNAL 1051 (2000)
27 period is counted till 1858-1957 by historians which makes the colonial span two 56 complete centuries.
Citizenship laws developed in two phases during the colonial period. In the first phase, the mode of administration was shared by both the British government and the East India 57 Company creating a double government. In this phase, there were no specific legal instruments which laid down the citizenship laws. The general laws governing the British subjects were the Regulating Act of 1773 and the Charter of 1774.
The term ‗subject‘ however was not defined leaving it unclear whether only British subjects were connoted or whether residents of British colonies were included as well. Ambiguity was present regarding the status of native Indians and their rights and obligations. The dual government ended in 1858 when the Crown assumed sovereignty as per the Government of India Act, 1858 following the revolt of 1857. This Proclamation 58 bestowed the status of a subject-citizen upon a common person in the Empire.
After this in the second phase, in 1914, the common law notion of nationality was replaced by a codified law and hence the first citizenship law occurred in this era. The British Nationality and Status of Aliens Act, 1914 defined ‗British subject‘ to include ―natural born British subjects‖ and persons who had acquired certificates of naturalization from British authorities. During this period, people of Indian origin had travelled throughout the world in countries like Malaya, Myanmar, Fiji and Guyana and 59 had hoped to return to India after Independence.
British imperial citizenship was extremely hierarchical in nature. This was reflected in colonial citizenship as well. Although formally every person had the uniform status of legal subjects, differential treatment in terms of rights prevailed among them. For example, the right to vote was granted to only some sections. These differential rights moreover contributed to the perception of certain members as a separate class of citizens
56RAMKRISHNA MUKHERJI, THE RISE AND FALL OF THE EAST INDIA COMPANY: A SOCIOLOGICAL APPRAISAL (1974) 57 SINHA, LAW OF CITIZENSHIP AND ALIENS IN INDIA., 69 (1962) 58 JAYAL, CITIZENSHIP AND ITS DISCONTENTS: AN INDIAN HISTORY 37 (2013) 59 Asesh & Thiruvengadam, Report on Citizenship Law : India., European University Institute (July 2017)
28
(generally male) consisted of the educated, landed and propertied class ‗putative 60 citizens‘. They demanded civil liberties and also communicated the political expectations of the representation in the House of Commons. The Queen‘s declaration in the Proclamation of 1858 on non-interference in faith and customs of its Indian subjects and impartial admission in the service of the government was hailed by several 61 personalities like Dada Bhai Naoroji as the Magna Carta of Indian liberties. In the colonial period an implicit agreement emerged between Indian ‗subjects‘ and her colonizers as to who could be such putative citizens, and who could be neither. Apart from this, racial divide also played a role as it fractured a prima facie equal imperial citizenship and was brought up time and again in Imperial Conferences. In the British colonies like South Africa, especially it was a determining factor. Differential treatment in terms of privileges were present as the rights of native Indian was different from that of an European. Racial and class discrimination was codified in the sense that the substantive recognition of the legal status of an Indian as a ‗subject‘ was absent. Obtaining full-fledged citizenship was therefore considered to be a privilege. So, citizenship during the colonial period was determined by race, class and gender. Jayal writes that independence made race irrelevant and universal adult suffrage made gender and class irrelevant. and formal equality of legal citizenship in independent India, in her 62 opinion, came to be marked by religious differentiation.
2.3.2 PRE-PARTITION DISCOURSE OF CONSTITUENT ASSEMBLY DEBATES
In the colonial period, we have seen that Indian citizenship identity was informed by class, race and gender. After the partition and independence, a shift occurred in this discourse. The change can be best understood by an analysis of the discourse of the Constituent Assembly Debates in context of the partition of India. Citizenship at the beginning of the Republic was rooted in the shared identity of sovereign self-governing
60 Supra n. 59 p. 37 61Supra n. 579 pp. 39-40 62 Supra n. 59
29 people gathering as a community of equals which along with adopting ‗national identity‘ as a whole also included each member of the political community in this concept of this 63 national identity. Citizenship at such juncture was undergoing a major transformation. Indians were ceasing to be ‗subject‘ and were proceeding to become ‗citizens‘. Colonial citizenship allowed for recognition of class as well as race thus paving the way for the 64 creation of subject-citizens. However since Indians being under sovereign control, did not fulfill preliminary condition of being a nation, citizenship as a political identity was achieved during this moment of formation of the Constitution. This change in political identity was due to the change in the nature of the polity which led to subsequent questions of self-determination. A political scientist Michael Walzer, observes that an empire is a amalgamation of ―repression of any striving for independence, tolerance for different cultures, religions and ways of life, and an insistence of things remain 65 peaceful‖. After the end of the empire, the questions of group which will occupy power or the group which will dominate comes up which lead to growing sense of religious and 66 cultural differences and paves the way for conflict. This same thing could be observed in India as well. Social psychology locates the threat to identity that is posed by the forces of globalization and modernization as the root cause for Hindu-Muslim conflict in 67 several parts of the world. This threat to identity occurred during the time of partition of India when people were forced to leave their homes and their lives in the wake of two nations that were searching for their identity. Religion emerging through partition was a narrative which influenced this identity formation process and gave the determining discourse in the jus soli and jus sanguinis factor of citizenship debates. This could be best seen from the Constituent Assembly Debates, pre and post partition.
The operative framework of citizenship previously, was that of a subject and a ruler. Constitution makers hence had to deal with ―three dimensions of the question relating to status, rights, and identity, to determine who is to be a citizen, what rights are to be bestowed on the citizen, and the manner in which the multiplicity of claimed identities is
63 ANUPAMA ROY, MAPPING CITIZENSHIP IN INDIA‖ 31, ( 2010) 64 Id at 50 65 SUDHIR KAKKAR& KATHARINA KAKKAR, THE INDIANS: POTRAIT OF A PEOPLE, 155 (2009) 66 Id. 67 Id.
30 68 to be accommodated‖ which involved questioning the legal, political and psychological aspect of citizenship. Although the Constitution laid down the edifice for the conditions of citizenship, in the words of Dr. Ambedkar the ―Constitutional Provisions on citizenship were intended to decide an ad hoc law for the time being and had intended to 69 leave other issues concerning citizenship to the Parliament‖. The constitutional character of citizenship was intended to only deal with the context of Partition and not citizenship as a whole. In India, the creation of identity in context of citizenship therefore was to be driven largely by the future legislative machinations.
So how did the change in the discourse of citizenship occur during the Constituent Assembly Debates?
When the Constituent Assembly met for the first time in December 1946, it had to immediately decide who its citizens would be. Who would be ‗people of India‘ was a question which resonated in the Assembly. Chatterji observes, that till this point, members of the Congress had enthusiastically invoked the ‗people of India‘ or even ‗citizens of India‘ but they had taken a ―very broad bush approach to who would be 70 th constituted in that category‖. On 24 January 1947, an advisory committee on fundamental rights and minorities was set up by Sardar Vallbhbai Patel. Chatterji observes that the name of the committee suggested that minorities and fundamental rights were seen as ‗allied matters‘ as an added protection on top of fundamental rights 71 guaranteed to citizens.
In the first stage of the debate in April 1947, when the partition had not yet occurred, the 72 debate of citizenship had been envisaged on a jus soli basis. Clause 3 of the report of 73 the committee borrowed after the American conception , had recommended that ―every
68Hamid Ansari, Identity and Citizenship, OUTLOOK MAGAZINE (Nov 5, 2019) th https://www.outlookindia.com/website/story/identity-and-citizenship/288434 (Last accessed 5 April 2019) 69 CAD 9.115.178. Article 11 also states that ―Nothing in the foregoing provisions of this Part shall derogate from the power of Parliament to make any provision with respect to the acquisition and termination of citizenship and all other matters relating to citizenship‖ 70 Supra n.59, p.1052 71 Supra n. 59, p. 1052 72This principle remained a part of the Indian Constitution 1950 through Article 5.
31 person born in the Union or naturalised according to its laws and subject to the jurisdiction thereof shall be a citizen of the Union‖. Patel after introducing the report of the interim committee on the fundamental rights, suggested such a ‗broad based‘ conception as per which a person born or naturalized in according to the laws would be a citizen through which it can be inferred that they were influenced by the legacy of British 74 citizenship and subject-hood. Patel vociferously supported the jus soli conception of citizenship deeming it to be the most democratic form of citizenship while explaining that the more 'racial' or 'ethnic' forms of citizenship prevalent in continental Europe had been 75 rejected.
He urged the Assembly to expedite the decision on citizenship clauses stating that the concept could be revised later on. Migration was not yet a concern as can be seen from his statement,
―After all how many people are going outside? A few people. Supposing some children are born outside and if there is any such necessity, this proviso amply covers such 76 difficulties. The difficulties on the opposite side are also covered.‖
There were some opposition to this conception of citizenship. For instance, Dr. Rajendra Prasad remaining unconvinced after K.M Munshi‘s clarification that ‗subject to jurisdiction‘ would include allegiance, raised the question,
―Suppose, a Jap by birth is travelling through the country and while travelling a child is 77 born to him. What happens?‖
Position of children borne of Indian parents but raised abroad was also questioned. B. Das pointed out that the phraseology of the section may have left Indians being subject to economic exploitation since nationality was not defined. This might have led to people born of European descent seeking nationality in state services and later could return as
74 Sukanya Banerjee, BECOMING IMPERIAL CITIZENS: INDIANS IN LATE-VICTORIAN EMPIRE ( 2010) 75 CAD 3.18.17 https://cadindia.clpr.org.in/constitution_assembly_debates/volume/3/1947-04-29 76 CAD 3.18.183 https://cadindia.clpr.org.in/constitution_assembly_debates/volume/3/1947-04-29 77 CAD 3.18.151 https://cadindia.clpr.org.in/constitution_assembly_debates/volume/3/1947-04-29>
32 78 Indians. In some ways such questions brought forth the jus sanguinis concept of descent i.e the idea that Indian ethnicity and blood should determine citizenship.
But Patel vehemently protested against these notions. He stated that it would be inconsistent for the leadership to provide a narrow definition of nationality given that the 79 Congress leadership had demanded full rights of citizens in South Africa. He also berated Prasad for introducing ‗racial phraseology‘ into the constitution due to a ‗few 80 foreigners coming here‘. Patel‘s statements show that up till then citizenship had not yet assumed a communal colour and the possibility of the large scale migrations in India had not been envisaged till then.
Sidhwa at this juncture raised a controversial point by asking being from Sindh, whether he would be entitled to citizenship considering that he is born in Sindh in the hypothetical 81 case that Sindh is not part of India. Sidhwa's question brought into limelight the controversial issue of the status of non-Muslims who, due to their place of birth and domicile being in Pakistan may be deprived of their citizenship. This notion led to controversies on the territorial definition of citizenship and nationality that Patel was adamant on adopting and soon it became apparent that this question could not easily be answered. Thus the discussion of the citizenship clause was postponed leaving the law on citizenship at this point being unsettled.
The concerns which were brought up in the Assembly debates till then were realistic and were not as such defined explicitly by any religious marker. This changed was brought forth by the Partition which we would be dealt with in the next section.
2.3.3 PARTITON-THE TRANSITION IN DISCOURSE
“From the terrace of our house in Cvil Lines I saw rising pillars of smoke from houses 82 set on fire in bazaars”
78 CAD 3.18.141 https://cadindia.clpr.org.in/constitution_assembly_debates/volume/3/1947-04- 79 29 CAD 3.18.176 https://cadindia.clpr.org.in/constitution_assembly_debates/volume/3/1947-04-29 80CAD 3.18.178 https://cadindia.clpr.org.in/constitution_assembly_debates/volume/3/1947-04-29 81CAD 3.18.141 https://cadindia.clpr.org.in/constitution_assembly_debates/volume/3/1947-04-29 82 RAMIN JAHANBEGALOO,INDIA ANALYSED: SUDHIR KAKAR IN CONVERSATION WITH RAMINJAHANBEGLOO, (2009) 33
Indian citizenship had been forged along the ―lines of cultural and religious identity‖ from the colonial past itself, where the "divide and rule" policy of the colonial powers led 83 to fragmentation of religious divides. However these lines were in no manner new. They had been present since the period of Mughal rule, when Emperor Aurangzeb, in an explicit attempt at spreading Islamic law, had imposed the Jaziyah tax on non-Muslims. The lines were present when after his death, the Marathas started revolting against Muslim rulers. Although it is may be said that these identities crystallized during British Raj through the construction of the first census in 1871 or the creation of separate electorates in 1909 or even the bloody Partition, these identities, studies have shown, 84 existed during the time of conflicts between Aurungzeb and Shivaji. Partittion, therefore one could say merely chiseled these lines in the polity of the nation.
The lines of Partition, were prepared by the British Chairman of the Partition Commission Cyril Radcliffe, who barely had any knowledge of Indian conditions through 85 census materials and outdated maps. His recommendations led to 32.5 percent of the non-Muslims (Sikhs and Hindus) in the proposed Pakistani territory while 27 percent of 86 Punjab‘s Muslims were left in the Indian Union. Implementing the recommendations 87 led to the majorities threatening the minorities which was about 5 million on each side. The Partition plan being declared in 3 June 1947, was implemented on August 14, 88 1947. Right after the declaration of the Plan, migration started on both sides.
Violence on an unprecedented scale broke out on August 171947. Eyewitness testimonies, documents and studies showed that the political and administrative machinery in both states failed to gauge the extent of communal massacre and mass
83Ratna Kapur, The Citizen and the Migrant: Postcolonial Anxieties, Law, and the Politics of Exclusion/Inclusion, 8 THEORETICAL INQUIRIES IN LAW 537 , 544 (2007) 84 Dr. Ajay Verghese, Hindu-Muslim Conflict in India : A „Pre-Colonial‟ View. ASIA DIALOGUE , (May 29, 2018) https://theasiadialogue.com/2018/05/29/hindu-muslim-conflict-in-india-a-precolonial- view/ 85Dr. Crispin Bates, The Hidden Stories of Partition and its Legacies, BBC, March 3 2011) http://www.bbc.co.uk/history/british/modern/partition1947_01.shtml accessed 86 Supra n. 53 pp.189-190 87 Supra n. 513pp. 190 88 Supra n. 53 p. 190 34 89 migration. From the divided province of Punjab it spread to several parts throughout 90 the country.
Several thousands of people tried to flee their homes but were attacked in refugee camps and convoys. Although some disturbance was expected, the administration collapsed. The massacre began with riots breaking out in Calcutta on August 16, 1946 due to call for action of the Muslim league to force the government into accepting the ‗two-nation‘ concept. From there it spread to other parts of the country. Mass displacement occurred and within four months of Partition, over 3000 people were killed. More than one-lakh of non-Muslims fled from West Punjab and the North West Frontier Province. Even though Sikhs were predominantly an agronomic force, they were severely tortured which ultimately led them to leave for Pakistan. Millions of Hindus and Sikhs entered India 91 from West Punjab during partition.
On the other side, minorities in India were forced to flee as well. Around 6 million 92 Muslims fled from Pakistan. Although in initial stages, Jawaharlal Nehru cited a smaller number, later on it was acknowledged by the government of India that around 93 one million deaths had occurred. Migration massively increased the population with a corresponding decrease in both the countries
Women particularly became an instrument of such violence. Gender was used to draw boundaries as women were rampantly raped and impregnated. Hindu and Sikh women were to be ‗recovered‘ from Pakistan and sent their ‗homes‘ in India. On the other hand 94 ‗Muslim women‘ were ‗recovered abducted women‘ who had to be taken into custody. th They were placed in detention camps until their government claimed them. On 15 December 1949, in the Constituent Assembly Debates, it was noted that 33000 Hindus and Sikh women had been abducted by Muslims and that the Pakistan government claimed that 50,000 Muslim women had been abducted by Hindu and Sikh men and in
89 MOON, ―DIVIDE AND QUIT: AN EYE-WITNESS ACCOUNT OF PARTITION‖ (1962) 90Supra n. 56, p. 1053 91GYANENDRA PANDEY, REMEMBERING PARTITION 20(2008) 92 93 Id. at 24 Supra n. 53 p.194 94 RITU MENON & KAMLA BHASIN, BORDERS AND BOUNDARIES: WOMEN IN INDIA‘S PARTITION, (1998)
35
India, 12000 women were recovered compared to the recovery of 6000 Hindu women in 95 Pakistan. Roy, writes that the rampant rape, abduction and killing marked women as 96 ‗other‘ in their national space. Through their subsequent restoration and recovery, they were placed in their ‗national‘ space reinforced their otherness. The nation did not claim them as citizens but as ‗Hindu‘ or ‗Sikh‘ women who were to returned in their ‗original homes‘. Urvashi Butalia comments that ―the notion of the home, and indeed the space of home had changed. No longer was it the boundary of the domestic that defined home; 97 rather it was the boundary of the nation‖. Women thus became a tool for creating the communal and religious identity of the members of the state.
The violence of partition rooted the communal identity in the psyche of people of both sides of the country. Sudhir Kakkar, a prominent psychoanalyst recounts in an interview that while his earliest memories of a Muslim was that of his first love Fatima, from the time of Partition, in the minds of the inhabitants in India, Muslims were presented as ―the ‗Enemy‘, as rapists and killers, each one of them! The stand-out image of these latter memories resembled an archetypical Muslim butcher in his lungi and blood flecked undershirt running down the street, waving his big knife which would stab any Hindu who came in his way. Partition he described was like a ―bone sticking out in your throat 98 which you can neither throw out or swallow‖.
This creation of fear in the psyche could be seen when Hindus and Sikhs in districts of Punjab united in an intense hatred of Muslims began in the words of colonial official 99 actively ‗organizing for strife‘. On 22 August 1947, Salma Tasasaddaque Hussain, secretary of the Central Punjab Muslim League and a social worker, spoke of ―the most gruesome, inhuman and brutal assaults by Sikhs and non Muslim soldiers' on 'innocent 100 Muslims‖. The same event could be seen on the other side of the border where,
95 VEENA DAS, CRITICAL EVENTS:AN ANTHROPOLOGICAL PERSPECTIVE ON CONTEMPORARY INDIA, 59 (1995) 96 Supra n. 62, p. 42 97 URVASHI BUTALIA, THE OTHER SIDE OF SILENCE, NEW DELHI: PENGUIN (1997) 98 Supra n.81 p. 5 99 Supra n. 92 p. 24 100 Salma Tasasaddaque Hussain To M. A.Jinnah, ,in Z. H. Zaidi, (ed) JINNAHPAPERS: FIRST SERIES 90 (1947)
36 101 Pakistani military were coming and beating innocent Hindu civilians in their homes. Paramilitary groups-Hindu, Sikh and Muslim carefully planned violence and carried out forced displacement in North India.
Another aspect where partition played out was the question of property. After the migration process across the borders the question rose as to what should be done with the property that the migrants had left behind. Non-Muslim refugees, as per official sources, left behind more than 8 million acres of land in only West Punjab and other property was also left behind in Sindh, Bahawalpur, North-Western Frontier Province, Kharpur and 102 Balochistan. As per Indian estimates, total value of evacuee property of Hindu and Sikh amounted to 38.1 billion rupee and Muslim property amounted to 38.9 billion rupee. 103 Problems were further complicated when it was realized that most of the properties were in Princely States which were ruled by Hindu Rajas and Muslim Nawabs whose rules of property were substantially different from the British. The governments were eager to protect the properties of their emigrants or evacuees and agreed on a central procedure to return the properties to their owners for protecting their rights of 104 citizenship. In this backdrop the West Punjab government enacted an ordinance on Sept. 9, 1947 and an ―Evacuees Act‖ a few days later the same procedure was followed 105 by East Punjab. This principle was re-affirmed in the Inter-Dominion Conference in Delhi as well between both governments.
However, refugees by now settled on grabbed land all over India considered it to be their own property. They had returned to their ‗homeland‘ and hence property occupied by them now also belonged to them. In India, as stated above, most of the property was occupied by Muslims before they had left their homes due to the violence. Sikh and Hindu refugees now refused to give up these properties they had occupied. When administrative authorities tried to occupy the property violent protests broke out. Chatterji
101 Asad Hasim, Memories of Partition, ALJAZEERA, (Aug 2017) https://www.aljazeera.com/indepth/features/2017/08/memories-partition-man-return-pakistan- 170806072221701.html (Last accessed 6th May, 2019) 102Joseph B. Schechtman, “Evacuee Property in India and Pakistan, 24 PACIFIC AFFAIRS 406, 407 (1951) 103 Id 104 Id 105Supra n.54, p. 407
37 notes that these were ―true acts of citizenship which completely changed and shaped the 106 political landscape from below‖.
Property proves to be a ripe area to study how religion dissociated transformed property rights attached to citizenship thus changing the definition of citizenship in the process. The liberal proponents of citizenship Sardar Vallabbhai Patel and Jawaharlal Nehru now changed their narratives and were desperate to prevent ‗looters‘ from taking the 107 property. Moreover they were also posed with the question as to what would happen if the Muslim migrants came back and claimed their property. In view of this, the 'Influx from Pakistan (Control) Ordinance' was promulgated in January, 1948 which stated that ―no person shall enter India from any place in [West] Pakistan, whether directly or indirectly unless... he is in possession of a permit‖. Migrants had to prove their loyalty to the government to claim their property by showing that they never intended to evacuate permanently to Pakistan or they were making a short trip to Pakistan. In October 1948, Pakistan followed the suit.
In the eastern border dividing East Pakistan and India, large scale migrations took place as well. However these were not discussed as much in the Constituent Assembly Debates. The government dismissed a rumour that migration of Hindu refugees there had 108 amounted to half million. Central government insisted that rehabilitation there was 109 quite unnecessary. Property of Muslim evacuees here was not given to Hindu refugees. The migration of east Pakistan assumed a different character as starting from partition it continued. The partition of Bengal was different from that of Punjab in the sense that there was routine small scale violence. Hence it was not discussed as such. However the pattern of migration which started from Partition led to India defining its 110 citizenship regime till two decades.
106Supra n. 56, p. 407 107 Id. 108JOYA CHATTERJI,THE SPOILS OF PARTITION: BENGAL AND INDIA 1947- 1967,CAMBRIDGE UNIVERSITY PRESS NEW DELHI ( 2008) 109 Id. 110HAIMANTI ROY, PARTITIONED LIVES: MIGRANTS, REFUGEES, CITIZENS IN INDIA AND PAKISTAN, 194765 3 (2012)
38
This question of loyalty gave an ethno-nationalist discourse of citizenship more 111 predominance. Muslims who had stayed back had to prove their loyalty to India. Gyanendra pandey states the construction of the minority identity of Muslims took place during this period; all heterogeinity within them was reduced and they simply became 112 ‗Muslims‘. Muslims should 'search their conscience', suggested Sardar Patel in November 1947, 'and ascertain if they are really loyal to this country. If they are not let 113 them go to the country of their allegiance'.
The question of loyalty came up and time and again when the next phase of the Constituent Assembly Debates started. This has been analysed in the next section
2.3.4 POST PARTITION DEBATES
When the Constituent Assembly reassembled again in 1949, it was suddenly faced with the ―arbitrating the various claims to citizenship that would arise as a consequence of the large-scale movements of people, who were coping with fear and violence and confusion 114 about their presumed and attributed identities.‖ There wasn‘t much disagreement on jus soli basis of citizenship which was also upheld by the Motilal Nehru Committee Report of 1928. Hence in the February 1948 Constitution, the jus soli principle was 115 present. Article 5 of the draft Constitution echoed the jus soli principle. However special mechanisms for providing citizenship to partition refugees were inserted since
111Ornit Shani, Conceptions of Citizenship in India and the „Muslim Question‟, 44(1) MODERN ASIAN STUDIES, 145, 154 (2009) 112 G. Pandey, Can A Muslim Be an Indian, 41(4) COMPARATIVE STUDIES IN SOCIETY AND HISTORY 608, 615 (1999) 113This was said during a speech at a public meeting Rajkot, 12 November 1947 See .FOR A UNITED INDIA: SPEECHES OF SARDAR 1947-1950 (1967), 114Supra n. 59 p. 57 115 Article 5 : Citizenship At the date of commencement of this constitution, every person who has his domicile in the territory in India and- (a) who was born in the territory of India: or (b) either of whose parents was born in the territory of India: or (C) who has been ordinarily resident in the territory of India for not less than five years immediately preceding the date of such commencement, shall be a citizen of India provided that he has not voluntarily acquired the citizenship of any foreign State.
39 these required jus sanguinis citizenship. Hence from this point onwards a shift towards jus sanguinis form of citizenship could be noted.
Religion slowly emerging into the jus sanguinis conceptions of citizenship as could be seen from the debates on Articles 5A and Article 5AA (eventually becoming Articles 6 116 and 7 of the Constitution of 1950). Article 5A conferred citizenship to mostly Hindu migrants from Pakistan before July 1948. Those returning after this period would need to register with the government. This clause was not so disputed as it seeked to grant 117 citizenship to ―refugee brethren‖.
118 Article 5AA protected mostly Muslims who had migrated to Pakistan for several reasons but had returned to India under the permit system with the intention of settling ‗here‘ permanently. Despite Ambedkar‘s assurance of flexibility and the ad-hoc manner of citizenship clauses, leaders like P.C Deshmukh and Jaspat Roy Kapoor echoed strong 119 ‗nationalist‘ sentiments. P.C. Deshmukh proposed to amend the proposed citizenship provision with an amendment that sought to make all Hindus and Sikhs citizens of India
116 Article 5A ― Notwithstanding anything contained in article 5 of this Constitution, a person who has migrated to the territory of India from the territory now included in Pakistan shall be deemed to be a citizen of India at the date of commencement of this Constitution if- (a) he or either of his parents or any of his grand-parents was born in India as defined in the Government of India Act, 1935 (as originally enacted); and (b) (i) in the case where such person has so migrated before the nineteenth day of July 1948, he has ordinarily resided within the territory of India since the date of his migration; and (ii) in the case where such person has so migrated on or after the nineteenth day of July 1948 he has been registered as a citizen of India by an officer appointed in this behalf by the Government of the Dominion of India on an application made by him therefore to such officer before the date of commencement of this Constitution in the form prescribed for the purpose by that Government‖ ―Provided that no such registration shall be made unless the person making the application has resided in the territory of India for at least six months before the date of his application‖.
117 CAD9.115.156 https://cadindia.clpr.org.in/constitution_assembly_debates/volume/9/1949-08-10 118Article 5AA dealt with ―Rights of citizenship of certain migrants to Pakistan.: Notwithstanding anything contained in articles 5 and 5-A of this Constitution a person who has after the first day of March 1947, migrated from the territory of India to the territory now included in Pakistan shall not be deemed to be a citizen of India : Provided that nothing in this article shall apply to a person who, after having so migrated to the territory now included in Pakistan has returned to the territory of India under a permit for resettlement or permanent return issued by or under the authority of any law and every such person shall for the purposes of clause (b) of article 5-A of this Constitution be deemed to have migrated to the territory of India after the nineteenth day of July 1948‖ .
119 Jaspat Roy Kapoor, (CAD 9.115.156) Deshmukh (CAD 9.115.33) https://cadindia.clpr.org.in/constitution_assembly_debates/volume/9/1949-08-10
40 120 if they were not citizens of any other country already. He further insisted on providing citizenship to only Hindus seeing it would be unfair to deprive them of a ‗homeland‘ 121 since Muslims had Pakistan to call home.
Jaspat Roy Kapoor insisted on deleting the terms ‗deemed to be citizens‘ for referring to those who were migrating back to India. Interesting here is his usage of the term ―refugee‖ to describe the people who migrate to India as the same connotes some sort of 122 fear of persecution that the person must have faced.
Article 7 however did not receive similar sort of response from Jaspat Roy Kapoor and he 123 went on to regard the same as an ―obnoxious clause‖ . His argument was:
“once a person has migrated to Pakistan and transferred his loyalty from India to Pakistan, his migration is complete. He has definitely made up his mind at that time to kick this country and let it go to its own fate, and he went away to the newly created Pakistan, where he would put in his best efforts to make it a free progressive and 124 prosperous state. We have no grudge against them...”
125 When fear was voiced as one such factor for migration to Pakistan , Jaspat Roy Kapoor said that though some or quite a good number of them went because of disturbances here, there was hardly any doubt that even without disturbances they would have done the same as they themselves had demanded the transfer of population to a separate 126 country .
120CAD 9.115.33 https://cadindia.clpr.org.in/constitution_assembly_debates/volume/9/1949-08-10
121 CAD 9.115.33 https://cadindia.clpr.org.in/constitution_assembly_debates/volume/9/1949-08-10
122 CAD 9.116.84 https://cadindia.clpr.org.in/constitution_assembly_debates/volume/9/1949-08-10
123CAD 9.116.102 ) https://cadindia.clpr.org.in/constitution_assembly_debates/volume/9/1949-08-10
124 CAD 9.116.103 https://cadindia.clpr.org.in/constitution_assembly_debates/volume/9/1949-08-10 125 CAD 9.116.105 https://cadindia.clpr.org.in/constitution_assembly_debates/volume/9/1949-08-10
126 CAD 9.116.105 https://cadindia.clpr.org.in/constitution_assembly_debates/volume/9/1949-08-10
41
Property again reared its head in this debate. One of the reasons why Jaspat Roy Kapoor regarded Article 7 as ‗obnoxious‘ was due to his concern about the status of the properties that the people who had migrated to Pakistan and then again return to India th after the cutoff date of 19 July, 1949, used to own while in India. He feared that after coming back they would demand the same (although they were evacuee properties) since it would be absurd for the state to give them citizenship back but not return their 127 properties . It would be injustice, as in his opinion those same properties could be used 128 to settle the ―refugee brethren‖ . Hindus and Sikhs but not Muslims were welcomed in the Indian identity. Hindus would be entitled to claim property. They had on their way to this land, thought of this beloved country of theirs ―and immediately on reaching those 129 borders, with a great sense of relief they cried out "Jai Hind". Sardar Bhopinder Singh regarded the same as injustice to the Hindu and Sikh refugees who were waiting 130 resettlement in the country . He regarded the ―Hindu and Sikh refugees‖ as sons of the 131 soil at par with anyone else . Prof. K.T Shah, in the same line stated that those abandoning the country even out of panic meant that they had given up their birthright and reasonable proof for settling was required not merely taking advantage of ―generosity 132 and liberalism in this regard‖. Many like Shibban Lal Saxena alleged that Article 5 133 provided citizenship very cheap and that such a clause would provide citizenship to 134 classes of persons to whom the country would not like to give citizenship to. fear of outsiders coming and reducing the indigenous population to a minority was a concern voiced by some members like Rohini Kumar Roy and Das Bhargave in case of States like 135 Assam,. Thus considerable alteration in demographics due to migration was also an apprehension voiced in the Assembly.
127CAD 9.116.108 https://cadindia.clpr.org.in/constitution_assembly_debates/volume/9/1949-08-10 128CAD 9.116.109 https://cadindia.clpr.org.in/constitution_assembly_debates/volume/9/1949-08-10 129 Id 130 CAD 9.116.229 https://cadindia.clpr.org.in/constitution_assembly_debates/volume/9/1949-08-10 131CAD 9.117.1 https://cadindia.clpr.org.in/constitution_assembly_debates/volume/9/1949-08-10 132 CAD 9.115.38 https://cadindia.clpr.org.in/constitution_assembly_debates/volume/9/1949-08-10 133 CAD 9.116.153 https://cadindia.clpr.org.in/constitution_assembly_debates/volume/9/1949-08-10 134 CAD 9.116.154 https://cadindia.clpr.org.in/constitution_assembly_debates/volume/9/1949-08-10 135 See Das Bhargav & Rohini Kumar Roy, 9.116.65 , 9.117.91, 9.117.97, 9.117.98 19) https://cadindia.clpr.org.in/constitution_assembly_debates/volume/9/1949-08-10
42
Citizenship thus became a highly contentious issue which can be seen when Jawaharlal Nehru, supporting the proposals made by B.R. Ambedkar commented that the citizenship provisions under the Constitution were the ones that had received maximum 136 consideration .
Criticizing the wanton usage of the word secular in the debates Nehru pointed out that by saying that the country is a secular state does not mean that it some extraordinary feat, 137 but it is only something that almost all the countries do .
Alladi Krishnaswami Ayyar, one of the most secular voices of the Constituent Assembly also provided strong arguments for the Articles. Eventually he silenced the debate by denying the relationship between property and citizenship in either municipal or 138 international law. Others like Brajeshwar Prasad, Maulana Mohd. Hifzur Rehman and Hirday Nath Kunzru also came out vehemently in support of the provisions.
The issue of citizenship was one of the most hotly contended ones in the Constituent Assembly. Discussions that took place in 1949 differed greatly from those that took place in 1947 because of the issue of Partition. All the aforesaid amendments moved by the likes of P. Deshmukh, Das Bhargava and K.T. Shah were either removed or were defeated on vote and the Constituent Assembly retained all the draft articles it had prepared. However, the Constituent Assembly debates were interesting due to a number of reasons.
Firstly, jus soli was accepted as the principle of provision of citizenship in the country as opposed to jus sanguinis which has a distinct racial bias. The jus soli regime introduced by Article 5 of the Constitution of India was tempered by domicile and descent-based considerations complementary to citizenship by birth. Jayal argues that jus soli principle remains at the foundation of the constitutional provisions relating to citizenship though
136CAD 9.117.25 https://cadindia.clpr.org.in/constitution_assembly_debates/volume/9/1949-08-10
137CAD 9.117.33https://cadindia.clpr.org.in/constitution_assembly_debates/volume/9/1949-08-10
138 CAD 9.117.36 https://cadindia.clpr.org.in/constitution_assembly_debates/volume/9/1949-08-10
43 statutory law in the country has, through various amendments, incorporated jus sanguinis 139 in Indian jurisprudence.
Religious undertone was evident in the Constituent Assembly Debates when the Hindus 140 were called ‗refugees‘ while Muslims were called ‗migrants‘. The usage of the term ―refugee‖ for persons covered under Article 6 and ―migrant‖ for persons covered under Article 7 is of particular interest as the subtle usage of terminology assumed that the former category fled Pakistan always due to the ―fear of persecution‖ while the same was not the case for persons migrating to Pakistan initially. Although the terminologies of refugee and migrant was not used in the Constitution, Jayal notes that during the debates 141 they were prominently used concealing the ―religious identities they encoded‖.
2.4 CONCLUDING REMARKS
Citizenship as an identity carries an element of inclusion. Depending upon the societal circumstances, the moment when the political community is created, the governing markers of this identity becomes prominent. In India, this happened during the when the political and legal definition of citizenship was being decided. Partition was an event that brought the already present religious markers into limelight. The Constituent Assembly Debates, records this shift. Colonial citizenship which hinged on race and class came to an end and citizenship on religious lines determined the citizenship as an identity. The Partition discourse and the shift in the Constitutional theory discourse was the genesis of inclusion of the religious markers into the legal framework of India. Although the principle of jus soli was adopted at the inception of this legal discourse, by placing the reigns in the hands of the Parliament, the floodgates were opened for religion to creep in through jus sanguinis principles later on in the post independence period.
139Supra n. 59,p. 57 140Supra n. 59, p. 58 141Supra n. 59, p. 58
44 CHAPTER 3
POST-INDEPENDENCE DISCOURSE ON
CITIZENSHIP
In the previous chapter the researcher has dealt with how religion is underlying the character of citizenship in India, reared its head and became a factor in the legal discourse. The Constituent Assembly Debates dealing with citizenship in India showed how the jus sanguinis character of Indian citizenship carried religious undertones. In order to understand how religion has emerged to be a prominent factor again, it is necessary to analyze the change in discourse of citizenship in Indian legislative discourse after the Constitution of India 1950 came into effect. In this chapter, the citizenship discourse in post-independent India is catalogued into three sections. The first deals with developments till the enactment of the Indian Citizenship Act, 1955, the primary statute governing citizenship as a legal status. The second section records the conversion from a jus soli citizenship regime to a jus sanguinis regime due to the vast amount of illegal 142 migration in 1980s. The third section deals with the contestations with regards to the creation of ‗Assamese exception‘ which marked a high point of the jus sanguinis interpretation. In each of these phases, the researchers seek to trace the markers of religion.
3.1 CITIZENSHIP: FROM ENACTMENT OF THE INDIAN CONSTITUTION TILL THE INDIAN CITIZENSHIP ACT 1955
143 After the debates which took place on the issue in the Constituent Assembly, the finalized citizenship provisions were provided for under Part III of the Constitution of
142KAMAL SADIQ, PAPER CITIZENS: HOW ILLEGAL IMMIGRANTS ACQUIRE CITIZENSHIP IN DEVELOPING COUNTRIES (2009) 143 th The final Debates on citizenship provision concluded on 12 August 1949.
45 144 India. Article 5 of the Constitution stated that citizenship would be granted on the basis of birth and naturalization as per the principle of jus soli citizenship at the commencement of the Constitution to every person domiciled in the country and was either:
• Born in the territory of India
• Either of whose parents were born in India, or,
• Who has been residing ordinarily in the territory for not less than 5 years preceding the commencement of the Constitution.
During the debates it could be seen that article 5A dealt with the migration of ‗refugees‘ in India. In the Constitution of 1950, this became Article 6 which dealt with the provisions of citizenship to persons who have migrated to India from Pakistan. The article provided for two stipulations for such person to be deemed to be an Indian citizen.
He or either of his parents or any of his grandparents must have been born in what was 145 ‗India‘ as defined in the Government of India Act, 1935 and
th • In case the person so migrated before 19 July, 1948- he has been ordinarily resident in the territory ever since, or
th • In case the person migrated on or after 19 July, 1948- he has been registered as a citizen of India in the prescribed manner. However, such registration would only be possible if the person resides in the country for at least six months immediately preceding the date of his application.
144 5. Citizenship at the commencement of the Constitution.- At the commencement of this Constitution, every person who has his domicile in the territory of India and- (a) who was born in the territory of India; or b) either of whose parents was born in the territory of India; or (c) who has been ordinarily resident in the territory of India for not less than five years immediately preceding such commencement, shall be a citizen of India. 145 Section 5. Proclamation of Federation of India. 5.-(1) It shall be lawful for His Majesty, if an address in that behalf has been presented to him by each House of Parliament and if the condition hereinafter mentioned is satisfied, to declare by Proclamation that as from the day therein appointed there - shall be united. in a Federation under the Crown, by the name of the Federation of India,- (a) the Provinces hereinafter called Governors' Provinces ; and (b) the Indian States which have acceded or may thereafter accede to the Federation ; and in the Federation so established there shall be included the Provinces hereinafter called Chief Commissioners' Provinces.
46
As per Article 6, 19th July 1948 was the date set for granting citizenship to people who have migrated before or after that date as per Article 6. This date was set since on 19.7.1948, the Influx from West Pakistan (Control) Ordinance, 1948 was enacted introducing a permit system allowing people to go to India from Pakistan. A Notification was issued by the Central Government on 15th February 1949 under which any person, 146 who had entered India unlawfully in contravention of the rules, could be removed.
These permit rules continued till 29th April, 1950 when the Indian Passport Rules, 1950, 147 under the Passport Act, 1920 , were enacted. As per these rules, it was mandatory for any person coming from Pakistan to India to have a passport with the necessary visa. After this the citizenship clause of certain migrants from Pakistan to India (Article 6 of the Constitution) was included in the Constitution of India, 1950.
Article 5AA dubbed as the ‗obnoxious clause‘ in the Constituent Assembly was st translated into what became Article 7 which provided that any person who, after 1 March, 1947 migrated to Pakistan from India shall not be deemed to be citizens of India, but if such person went back to India under a permit for resettlement or permanent return, then he/she must register himself/herself and shall be deemed to be a citizen of the country thereupon.
In view of this article, since it technically provided citizenship to both Hindu and Muslim migrants, Valerian Rodrigues, an Indian political scientist has argued that citizenship in the Indian Constitution adopted an inclusive approach which emphasized upon territory and belonging. He argues that a person was not defined by ‗his‘ location for the purposes of this citizenship but rather he was perceived as an independent being capable of making his/her choice which had to be considered by a free society to ascertain the corresponding 148 weight of the entitlements to be given to him through the ‗citizen‘ title. Moreover, citizenship on top of including the predecessors of people present in India alone also 149 included poor indentured migrant labourers as well. Anupama Roy, another scholar of
146 See para 7. Firoz Meharuddin vs Sub-Divisional Officer And Ors. on 26 April, 1960 AIR 1961 MP 110 147 Rules under the Passport Act in 1950. 148Valerian Rodriguez, ‗Citizenship and Indian Constitution‘ in. POLITICS AND ETHICS OF INDIAN CONSTITUTION Rajeev Bhargava (ed )166-167 (2008) 149 Id
47 citizenship discourse in India however points out that this ‗element of choice‘ which Rodriguez holds in high regard, in the period between enforcement of constitutional provisions and the Citizenship Act, 1955 included as legal possibility in framing the citizenship clause was filled with uncertainties owing to the fact that during this time the element of choice was largely governed by where they would be provided legal protection or where they would belong.
Article 8 of the Constitution provided for citizenship by registration for people whose either parent or any of the grandparents was born in India (according to the Government of India Act, 1935), but who was residing ordinarily in a country outside India and Pakistan. Such person had to get himself/herself registered with diplomatic or consular representative of India in his country of ordinary residence so as to be deemed to be a citizen of the country. Finally the Constitution of 1950 stated that Parliament was to regulate citizenship by laws by virtue of article 11 without being constrained by anything in Part II.
In the period following the enactment of constitutional provisions, questions on interpretation came up before the Court. Article 7 was coming up for consideration in 150 several cases unlike Article 6. In an early case of Allahabad High Court, it was stated that migration consisted of two components: moving from one place to another and 151 intention of settling in the place of destination. In the context of the Constitutional provisions, it further denoted the ‗transfer of allegiance from the country of departure to the country of adoption‘. Roy cites a note by Law Ministry which studied various cases on this particular issue while responding to an inquiry by the Ministry of Home Affairs. 152 Earlier it was held that subsequent conduct must be seen to decide the citizenship of a person i.e whether he had settled in the country to which he had gone and had assimilated in their way of life, whether he held property in the country from which he was migrating. Later on a substantive shift in this discourse could be noted when
150 Supra n. 64, 56 151 Badruzzaman vs The State on 16 August, 1950 (AIR 1951 AL 16) 152 The MHA was concerned about this issue due to a letter by a person born in Quetta, West Pakistan with a view to carry on business in India. (Letter dated 31 January 1958 by Joint Secretary in the Ministry of Home Affairs; File no. 2/4/58 MHA-IC, NAI) & For the response of the Law Ministry, see Letter dated 3 February from the Ministry of
Law:2, File no. 2/4/58 MHA-IC, NAI, as cited in Supra n. 62,pp. 55-60
48
Courts held that any movement out of India into Pakistan would be seen as migration 153 irrespective of any intention to change abode. The constitutional provisions were only intended to determine citizenship at the commencement of the Constitution. The substantive law on citizenship was later laid down by the Citizenship Act 1955.
Women and property were two aspects among others where religion manifested itself in light of partition. In the next section we would see how the laws that evolved to govern these areas carved religion into the identity of the political community thus altering the citizenship discourse of the nation significantly. Although these are not citizenship determinant laws per se, they determined the character of citizenship in this intervening period of uncertainty.
3.1.1 ABDUCTED PERSONS (RECOVERY AND RESTORATION) ACT 1949
Citizenship laws in the post-partition period before the enactment of the Citizenship Act, 1955, was involved in categorizing citizens into ‗those who belonged‘ (to India or 154 Pakistan whichever the case may be) and ‗those who did not‘. Several new categories came into existence: ‗alien‘, ‗displaced‘, ‗refugees‘ etc. While most of these were not 155 covered in law, ‗abducted women‘ was a category defining the identity of women to be included in the new nation-state. The governments of both countries following partition agreed mutually on procedures to recover women and children. Such procedures received a special focus in the Inter-Dominion Conference which was instituted through Ordinances passed in January 1948 (India) and May 1948 (Pakistan). In India, the Abducted Persons (Recovery and Restoration) Act was passed in 1949 by the Constituent Assembly which was operative till 1957.
Since women became instruments of national identity in the partition discourse for the purposes of this Act, therefore, Hindu women were recovered and restored to their 156 homes. ‗Abducted person‘, in fact under this Act was defined as a male child under 16
153Shanno Devi v. Mangal Singh AIR 58 1961 SCR (1) 576 154Supra n. 111 p. 18 155Supra n. 64, p. 40 156 Article 6 of the Abducted Persons (Recovery and Restoration) Act, 1949
49 years or a female of any age who being a Muslim before first day of March 1947 was separated from his/her family or and is living under the control of any individual of 157 family before the first day of January, 1949. Through this Act, ‗Muslim abducted persons‘ constituted a separate class. This Act also extended to only parts of India such as United Provinces, Provinces of East Punjab and Delhi, East Punjab States Union, United States of Rajasthan and Patiala. ‗Recovered‘ Muslim women were placed in camps which 158 the government was authorized to do under section 3 of the Act. Baxi observes that they were ‗impure body populations who had no claims to citizenship‘ and no man could 159 160 claim that they had been illegally detained in camps unlike routine law. Section 4 gave powers to police officers authorized by the provincial government to conduct search and seizure of any ‗abducted person‘ without warrant in a place where he suspects one to 161 be residing and deliver them to the nearest camp. Section 6 provided for constituting a tribunal by the Central government for deciding the ‗abducted‘ identity or the question of
157 Section 2(1) of the Act. 158 Section 3. Establishment of camps and notification thereof and of officers in charge :- (1) The Provincial Government may establish as many camps in the Province as it may consider necessary for the reception and detention of abducted persons, and any place established in the Province before the commencement of this Act for the reception and detention of abducted persons shall be deemed to be a camp established by the Provincial Government within the meaning of this section. (2) The Provincial Government shall, as soon after the commencement of this Act as may be practicable, notify in the official Gazette all camps in the Province and the names of officers in charge thereof
159PratikshaBaxi: ―Habeas Corpus: Judicial Narratives of Sexual Governance‖ CSLG Working Paper Series, CSLG/WP/09/02. Centre for the Study of Law and Governance, New Delhi, April. Cited in Supra n. 64,p. 43 160 Section 4. Powers of police officers to recover abducted persons :- (1) If any police officer, not below the rank of an Assistant Sub-Inspector or any other police officer specially authorised by the Provincial Government in this behalf, has reason to believe that an abducted person resides or is to be found in any place, he may, after recording the reasons for his belief without warrant, enter and search the place and take into custody any person found therein who, in his opinion, is an abducted person, and deliver or cause such person to be delivered to the custody of the officer in charge of the nearest camp with the least possible delay. (2) In exercising any powers conferred by sub-section (1) any such police officer may take such steps and may require the assistance of such female persons as may, in his opinion, be necessary for the effective exercise of such power 161 Section 6. Determination of question whether any person detained is an abducted person :- (1) If any question arises whether a person detained in a camp is or is not an abducted person or whether such person should be restored to his or her relatives or handed over to any other person or conveyed out of India or allowed to leave the camp, it shall be referred to, and decided by, a tribunal constituted for the purpose by the Central Government.
50 162 restoration of such person. Section 8 further stated that any detention in any camp would not be questioned by any legal authority.
Long periods between abduction and recovery, government‘s refusal to acknowledge the ‗forced marriages‘ which had taken place in this duration, cases where the women were kept in the protection of a known family complicated the matters more than it seemed 163 from law. The constitutionality of this Act was challenged on the grounds of Articles 14, 16, 19 (1)(d), 19(1)(e), 19(1) (g) 21 and 22 before the Supreme Court, in State of 164 Punjab V. Ajaib Singh & Anr. Neither the Supreme Court nor the Punjab High court considered it unconstitutional to the point of saying that owing to the large number of ‗abducted persons‘ in India and Pakistan, the Act had to be judged on purely legal considerations and not on the question of constitutionality as it dealt with restoring abducted women and children during the times of Partition when ordinary laws could not have had any result. These regulations of recovery and abduction concerned the ‗nation‘ 165 and therefore the ‗beneficial legislation‘ predated the Constitution. A similar stance 166 was also taken in Smt. Bimla Devi V. Chaturvedi &Ors. Here as well, the Court upheld the validity of order of Tribunal. It is significant to note that judges found it inconceivable that restoration could occur without ‗choice‘. Restoration of these ‗abducted persons‘ seemed to be the most natural thing and the element of coercion was made non-existent as in the judges view‘ coercion was something unimaginable. Through these cases, choice and constitutionality was made redundant as the ‗national identity‘ reigned superior over both.
162 Section 8. Detention in camp not to be questioned by Court :- Notwithstanding anything contained in any other law for the time being in force, the detention of any abducted person in a camp in accordance with the provisions of this Act shall be lawful and shall not be called in question in any Court 163Ritu Menon & Kamla Bhasin , Recovery, Rupture and Resistance: Indian State and Abduction of Women During Partition, 28(17) EPW WS2,WS12 (1993) 164 AIR 1953 SC10 165 Id 166 AIR 1953 All 613
51 3.1.2 ENEMY PROPERTY ACT, 1965
Another act, although it came after the 1965 War, also dealt with identity to some extent. This was the Enemy Property Act, 1965. Previously called Evacuee properties, these were left in charge of a Custodian of Evacuee Property after their original owners migrated to Pakistan. After the 1965 War, India and Pakistan agreed on the return of the property which, merely led to changing the ‗evacuee‘ property to ‗enemy property‘. With the change in the character of citizenship, till now, a change also took place in terms of determining property ownership. Hindus who had frequently migrated to Pakistan which had led to their properties termed as ‗evacuee‘ now had to prove that they were not ‗enemies‘ in order to reclaim their property. The same went for the descendants of these Hindus. A women‘s claim to property was also governed by her husband‘s religious 167 identity.
Till the 1980s, the citizenship discourse in India mostly followed the principle of jus soli. Descent till then had not been much of a consideration. Although this Hindu-Muslim always had been a factor in Indian citizenship it was not encoded in the legislative framework. This tone was gradually shifted during the 1980s after the War of 1971 and at the centre of this ‗changing tone of citizenship‘ was the Eastern part of the country. In the next section we shall discuss the development from 1955 till the 1980s till the Citizenship Act came into force. During this time, migration in the Eastern area of the country was ongoing. However rather than discussing it in this section, it will be more expedient to discuss it along with the subsequent changes in the citizenship Act in the next section.
3.2 CITIZENSHIP ACT, 1955 AND THE SUBSEQUENT AMENDMENTS TO THE CITIZENSHIP LAWS
3.2.1 THE CITIZENSHIP ACT, 1955
The statutory law regarding citizenship in India was provided under the Citizenship Act 1955, made by the Parliament of the country in pursuance to the powers provided to them under Article 11 of the Constitution of India. Such power had also been provided vide the
167 Supra n. 59, pp 73-74
52
Entry 17 List I of the Seventh Schedule of the Constitution and article 10 of the Constitution.
The Act provided for five modes of acquisition of citizenship:
• Birth
• Descent
• Registration
• Naturalisation, and
• Incorporation of some territory into India
Section 3 stated that ‗every person born in India on or after 26 January 1950 shall be a 168 citizen of India by birth‘. Hence, even if both parents were foreigners, the person became an Indian citizen if born in India, in cases where the father was an ‗enemy alien‘ or born in enemy occupied territory or in case where he possessed diplomatic immunity and was not a citizen of India, citizenship would not be granted by birth. This was similar to the position in the US constitution, where a person acquires the status of a citizen of the US by merely being born in the country even if his parents are foreigners or undocumented (i.e. ―illegal‖) immigrants. Section 3 over the years went through two substantial amendments in 1986 and 2003 which would be discussed later.
Notably, the Act gave the power in favour of the executive for determining and certifying 169 the citizenship of persons in case their citizenship is in doubt.
The Act has been significantly amended from time to time to keep it up to the changing demands. Most of the amendments and its gravitation towards the principle of jus
168 Section 3: (1) Except as provided in sub-section (2) of this section, every person born in India on or after the 26th January, 1950, shall be a citizen of India by birth. (2) A person shall not be such a citizen by virtue of this section if at the time of his birth- (a) his father possesses such immunity from suits and legal process as is accorded to an envoy of a foreign sovereign power accredited to the President of India and is not a citizen of India; or (b) his father is an enemy alien and the birth occurs in a place than under occupation by the enemy. 169Section 13:Certificate of citizenship in case of doubt- The Central Government may, in such cases as it thinks fit, certify that a person, with respect to whose citizenship of India a doubt exists, is a citizen of India; and a certificate issued under this section shall, unless it is proved that it was obtained by means of fraud, false representation or concealment of any material fact, be conclusive evidence that that person was such a citizen on the date thereof, but without prejudice to any evidence that he was such a citizen at an earlier date.
53 sanguinis in this Act however has been significantly developed in light of the developments in Assam. The issue of immigration in the state and the ‗AsomAndolon‘ led to a number of amendments to the Citizenship Act which will be discussed later.
3.2.2 AN OVERVIEW OF MIGRATION IN ASSAM
In order to understand the backdrop of the movements which led to the first amendment in 1986 it is necessary to get an understanding of the migration in Assam.
From British time itself, migration in Assam had started with the growth of new industries for its capacity to create more profits. Before 1947, both East Bengal and Assam were part of British India. Tea production and the presence of wastelands in Assam led to a large scale migration of peasants from East Bengal which was encouraged 170 by the British. Sanjib Baruah points out that the motivation of the British to encourage migration into Assam was not merely economic, but also an attractive colonial political 171 tool by balancing the Hindu and Muslim populations of the State.
In 1874, Sylhet was joined with Assam. Since Sylhet contained a large Bengali speaking population a competition for jobs between Assamese and Bengalis started. Between 1911-1921, there were increased rates of migration in Assam to the point that the Census Superintendent in 1931 remarked that Assam had been ―invaded by a vast horde of land hungry Bengali immigrants, most Muslims‖ from the districts of Mymensingh and East 172 Bengal. This view that is often used in giving a communal tone the demands of expulsion of Muslims is critiqued by Baruah who points out that history is full of
170 The British also found Bengalis to be more suited to carry on administrative work over Assamese on their behalf. SANJIB BARUAH, ―INDIA AGAINST ITSELF: ASSAM AND THE POLITICS OF NATIONALITY‖
55 (1999 ) 171Id. 172Rahul Karmakar, Religion data spotlight on Assam Accord after 30 years, HINDUSTAN TIMES (May 18, 2019) https://www.hindustantimes.com/india/religion-data-spotlight-on-assam-accord-after-30-years/story- UfUxBTwtmp5mu6iJgLmyiP.html (Last visited on April 5, 2019)
54 evidence that the immigrant Bengali population accepted Assamese culture to be their 173 own.
The continuous migration was a concern for British and it was assumed that referendum would put to rest the long standing tensions in the region. However partitional migration had brought along with the fear of identity for original Assamese and a subsequent identity-consciousness amongst the tribal population. Assamese sub-nationalsim present much before the Indian nationalism, was always at odds with pan-Indianism and these tensions as could be seen during anti-colonial struggles which became more prominent 174 after Partition.
A fear of the foreign ‗Muslims‘ was at the heart of the Assamese movements. The Partition had brought forth a large amount of Hindus which continues till this day while migration of economically poor migrants continued. In 1947 the Assamese and in particular the Assamese Hindu middle class gained control of the government of independent India. It was for the first time in more than hundred and fifty years that the 175 Assamese could wrest power.
Assamese was made the official language of the State and preference was to be given to 176 the original Assamese in administrative services, including teaching positions . In their quest, they were aided by two communities- the Biharis and the Bengali Muslims who 177 declared to the Census enumerators that Assamese was their native language.
3.2.3 THE IMMIGRANTS (EXPULSION FROM ASSAM) ACT, 1950
In 1950, the Immigrants (Expulsion From Assam Act) was passed to check the demographic shift in balance due to unchecked migration of East Bengal. As per its Statement of Objects and Reasons, owing to the large-scale migration from East Bengal
173 Supra n. 171 p. 57 174 Supra n. 171p. 23 175Myron Weiner, The Political Demography of Assam‟s Anti-Immigrant Movement, 9(2) POPULATION AND DEVELOPMENT REVIEW 279 (1983) 176Id 177Id
55 in Assam faced during that period, the economy, law and order of the place was disrupted 178 thus requiring the enactment of the said law. Section 2 of the Act provided the Central Government the power to order the expulsion of certain immigrants if it was of the opinion that any person or persons has or have come into Assam, having been ordinarily resident in any place outside India. In such case, such person could be directed to be remove themselves from the state or the country within a specified time if the Government was of the opinion that the stay of such person/persons in the state is 179 detrimental to the interests of general public, or, Scheduled Tribes in Assam. The section also said that such a provision was not to apply to any person who had been displaced from or had left the place of residence in any area being part of Pakistan and who has been subsequently living in Assam on the account of civil disturbances or the 180 fear thereof.
Though the act by 1957 had become a dead letter for all practical puposes, it signifies a 181 recognition of the problem of immigration in the State. It also impacted post-Partition politics to a great extent as due the enactment of the enactment of this law after partition, the Bengali Muslims, like elsewhere in the country, turned to the state government for protection due to the fear of this Act. However, the support that the Assamese middle
178 The Statement of Object and Reasons read ―"During the last few months a serious situation had arisen from the immigration of a very large number of East Bengal residents into Assam. Such large migration is disturbing the economy of the Province, besides giving rise to a serious law and order problem. The Bill seeks to confer necessary powers on the Central Government to deal with the situation." 179 Section 2. Power to order expulsion of certain immigrants.: If the Central Government is of opinion that any person or class of persons, having been ordinarily resident in any place outside India, has or have. whether before or after the commencement of this Act, come into Assam and that the stay of such person or class of persons in Assam is detrimental to the interests of the general public of India or of any section thereof or of any Scheduled Tribe in Assam, the Central Government may by order-- (a) direct such person or class of persons to remove himself or themselves from India or Assam within such time and by such route as may be specified in the order; and (b) give such further directions in regard to his or their removal from India or Assam as it may consider necessary or expedient; Provided that nothing in this section shall apply to any person who on account of civil disturbances or the fear of such disturbances in any area now forming part of Pakistan has been displaced from or has left his place of residence in such area and who has been subsequently residing in Assam.
180Proviso to Section 2(b) : Provided that nothing in this section shall apply to any person who on account of civil disturbances or the fear of such disturbances in any area now forming part of Pakistan has been displaced from or has left his place of residence in such area and who has been subsequently residing in Assam. 181 Supra n. 176
56 182 class received from the Bengali Muslims was not available from the Bengali Hindus . They rivalled the Assamese Hindus for control over the middle class occupations including administrative services. These issues were hardly of any importance to the 183 mostly agriculture dependent Bengali Muslims .
A significant development of the effort to ―Assamaise‖ the entire population of the state which was heterogeneous to say the least met stiff resistance from several tribal 184 groups. This gave birth to a series of protests that led to the fragmentation of the state into several smaller pieces.
3.2.4 THE ASSAM MOVEMENT
Due to the Bangladesh Liberation War 1971, a major refugee crisis of both Hindus and Muslims was created and since India supported the War militarily, there was no border control the check the influx of refugees. Previously, the Nehru-Liaqat pact had stated that st refugees returning home by 31 December 1950 would be entitled to get their property back relaxing the date after the Constitutional deadline which gave a ‗fiction‘ that after 185 the calm was restored, refugees would be able to return to their homes. However that changed after Partition. So In February 1972, a joint declaration was made by both 186 governments regarding the task of resettling the refugees.
After Parliamentary elections in 1977, the Assamese turned against the Bengali-Muslims 187 because of various demographic and political reasons. Partition led to a large influx of refugees from East Pakistan to Assam, West Bengal and Tripura. The 1951 census revealed that almost 274000 people had entered Assam since 1947. Many of them were believed to be Bengali Hindus because of the fear of persecution. Weiner argues that since immigration was no longer legal, the Bengali Muslim migrants conveyed to the census enumerators in 1961 that they were born in the State of Assam and Assamese was
182Id 183 Id 184Id 185 Supra n. 64, p. 95 186 Supra n. 64 p. 95 187 Supra n. 176
57 188 their mother tongue. Most Bengali Muslims who entered the state during that time were illegal. Although exact data cannot be obtained, Weiner comes up with a number of 1.8 million population in the 1991 Census. However till 1971, there was no huge growth Muslim population and the growth of Muslims in Assam corresponded to the growth of Muslim population in the rest of India. Till 1971, this trend continued. Between 1971- 1991 Assam saw huge rise in the number of voters in the State indicating the fact of illegal migration. The influx became highly alarming for the local Assamese when the Election Commissioner in the year 1979 in Mangaldai Constituency reported a large 189 increase in the increase of electoral rolls . The voter numbers in Assam grew by more than 50 per cent in less than a decade, in 1979. This sudden surge was also a consequence of the 1971 war which forced massive influx from East Pakistan (now Bangladesh) to 190 various parts of India.
The change in demographics, language, and the large number of foreigners brought forth unease around which the Assam movement began. Leaders of the campaign argued that immigrants from foreign countries, most of whom were from East Pakistan were foreigners or illegal aliens unless they were explicitly given citizenship status in India. It was alleged that these ―non-citizens‖ were inappropriately enfranchised and were included in the electoral rolls. Along with the cultural and political motives, economic justifications also instigated the movement. The immigrant communities were believed to 191 have attained a strong hold on the jobs and businesses of Assam. The All Assam Student‘s Union (AASU) took the lead in the movement claiming to represent large sections of the school and college students in the State and were supported by several regional political parties and literary associations. Their demand was that the electoral rolls prepared by the Election Commission be screened so as to leave out those who had 192 illegally entered the state. Sanjib Baruah regards this phenomenon as a tendency from ―ethnic accommodation‖ to ―ethnic conflict‖ as pre-partition and post-partition
188Supra n. 176 189Supra n. 176 190Kaushik Deka, The Nowhere People, INDIA TODAY, (August 2018) . 191 Supra n. 176 192Supra n. 1746,p.287
58 immigration had never escalated to this extent and was out of the political agenda 193 because of language issues and political interest primarily.
From a movement starting from the Assamese identity, the process slowly took a communal turn. In May 1983 several Muslim members of the AASU issued an ultimatum to the AASU leadership demanding that the pro-Hindu communal tilt in the movement be 194 corrected . They demanded for the proper definition of who were meant by a ‗foreigner‘.
Conflicts between various ethnic groups involved in the movement also began to simmer. Efforts were undertaken to mend those rifts and to make the movement more 195 inclusionary. However a communal turn in the movement, the Assam Accord, 1985 came into existence.
3.2.5 ASSAM ACCORD 1985 & THE CITIZENSHIP (AMENDMENT) ACT,
1986
Nellie, a small town in Guwahati, saw one of the most brutal attacks against Muslim th population highlighting the communal turn that the movement had taken. In 18 of February, Bengali-Muslims living in the adjoining villages were butchered ruthlessly. The attacks were perpetrated by the Lalung tribe along with a few Assamese and resulted in the death of at least a thousand people, mostly women and children leading some authors to describe the event as a quasi-genocidal attempt196. Thousands of people were rendered homeless.
After the Nellie Massacre, the politics of the state changed substantially. The movement gave birth to the Assam Accord which was a settlement between the leaders of the movement and the Government in 1985. According to the Accord, illegal aliens who had entered the state between January 1966 and March 1971 would be disenfranchised for a
193Sanjib Baruah, Immigration, Ethnic Conflict, and Political Turmoil-Assam, 1979-1985, 26 ASIAN SURVEY 1184, 1191 (1986) 194Supra n. 194 p. 1201 195 Supra n. 194 p. 1200 196Supra n. 176 p281
59 197 period of ten years and those who came after March 1971 will be deported. After 10 198 years from the date of detection, the names deleted would be restored. The state Assembly elected in 1983 was dissolved and fresh elections based on revised electoral roles took place in December 1985. An amendment to India's citizenship law that was enacted by the parliament in November 1985 stipulated that noncitizens who are found to have entered Assam between 1961 and 1971 will enjoy all rights of citizens except the right to vote for ten years.
Article 5 Clause 9 of the Accord said that the Government would give due consideration to difficulties expressed by the AASU/AAGSP about the implementation of the Illegal Migrants (Determination by Tribunals) Act, 1983( The details of this Act would be 199 discussed in the next section). Due to the Accord, a large number of illegal migrants became citizens of India. As a culmination of the Assam Accord Section 6A was incorporated in the Citizenship Act in 1985 amendment.
The Statement of Objects and Reasons of the 1986 amendment revealed that one of its stated objectives was ―preventing automatic acquisition of citizenship of India by 200 birth‖. This marked the first tampering process with the principle of jus soli.
In 1986, due to the Assam agitation, an amendment to the Citizenship Act was introduced. which stated that while anyone born in India between January 26, 1950 and before July 1, 1987 automatically becomes a citizen of India by birth even if both his parents are not citizens, persons born on or after July 1, 1987 become citizens only if at least one of the parents was an Indian citizen. Obviously, the purpose of this amendment was to deny citizenship to persons born in India if both parents were immigrants, whether 201 legal or ―illegal‖.
197 See Clause 5.1,5.2,5.3,5.4 of the Assam Accord 1985 198 See Clause 5.6 of the Assam Accord 1958 199 Clause 5.9: The Government will give due consideration to certain difficulties expressed by the AASU/AAGSP regarding the implementation of the Illegal Migrants (Determination by Tribunals) Act, 1983. 200 Statement of Object and Reasons, Citizenship Act, 1986. 201 Markandey Katju, Debate: The NRC Will Not Resolve Assam's Humanitarian Crisis, THE WIRE, ( August 16, 2018) https://thewire.in/politics/nrc-final-draft-citizenship-assam-violence. Last visited 16. 5.2019
60 202 Furthermore, Section 6A (2) of the Act provided that all persons of Indian origin who 203 st came to Assam from Bangladesh before 1 January, 1966 including those whose names were included in the electoral rolls for the General Election of 1967, and who have ordinarily resided since their date of entry in Assam shall be deemed citizens of India st 204 from 1 January, 1966. Section 6(A)(3) provides that those of Indian origin who came st th to the state on or after 1 January, 1966 but before 25 March, 1971 from Bangladesh 205 and has been ordinarily resident ever sincee and has been detected to be a foreigner , had to register himself with specified authority and would be disenfranchised for a period of ten years.
th So those who came to India after 25 March 1971 were deemed to be aliens and the 206 legality of their status would be subject to the decision of the IMDT.
202 Section 6A(2): Subject to the provisions of sub-sections (6) and (7), all persons of Indian origin who came before the 1st day of January, 1966 to Assam from the specified territory (including such of those whose names were included in the electoral rolls used for the purposes of the General Election to the House of the People held in 1967) and who have been ordinarily resident in Assam since the dates of their entry into Assam shall be deemed to be citizens of India as from the 1st day of January, 1966. 203From ―specified territory‖. Section 6A(1) (c) defines ―specified territory‖ as territories included in Bangladesh immediately before the commencement of the Citizenship(Amendment) Act, 1985 204 Section 6A(3) : Subject to the provisions of sub-sections (6) and (7), every person of Indian origin who— (a) came to Assam on or after the lst day of January, 1966 but before the 25th day of March, 1971 from the specified territory; and (b) has, since the date of his entry into Assam, been ordinarily resident in Assam; and (c) has been detected to be a foreigner, shall register himself in accordance with the rules made by the Central Government in this behalf under section 18 with such authority (thereafter in this sub-section referred to as the registering authority) as may be specified in such rules and if his name is included in any electoral roll for any Assembly or Parliamentary constituency in force on the date of such detection, his name shall be deleted therefrom. Explanation.—In the case of every person seeking registration under this sub-section, the opinion of the Tribunal constituted under the Foreigners (Tribunals) Order, 1964 holding such person to be a foreigner, shall be deemed to be sufficient proof of the requirement under clause (c) of this sub-section and if any question arises as to whether such person complies with any other requirement under this sub-section, the registering authority shall,— (i) if such opinion contains a finding with respect to such other requirement, decide the question in conformity with such finding; (ii) if such opinion does not contain a finding with respect to such other requirement, refer the question to a Tribunal constituted under the said Order hang jurisdiction in accordance with such rules as the Central Government may make in this behalf under section 18 and decide the question in conformity with the opinion received on such reference.
205Detection by the Tribunal constituted under the Foreigner‘s (Tribunal) Order, 1964 shall be sufficient proof of the fact that he has been detected as a foreigner. 206 See Infra section 3.2.6
61
Section 3 thus introduced descent based citizenship. The purpose of this amendment was to deny citizenship to persons born in India if both parents were immigrants, whether legal or ―illegal‖. The amendment thus laid down that apart from being born before 1986, the person must also have some relation with the territory through descent. i.e either of his or her parents should be Indian citizens when he or she was born. Through this added requirement of nexus by descent could persons born after the stipulated time period are 207 precluded from automatically acquiring Indian citizenship.
Hence, India, through this amendment took its first step towards a jus sanguinis form of citizenship.
The Assam Accord and the amendments are important as it allowed the government to shift from the Constitutional jus soli conception of citizenship. This localization of Assamese identity could also be seen formerly when Nehru visited Assam as President of National Congress and called forth the Assamese to give preference to ‗national‘ rather 208 than ‗provincial‘ problems. Thus the Central government posited ‗foreigners‘ and ‗illegal migrants‘ as Assamese anxiety not important to national concern.
3.3 CONTESTATIONS OF „ASSAMESE EXCEPTION‟
In these sections the researcher will first give an overview of these three significant judicial and legislative actions which created an ‗Assamese exception‘. This section will discuss the Foreigner‘s Act 1946, the IMDT Act and the Sonowal case to show the discourses in creation of the ‗Assamese exception‘.
3.3.1 FOREIGNER‟S ACT, 1946
First, in 1946, the Foreigner‘s Act, was enacted the backdrop that is not very relevant in today‘s context. This Act being rooted in colonial politics has very little bearing on
207 See Section 3, Citizenship (Amendment) Act, 1986 208 Sanjib Baruah “The Partition‟s Long Shadow: The Ambiguities of Citizenship in Assam”, 13(6) CITIZENSHIP STUDIES 593 (2009),.
62 today‘s circumstances, but nevertheless it has been used to justify the contradiction of migration politics in terms of managing a minority population, constitutionally and 209 politically ”
But how the enactment has been used and is being used today‘s context is one of extreme significance for the purposes of this study. After the Second World War, a number of refuge seekers arrived in India. The British were aware of the potential threat that presence of enemy foreigners could have especially during the times of war. So, a need was felt to stem their flow. Section 2(a) of the act defined ―foreigner‖ as a person who is not an Indian citizen.
The Act provided certain powers to the Central Government to make order for regulating or restricting the entry or departure of all or certain classes or descriptions of 210 foreigners. Section 4 stated that when the order of detention or confinement has been passed against a foreigner, then such a person shall be detained in such a place and 211 subject to such conditions as the Central Government may determine.
Section 9 of the Act placed the burden of proof of proving that a person is not a foreigner or a specified class or description of foreigner lies on that person against whom such allegation of being a ‗foreigner‘ is brought, thus making a deviation from the commonly 212 accepted principle of law that a person who alleges must prove.
209Archit Guha, The Illegal Immigrant Identity and Its Fragments - From Enemy Foreigner to Bangladeshi Illegal Immigrant in (Post)Colonial India, 12 Socio-Legal Rev. 108, 124 (2016) 210Section 3: Power to make orders.—(1) The Central Government may by order make provision, either generally or with respect to all foreigners or with respect to any particular foreigner or any prescribed class or description of foreigner, for prohibiting, regulating or restricting the entry of foreigners into 1 [India] or their departure there from or their presence or continued presence therein. 211 Section 4. Persons on parole.— 1 [(1) Any foreigner (hereinafter referred to as an internee) in respect of whom there is in force any order made under clause (g) of sub-section (2) of section 3, directing that he be detained or confined, shall be detained or confined in such place and manner and subject to such conditions as to maintenance, discipline and the punishment of offences and breaches of discipline as the Central Government may from time to time by order determine.] (2) Any foreigner (hereinafter referred to as a person on parole) in respect of whom there is in force an order under clause (e) of sub-section (2) of section 3 requiring him to reside at a place set apart for the residence under supervision of a number of foreigners, shall w hile residing therein be subject to such conditions as to maintenance, discipline and the punishment of offences and breaches of discipline as the Central Government may from time to time by order determine 212 Section 9. Burden of proof.—If in any case not falling under section 8 any question arises with reference to this Act or any order made or direction given thereunder, whether any person is or is not a foreigner or is or is not a foreigner of a particular class or description the onus of proving that such person is not a
63
This Act was used in the state of Assam to determine the identity of foreigners residing in the State. The burden of proof being placed on the person accused to be a particular class or description of foreigner, that person had to prove he is not.
Due to the politics surrounding Assam Accord, and amendment in Citizenship Act in 1986, the general perception was created that the government was considering the 213 foreigner‘s issue as something detached from the ‗national security concern‘. In order to repress the movement, the government had also introduced, apart from the amendment, 214 instruments. Roy comments that the government after signing the Accord, “was staking out for itself amoral high ground by projecting itself as the legal/constitutional 215 protector of „human rights‟ of the immigrant population.”
3.3.2 THE ILLEGAL MIGRANT (DETERMINATION BY TRIBUNAL
ACT), 1983
The IMDT was enacted in the year 1983 in the background of the ‗AsomAndolon‘ that aimed at expulsion of foreigners from the state of Assam. 1983 was a significant year. It had witnessed the Nellie massacre which had enormous impacts on Assam movement. It had also witnessed turbulent elections which had resulted in several AASU and AAGSP 216 activists being arrested and deployment of paramilitary forces in the state. The elections resulted in the Congress Party being elected to power.
After Bangladesh was formed, it entered into a treaty for friendship, peace and co- operation with India. Under this treaty, both states were prohibited from entering into any 217 military alliance with each other. Due to the increasing flow of illegal migrants Assam from Bangladesh prompted the All Assam Students‘ Union to submit a memorandum to the Prime Minister Indira Gandhi requesting her to take measures. This resulted into the
foreigner or is not a foreigner of such particular class or description, as the case may be, shall notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872), lie upon such person 213 Supra n. 64, p. 100 214 Acts like National Security Act, 1980, Armed Forces Special Powers Act, 1958 and Disturbed Area Act, 1955 were introduced around this time. 215 Supra n.64, p. 100 216 Supra n. 64, p. 103 217 Article 8,India-Bangladesh Treaty of Friendship, Cooperation and Peace 1972
64 enactment of the IMDT Act, applicable only to Assam. It was enacted for facilitating the th process of ascertainment of illegal migrants who came after 25 March, 1971so that they could be deported. The Long title the act recognized that the continued migration of foreigners and who had illegally remained in India was detrimental to the public 218 interest.
The Act led to the creation of an Assam-specific exception in India‘s law of foreigners which was governed by the Foreigner‘s Act, 1946. It placed the burden of proving a person as an illegal migrant on the person who makes the application. In the Foreigner‘s 219 Act the burden of proof lied on the person accused. Therefore it removed the burden from the individuals and placed it upon the neighbors who filed complaints against 220 individuals alleging them to be foreigners. It also mandated a locus standi from the person making the application.
The complaints filed against them would be tried by Tribunals for the determining questions of whether a person is an illegal migrant, in a fair manner and to enable the Central Government to expel illegal migrants from India and for matters connected 221 therewith or incidental thereto.
Section 1(3) of the Act laid down that it would come into force in the state of Assam on th the 15 day of October, 1983 and in the rest of India-on the day notified by the Central Government. In effect, the application of the Act was limited to Assam
218 The Long Title states ―An Act to provide for the establishment of Tribunals for the determination, in a fair manner, of the question whether a person is an illegal migrant to enable the Central Government to expel illegal migrants from India and for matters connected therewith or incidental thereto. WHEREAS a good number of the foreigners who migrated into India across the borders of the eastern and north-eastern regions of the country on and after the 25th day of March, 1971, have, by taking advantage of the circumstances of such migration and their ethnic similarities and other connections with the people of India and without having in their possession any lawful authority so to do, illegally remained in India; AND WHEREAS the continuance of such foreigners in India is detrimental to the interests of the public of India; AND WHEREAS on account of the number of such foreigners and the manner in which such foreigners have clandestinely been trying to pass off as citizens of India and all other relevant circumstances, it is necessary for the protection of the citizens of India to make special provisions for the detection of such foreigners in Assam and also in any other part of India in which such foreigners may be found to have remained illegally‖ 219Walter Fernandes, IMDT Act and Immigration in North-Eastern India 40 30 EPW (2005) 220Section 4 gave an overriding effect to the act over and above the Foreigner‘s Act, 1946 and the Immigrants (Expulsion from Assam) Act, 1950 thus creating this ‗exception‘ 221 Section 5, IMDT
65 The act defined an illegal migrant as:
―illegal migrant‖ means a person in respect of whom each of the following conditions is satisfied, namely:—
• he has entered into India on or after the 25th day of March, 1971,
• he is a foreigner,
• he has entered into India without being in possession of a valid passport or other 222 travel document or any other lawful authority in that behalf
223 Because of this stipulation, the act was thought to be ineffective by many. Walter Fernandes argues that the experience proved them right. He cites certain figures to back his claim. There were 423021 cases that were registered out of which, 65,000 were dealt with by the tribunal and the off them 23,420 were disposed off. As of January 2005 the Tribunal declared 12,424 persons as illegal migrants. Only 1,538 of them have been 224 deported .
3.3.3 SARBANAMDA SONOWAL V. UNION OF INDIA
225 In Sarbananda Sonowal v. Union of India , Mr. Sarbananda Sonowal, an eminent politician of the State and the former president of the All Assam Student‘s Union that was at the forefront of the Assam movements. They claimed that certain provisions of the IMDT Act as unconstitutional and for the consequent declaration that the Foreigner‘s Act and rules made thereunder shall apply to the state of Assam as well. The application of the IMDT Act was limited to the state of Assam. The rest of India was governed by the Foreigner's Act. Under the IMDT, the burden of proof was placed on the person who raises the question as to the other's nationality, whereas, under Foreigners Act, the onus lies on the person who has been alleged to be a foreigner. The main point of contention
222Section 3(1) (c) of the IMDT Act 223 Id 224Id 225 A.I.R. 2005 S.C. 2920
66 had been the fact that not enough people had been detained and deported under the IMDT tribunals.
The Sonowal matter seeked to regulate the so-called "invasion of Bangladesh". The principal grievance of the petitioner in the case was that the IMDT Act was wholly arbitrary, unreasonable and used to discriminate against a class of citizens of India making it difficult secure the detection and deportation of foreigners from India. Although the Foreigners Act, 1946, was applied throughout India the IMDT Act was enacted for making detection and deportation of the illegal migrants residing in Assam easier but it allegedly had failed its objective. As a result of political reasons,, even those provisions of the IMDT Act which provided some protection to genuine Indian citizens against illegal migrants had not been properly enforced. As a result foreigners who had gained entry into Assam after March 25, 1971 without travel documents , valid passports, or other lawful authority to do so, continued residence in Assam which led to the change of the cultural and ethnic composition of the area and the IMDT Act had created a situation where it had become impossible to challenge the presence of a foreigner to secure his detection, deportation or even delete his name from the electoral list. According to the census figures, which had been produced in the writ petition, the rate of growth of the population in Assam was seen to be more than rest of India which reflected that a large number of foreigners had migrated to different areas of Assam and had settled 226 there. As per the Assam Accord the government was bound to consider difficulties expressed by the AASU/AAGSP regarding the implementation of the IMDT Act. The th Accord also provided that foreigners who had entered India after 25 of March, 1971 would be detected and they would be disenfranchised and deported. The amendment to the Citizenship Act that inserted Section 6A of the Act clearly reflected that Foreigner‘s Act and Foreigners (Tribunal) Order would be the governing statutes for foreigner detection in India.
A document signed by the Union Home Secretary and the Chief Secretary of Assam on th the 27 of January 1990 regarding the time-frame for class wise implementation of the Assam Accord and it was mentioned therein that the decision on the Assam Accord
226 Id Para 2,,
67 th 227 would be taken by 28 February, 1991. This demand was reiterated in a meeting between the Union Home Minister, Chief Minister and the representatives of the AASU held on 20th September, 1990. The Union Home Minister had also noted, in a meeting that the developments in this regard were poor. The petitioner also averred that in a Parliamentary address in February 1999 the President of India also said that the repeal of 228 the IMDT Act was under active consideration. It was also pleaded that the matter had national security implications as the Bangladeshis who had crossed the border occupied 229 vast tracts of land near the international border.
The Court held that the IMDT Act had provided hindrance to the process of deporting the illegal migrants by placing the burden of proof upon the State which violated Article 355 of the Constitution as the Central Government had failed largely due to the failure of as the Union to secure Assam against external aggression and internal disturbance caused due to the influx of refugees. The Act was deemed to violate the Constitution and hence 230 was struck down.
The Union of India in its counter-affidavit pointed out that the Foreigner‘s Tribunals set up in the state of Assam according to the provisions of the Foreigner‘s Act had been functioning in the State and were carrying out the task of detection and of the illegal st th migrants who had entered Assam between 1 January, 1966 and 24 March,1971. The IMDT Act had been constituted for the detection and deportation of illegal migrants who th had entered Assam on or after 25 March, 1971. It was also asserted that the mere fact that the IMDT Act applies only to the state of Assam was discriminatory itself in the 231 view of the government and hence the proposal for its repeal was under consideration.
In another affidavit on 24th November, 2004 it was stated that though in the earlier affidavit a prayer was made to examine the constitutional validity of the IMDT Act, but on reconsideration the Central Government has taken a decision to retain the IMDT Act in present form. Several organisations raised a host of allegations that large number of
227 Id 228 Id.
229 Id. 230 Id.Para 32 231 Id.Para 14
68 genuine Indian citizens were being deported under the Foreigners Act. Retention of the IMDT Act was advocated as it introduced an element of judicial scrutiny to determine the 232 citizenship of a person.
The court observed that due to the extremely difficult, cumbersome and time- consuming process laid down under the act laid down under the Act it was very difficult to establish 233 that a person is an illegal migrant. It held that on consideration of both the statutes- the IMDT Act and the Foreigner‘s Act, 1946, the court found the later to be much more effective in identification and detection of foreigners. The court also went on to say that the burden of proof provision of the Foreigner‘s Act is absolutely essential for the 234 purpose of determination of foreigners.
“Thus, there cannot be even a slightest doubt that the application of the IMDT Act and the Rules made thereunder in the State of Assam has created the biggest hurdle and is the 235 main impediment or barrier in identification and deportation of illegal migrants.”
The Court also went on to hold that the provisions of the IMDT Act and rules made thereunder clearly negates the mandate provided under the Constitution under Article 355. Now what is interesting is to note that not only did the Supreme Court declare migrants to be ‗illegal‘ but they were also prone to ‗external aggression‘ as per the 236 judgment. Observing that Muslim population has grown due to migration from Bangladesh in recent years, the Court also commented that the increased Muslim population after turning it into a ‗Muslim majority region‘ will demand a merger with Bangladesh due to the driving force of the ‗rapid growth of Islamic fundamentsalism‘. Consequently, Assam, it continued, would be separated from the north-east and the rich 237 resources of Assam would be lost to the nation.
Roy observes that with these judgement the Court showed a concern for the changing of the religious demography of that region rather than linguistic changes in demography,
232 id. Para 10, 233 Id. Para 28, 234 Id. Para 14 235 Id Para 39, 236 Supra n. 64 p. 97 237 Supra n. 226, Para 24 and 37
69 238 which had been at the root of the all the movements. The Court actively interpreting the issues raised as a rise of Muslim militancy and in apprehension of an "invasion of 239 Bangladesh" struck down the Act.
This judgement reflects the growing nationalism which was on the rise starting from in 240 the 1990s. Since then, the ideology of Hindu majoritarianism had re-emerged in 241 popular discourse via Hindu Right and the cementing of descent in citizenship reached its zenith. Regarding it exclusively as a religious and cultural enterprise and carving religious identity in citizenship it aspires to establish a Hindu State with India. Although the migration issue in Assam was complicated, it was polarized by Hindu Right as a 242 ―tension between a Hindu insider and a Muslim outsider‖.
3.4 DEVELOPMENTS IN CITIZENSHIP DISCOURSE AFTER
2000
In 2003 another amendment was made to the Citizenship Act, which introduced the term ‗illegal migrant‘ in the citizenship discourse and stated that persons born in India after 3 December 2003 ―will become Indian citizens by birth either if both parents are citizens, 243 or if one parent was a citizen and the other was not an illegal immigrant‖. On a closer
238 Supra n. 64 pp. 98-99 239Amnesty International, Between Fear and Hatred: Surviving Migration Detention in Assam 11,(2018) 240Supra n. 84, p.545 241Supra n. 84 p. 545 (2007) f.n 26. The Hindu Right is described as a ‗contemporary right-wing religious and nationalist movement‘ that is devoted to the ideology of Hindutva i.e establishment of India as a Hindu state.
242 Id 243 Section 3 now states ,‖ 3. Citizenship by birth.— (1) Except as provided in sub-section (2), every person born in India,— (a) on or after the 26th day of January, 1950, but before the 1st day of July, 1987; (b) on or after the 1st day of July, 1987, but before the commencement of the Citizenship (Amendment) Act, 2003 and either of whose parents is a citizen of India at the time of his birth; (c) on or after the commencement of the Citizenship (Amendment) Act, 2003, where— (i) both of his parents are citizens of India; or (ii) one of whose parents is a citizen of India and the other is not an illegal migrant at the time of his birth, shall be a citizen of India by birth. (2) A person shall not be a citizen of India by virtue of this section if at the time of his birth— (a) either his father or mother possesses such immunity from suits and legal process as is accorded to an envoy of a foreign sovereign power accredited to the President of India and he or she, as the case may be, is not a citizen of India; or
70 reading led to more complications. Due to these amendments in the Citizenship Act, 1955, several questions about the legal status of children of ―illegal‖ immigrants who 244 were born in Assam comes up . Even if their parents are considered ―illegal‖, children 245 born in India before 1987 would automatically be considered Indian citizens. Children of an ―illegal‖ migrant, married to an Indian would also become Indian in case they were 246 born in the period between 1987 and December 2003.
The amendment also altered the Section 4 of the act that deals with citizenship by 247 descent. It provided that a person born outside India shall be a citizen of India by descent―
(b) his father or mother is an enemy alien and the birth occurs in a place then under occupation by the enemy.]
244 Markandey Katju, Debate: The NRC Will Not Resolve Assam's Humanitarian Crisis, THE WIRE, ( th August 16, 2018) https://thewire.in/politics/nrc-final-draft-citizenship-assam-violence. (Last visited 16 May.2019)
245 Ibid 246 Ibid 247 Section 4: 4. Citizenship by descent.—1[ (1) A person born outside India shall be a citizen of India by descent,— (a) on or after the 26th day of January, 1950, but before the 10th day of December, 1992, if his father is a citizen of India at the time of his birth; or (b) on or after the 10th day of December, 1992, if either of his parents is a citizen of India at the time of his birth: Provided that if the father of a person referred to in clause (a) was a citizen of India by descent only, that person shall not be a citizen of India by virtue of this section unless— (a) his birth is registered at an Indian consulate within one year of its occurrence or the commencement of this Act, whichever is later, or, with the permission of the Central Government, after the expiry of the said period; or (b) his father is, at the time of his birth, in service under a Government in India: Provided further that if either of the parents of a person referred to in clause (b) was a citizen of India by descent only, that person shall not be a citizen of India by virtue of this section unless— (a) his birth is registered at an Indian consulate within one year of its occurrence or on or after the 10th day of December, 1992, whichever is later, or, with the permission of the Central Government, after the expiry of the said period; or (b) either of his parents is, at the time of his birth, in service under a Government in India: Provided also that on or after the commencement of the Citizenship (Amendment) Act, 2003, a person shall not be a citizen of India by virtue of this section, unless his birth is registered at an Indian consulate in such form and in such manner, as may be prescribed,— (i) within one year of its occurrence or the commencement of the Citizenship (Amendment) Act, 2003, whichever is later; or (ii) with the permission of the Central Government, after the expiry of the said period: Provided also that no such birth shall be registered unless the parents of such person declare, in such form and in such manner as may be prescribed, that the minor does not hold the passport of another country. (1A) A minor who is a citizen of India by virtue of his section and is also a citizen of any other country shall cease to be a citizen of India if he does not renounce the citizenship or nationality of another country within six months of attaining full age.]
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(a)if his father is a citizen of India at the time of his birth; on or after the 26th day of January, 1950, but before the 10th day of December, 1992 or
(b) on or after the 10th day of December, 1992, if either of his parents is a citizen of India at the time of his birth:
A closer look at these amendments reveal a sort of gravitation away from the rule of jus soli- the Constitutionally accepted principle of granting citizenship in India was gradually being qualified with jus sanguinis considerations. All the aforesaid amendments made the provisions for citizenship by birth more and more stringent.
3.5 CITIZENSHIP IN OTHER PARTS OF INDIA
There had been frequent waves of migration there in the Western borders. Migrants had come in 1965,1971 and 1992 after the Babri Masjid demolition in Rajasthan and Gujarat more 248 migrants came forth. Legal citizenship was to be obtained through Citizenship Camps by the District Collectors. The delegation of powers, due to Assam agitation had previously been given to the Central government following the allegations of manipulating citizenship in the 249 state. In 2004, an amendment in Citizenship Rules 1956
(2) If the Central Government so directs, a birth shall be deemed for the purposes of this section to have been registered with its permission, notwithstanding that its permission was not obtained before the registration. (3) For the purposes of the proviso to sub-section (1), any 2[person] born outside undivided India who was, or was deemed to be, a citizen of India at the commencement of the Constitution shall be deemed to be a citizen of India by descent only.
248 Supra n. 57, p. 66 249 Rule 8A - Authority to register as Citizens in States of Gujarat and Rajasthan -(1) [In the case of registration of citizens in the State of Gujarat, -
(a) in relation to the districts of Kutch, Patan, Banaskantha and Ahmedabad, -
(i) in respect of Pakistan nationals of minority Hindu community displaced consequent to the wars between India and Pakistan in the years 1965 and 1971, the dependents of such persons married to Indian Citizens or persons of Indian origin; the authority to register a person as a citizen of India under clauses (a), (c), (d) and (e) of sub-section (1) of section 5 of the Act shall be the concerned Collectors of the districts;
(ii) in respect of minority Hindus with Pakistan citizenship who have migrated to India more than five years back with the intention of permanently settling down in India and have applied for Indian citizenship, the authority to register a person as a citizen of India under clauses (a), (c), (d) and (e) of sub-section (1) of
72 conferred these powers upon District Collectors again by making Rajasthan and Gujarat a regional exception. Rule 8A further accommodated ‗minority Hindus with Pakistan 250 citizenship‘. The ‗intention of permanently settling down in India‘ is also adequate to prove citizenship claim to provide these migrants.
3.6 CONCLUDING REMARKS
Due to the political and legal machinations of 1980s, an ‗Assam-specific‘ exception was created. Further the amendments in 1986 showed that the Centre projected the problem of foreigner‘s migration present in Assamese anxiety not of national concern. The Centre playing a contending role sought to monopolize its authority in deciding matters of citizenship. Jayal while agreeing with this has added that conflict between these two concepts present from the very founding moment was reflected in the ‗constitutional settlement of the question and the subsequent shift from jus soli to jus sanguinis created more categories all fundamentally echoing the fault lines between Hindus and 251 Muslims. Due to the perception that a large number of Muslim immigrants living in Bangladesh had invaded India, it could be seen that fear of ‗foreigner‘s which came up section 5 of the Act shall be the concerned Collector of the district where the applicant is ordinarily resident;
(b) in relation to the districts not covered under sub-clause (i) of clause (a), the authority to register a person as a citizen of India under clauses (a) (c), (d) and (e) of sub-section (1) of section 5 of the Act shall be the Secretary, Home Department of the State of Gujarat.
(2) In the case of registration of citizens in the State of Rajasthan, -
(i) in relation to the districts of Badmer and Jaisalmer, in respect of Pakistan nationals of minority Hindu community displaced consequent to the wars between India and Pakistan in the years 1965 and 1971, the dependents of such persons married to Indian Citizens or persons of Indian origin, the authority to register a person as a citizen of India under clauses (a), (c), (d) and (e) of subsection (1) of section 5 of the Act shall be the concerned Collector of the district;
(ii) in respect of minority Hindus with Pakistan citizenship who have migrated to India more than five years back with the intention of permanently settling down in India and have applied for Indian citizenship, the authority to register a person as a citizen of India under clauses (a), (c), (d) and (e) of sub-section (1) of section 5 of the Act shall be the concerned Collector of the district where the applicant is normally resident.]
251Supra n. 57,p.52
73 further diluted these concepts of citizenship. Slowly these concepts creeped into formal law and successive enactments restricted the scope of citizenship. It should be kept in mind, that the fear was in the beginning, a fear of ‗outsiders‘ whether it be Hindu or Muslims. However with the passage of time, with rising nationalist sentiments narratives were distorted more and finally, the fear of foreigner‘s transformed into a fear of ‗invaders from Bangladesh‘ which shaped the judicial discourse and successive amendments to a considerable extent. This can be seen by contrasting the case of ‗refugees‘ in Western borders with ‗migrants‘ in the Eastern borders. While Hindus from Pakistan are always given a refugee status therefore, ‗Muslim infiltrators‘ from Bangladesh are always considered to be outsiders. Religion therefore latently, subtly, but almost in an omnipresent manner has influenced the legal citizenship debate in India in post-independence period.
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CHAPTER 4
ANALYSING CITIZENSHIP AMMENDMENT BILL, 2019
In the previous chapter we have seen how by transforming jus soli to jus sanguinis form of citizenship, the government established itself as the final constitutional authority on deciding the landscape of the citizenship. The formation of the legal framework of citizenship form its inception had religion as a marker its subtle influence, which could be seen in the development of the citizenship framework in the last decade. The widespread authority given by the Constitution and its use by the legislature reached its zenith when it formulated the Citizenship Bill 2019 which redefined the political landscape of citizenship in religious overtones. This chapter is study of the various aspects attached to the Bill and its possible implications in a constitutional and human right perspective.
4.1 BACKGROUND
Under the Citizenship Act, 1955, a person may become an Indian citizen if they are of India parentage or have resided in the country for a long time. However illegal migrants are not provided citizenship and they may be deported or imprisoned under the Foreigner‘s Act, 1946 and the Passport Act, 1920. In 2014, the ruling government in its Lok Sabha election manifesto made the promise that ―India shall remain a natural home 252 for persecuted Indians and they shall be welcome to seek refuge here.‖ While delivering an address at Silchar, on February 22, 2014, Narendra Modi the then Prime Ministerial Candidate for the Ruling Bharatiya Janata Party declared that Assam was troubled due to Bangladeshis. He proceeded to differentiate between two kinds of
252 BJP Election Manifesto Highlights , http://cdn.narendramodi.in/wp- content/uploads/2014/04/Manifesto2014highlights.pdf 2014
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Bangladeshis: ―The first kind come as part of a political conspiracy. And the other kind 253 are those whose lives have been made difficult in Bangladesh‖. Labelling the first kind as Ghuspethiye he declared two months later at another rally in West Bengal that th after 16 May ―these Bangladeshis should pack their belongings and be ready-to leave 254 India‖.
In pursuance of such promises in 2015 and 2016 the Ministry of Home Affairs under the central government issued two notifications to amend Passports (Entry into India) Rules, 1950 and the Foreigner‘s Order 1948 to exempt certain groups of illegal migrants to gain 255 entry in India from the provisions of their parent Acts which essentially meant that they would not be deported or imprisoned and could stay without valid documents.
256 These groups were Sikhs, Hindus, Jains, Buddhists, Parsis and Christians from, 257 Bangladesh, Pakistan, Afghanistan (added later) who had arrived in India on or before 258 December 31, 2014. Illegal immigrants without any valid documents such as a visa or a passport belonging to these communities therefore were not to be deported. In addition, the government also undertook the NRC process in the same vein to identify the illegal 259 migrants from Bangladesh and other countries.
These administrative steps were the precursor to The Citizenship Amendment Bill that was previously introduced in 2015 which was referred to a Joint Parliamentary Committee afterwards. The Committee held discussions with stakeholder groups such as civil society members, public representatives and migrants, government representatives in study visits to Guawahati, Silchar, Shillong, Rajkot, Ahmedabad, Jodhpur and finally rd adopted its report on 3 January 2019 commenting that it was fit to be tabled in the Lok
253Krishn Kaushik, ― The Spectre: Polticians Play On The Fear Of Immigrants In Assam‖, THE CARAVAN, April 2016, at 28 254 Id 255 These Acts are Passport (Entry into India) Act, 1920 and Foreigner‘s Act 1946 respectively. 256 See G.S.R 686 (E) & G.S.R 685(E) https://mha.gov.in/PDF_Other/Noti685EOrder686E_210915.pdf 257 See G.S.R 702(E)& G.S.R (703) (E) https://mha.gov.in/PDF_Other/Noti685EOrder686E_210915.pdf & https://mha.gov.in/PDF_Other/ThePassport(EntryintoIndia)2016_04052017.pdf 258Press Information Bureau, Government of India, Ministry of Home Affairs, “Exemptions to minority community nationals from Bangladesh and Pakistan in regularization of their entry and stay in India” ( September 7,2015). http://pib.nic.in/newsite/PrintRelease.aspx?relid=126688 259 Shaswati Das, Why Citizenship Amendment Bill has Created a Row”, LIVEMINT (Jan 16 2019, 08.10 AM), https://www.livemint.com/Politics/8s04csNIIp4FDDhKoMGPcP/Why-citizenship-amendment-bill-has- nd created-a-row.html (Last Visited 2 February, 2019) 76 260 Sabha. The second time while introducing the bill the government clarified that it would not be only confined to Assam the northeastern State which faces the major issue 261 of migration, but it would be implemented all over India. Finally the Bill was passed in the Lok Sabha where it was passed. However due to adjournment of the Rajya Sabha it was not taken up for discussion which led to the central government to consider passing it 262 as an ordinance before the Lok Sabha elections.
Ever since it was introduced it has been greeted with widespread protests in Northeast with the assertion that the Bill will lead to endangerment with the ethnic identity of the 263 region. From holding to rallies, to returning honours, these protests have taken various 264 forms.
4.2 THE CITIZENSHIP AMENDMENT BILL, 2019
This Bill seeks to amend the Citizenship Act, 1955 to make eligible for citizenship, certain ‗illegal immigrants‘ from Pakistan, Afghanistan and Bangladesh who belong to 265 the Hindu, Christians, Sikh, Budhhist and Jain community. Therefore it amends the definition of illegal migrants.
260 Angshuman Choudhury and Jonmani Das, Januray 25, 2019 “Citizenship Bill: JPC report shows how proposed law violates constitutional principles of equality before law”, FIRSTPOST(Last visited 6th April 2019) https://www.firstpost.com/india/citizenship-amendment-bill-jpc-report-shows-how-proposed- law-violates-constitutional-principles-of-equality-before-law-5952811.html (Last accessed 8th April 2019) 261Press Information Bureau Government of India Ministry of Home Affairs “Union Home Minister introduces the Citizenship Amendment Bill, 2019 in Lok Sabha” (January 8 2019) http://pib.nic.in/newsite/PrintRelease.aspx?relid=187310 262 Sushanta Talukdar, “Citizenship (Amendment) Bill: Centre may take ordinance route if it is not passed during Parliament's Winter Session” FIRSTPOST (Oct 25, 2018, ) https://www.firstpost.com/india/citizenship-amendment-bill-centre-may-take-ordinance-route-if-it-is-not- passed-during-parliaments-winter-session-5444701.html (Last accessed 8th April 2019) 263 The Wire Staff, “As Widespread Protests Continue, Citizenship Bill to be Tabled in Rajya Sabha Today”THE WIRE, (Feb, 12 2019) https://thewire.in/politics/as-widespread-protests-continue- citizenship-bill-to-be-tabled-in-rajya-sabha-today Last accessed on 8th April, 2019 264 Id. 265 See Section 2 of the Citizenship Bill 2019. It seeks to insert a proviso in sub-section (l) after clause (b) : ――Provided that persons belonging to minority communities, namely, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan, who have 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 order made thereunder, shall not be treated as illegal migrants for the purposes of that Act:
Provided further that on and from the
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Moreover it also states that for persons belonging to minority communities such as Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan, the aggregate period of residence or service of a Government in India as required under this clause shall be read as ―not less than six years‖ in place of ―not less 266 than eleven years‖. Hence for the first time, a clear religious line has been drawn for these communities. It has been alleged by several that this Bill goes against the basic tenets of the Constitution and may prove detrimental for the people caught in the crossfire 267 of NRC. Hence in the next section, a critical analysis of the Bill has been undertaken from a Constitutional perspective.
4.3 A CONSTITUTIONAL APPRAISAL OF THE BILL
The first argument which can be raised against this Bill is that it violates the Constitution. Although the amendment does not readily grant citizenship and only makes people eligible for citizenship, nevertheless it places a certain group of people at a 268 disadvantage. The bill therefore positively discriminates against groups of people on the basis of their religion.
Now major arguments here is that goes against the spirit of equality embedded in article 14 and secularism ensured for non-citizens in article 25. Equality has been held to be part of the basic structure of India in the cases of Keshavananda Bharti V. State of Kerala & 269 Anr. while secularism for non-citizens have been part of the basic structure in S.R 270 Bommai V. Union of India as well as the Preamble to the Constitution.
date of commencement of the Citizenship (Amendment) Act, 2019, any proceeding pending against any person referred to in the first proviso shall be abated and such person shall be eligible to apply for naturalisation under section 6.‖. 266 See Section 4 : In the principal Act, in the Third Schedule, in clause (d), the following proviso shall be inserted, namely:— ―Provided that for the persons belonging to minority communities, namely, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan, the aggregate period of residence or service of a Government in India as required under this clause shall be read as ―not less than six years‖ in place of ―not less than eleven years‖.‘. 267 Id 268 Mohsin Alam Bhat, The Constitutional Case against the Citizenship Amendment Bill, 54(3) EPW 3 (Jan1 9,2019) 269 (1973) 4 SCC 225 270 1994 AIR 1918
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The government in its response in the JPC report stated that the Bill did not go against the article 14 since the concept of positive equality encompasses that amongst the equals, the law should be equal and should be equally administered, and that the like should be treated alike. According the response of the government, therefore, a legislature can make reasonable classification for purposes of legislation and treat all in one class on equal 271 footing.
First of all, it has to be seen whether the Bill is applicable to foreigners. In The Chairman, 272 Railway Board & Ors vs Mrs. Chandrima Das & Or the question arose whether a Bangladeshi foreign national woman was entitled to receive compensation on account of rape committed to her from the government. The argument was raised that she was not entitled to make such a claim since she was a foreign national. the question was arose whether Part III would apply only to citizens of this country. The Court while held that some articles like article 14 under Part III is said to be applicable to all persons. ‗Persons‘ under Article 14 would include both citizens and non-citizens and hence in this case would apply to the ‗foreign‘ woman as well.
Now the Bill and orders, create a classification between Muslims and Non-Muslim migrants from Bangladesh, Pakistan and Afghanistan. Another classification is created between migrants from these countries and those from other countries. The third classification is between migrants due to religious persecution and migrants due to other 273 reasons such as race, ethnicity, environment, gender, economic reasons etc.
The justification given by the government is based on the case of Ram Krishan Dalmia V. 274 Justice S.R Tendolkar wherein it was stated that differential treatment is allowed when first of all, the classification made by law is found on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and secondly, the classification must have a rational relation with the object of the Act in
271 Joint Committee on the Citizen (Amendment) Bill, 2016, Report of the Joint Committee on the Citizen (Amendment) Bill, 2016 Lok Sabha Secretariat p. 43 Clause 2.33, (Jan 9,2019) https://www.prsindia.org/sites/default/files/bill_files/Joint%20committee%20report%20on%20citiz enship%20%28A%29%20bill.pdf ) 272 AIR 2000 SC 988 273 Supra n 269 274 1959 SCR 279
79 question. It has to be determined whether such classification meets equal protection requirement and if the classification is rational and has a relation with the object the Bill seeks to achieve.
The first category consisting of Non-Muslims from these countries a class is on the grounds of religion. While introducing the Bill the Central government had argued that it sought to address the issue of protection of ‗religiously persecuted‘ minorities in India‘s 275 international neighborhood. This argument is dubious on several counts. If religious persecution is the ground for separating these communities, then it can be argued that communities like Uighur Muslims from China, Ahmadiya Muslims from Pakistan and Rohingya Muslims from Myanmar have also been persecuted and are liable to protection. In fact, India has witnessed largescale migration from Rohingya Muslims who have been victims from state backed violence in Myanmar and has been termed as the world‘s most 276 persecuted community. The Hazara community has also been subjected to state supported persecution in Afghanistan due to their religious beliefs. Outside Pakistan, Afghanistan and Bangladesh, religious persecution have been pronounced in other countries as well. For instance, in China, Uighur Muslims from Xinjiang region, Ahmadis etc. have been persecuted severely.
The term ‗minorities‘ is not defined in the Indian Constitution anywhere. As per Census 277 2011, Muslims constituted the second biggest minority. Even if the policy was to provide a home for Hindus only, it fails to reason as to why particularly Parsis, Sikhs, Buddhists, Jains, and Christians from Bangladesh are given more precedence over 278 Muslims when Muslims amount to more in number. Interestingly the government before the JPC recognized the existence of Muslim persecuted communities, yet it failed
275 Angshuman Choudhury and Jonmani Das, Januray 25, 2019 “Citizenship Bill: JPC report shows how proposed law violates constitutional principles of equality before law”, FIRSTPOST (2018) https://www.firstpost.com/india/citizenship-amendment-bill-jpc-report-shows-how-proposed-law-violates- constitutional-principles-of-equality-before-law-5952811.html (Last accessed 23rd March, 2019) 276 United Nations Human Rights, Office of the High Commissioner , “Human Rights Council opens special session on the situation of human rights of the Rohingya and other minorities in Rakhine State in Myanmar” ( December 5 2017 ) https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=22491&LangID=E 277 See Census 2011 https://www.census2011.co.in/religion.php Last accessed May 18, 2019 278 Supra n. 267, pp 42& 46
80 279 to justify its ground. Therefore, this particular factor creating such category can be questioned on several grounds. The Bill excludes all of these three groups and only concerns itself with non-Muslims thereby giving a religious character to citizenship. No actual assessment of the degree or nature of persecution was conducted before 280 introducing or at any stage of passing this Bill.
Secondly, this position of disadvantage would be extended to people belonging to these communities migrating from countries where they have faced religious persecution. Since the Bill creates a class. For instance, a Buddhist fleeing from Nepal or China due to religious persecution would be at a disadvantage in gaining citizenship as compared to a 281 Buddhist who fled from Bangladesh. In fact, refugees from Sri Lanka had been present in India due to a long-standing conflict between the Sri Lankan Tamils and the Sinhalese Buddhists. Starting from the independence of India upto the civil war 1980s a large number of them escaped and came to India and has become stateless in the 282 process. The Tibetian refugees who escaped due to war in China is the second largest 283 group. Therefore despite the presence of other refugees from other countries it fails to reason as to why these countries are singled out. So, when this question was raised in the Joint Parliamentary Committee, the government responded that such countries were 284 decided on basis of intelligence reports from other countries. This response however was never probed deeper by the JPC and thus remain unverified as ministry documents 285 are classified in nature.
Finally, India has faced waves of migration due to persecution of Tibetians from China, Tamils in Sri Lanka, Rohingyas from Myanmar, Chakma Hajongs from Bangladesh, Hindu Nepalese migrants fleeing persecution from Bhutan. Hence persecution is not just limited to religion but may be due to ethnic, environmental or linguistic reasons. For instance the one of the reasons the Chakma Hajong refugees took shelter in India,
279 Supra n. 267, p.38 para 2.16 280 Supra n. 267 281 Apurva Thakur, “Why the Citizenship Amendment Bill Goes Against the Basic Tenets of the Constitution 282 Report on Citizenship Law : India” 53(13) EPW (2018) 283 Id. 284 Supra n. 267,p.37 para 2.3 285. No further questions were asked on this matter by the JPC. It moved on issues of PIO following this. See Supra n. 276 See p. .38 para 2.4 & 2.5
81 286 originally due to development of Kaptai Dam on Karnaphuli River. Hence reasons apart from religious persecution may be present.
In light of this discussion, it remains unclear therefore as to how these factors could be excluded from the purview of the ―minority communities fleeing from religious persecution‖ if that is indeed the object of the Bill especially when even recognizing the existence of persecution of Muslims and have been witness to them, their reasons fail to come up to the par of the constitutional standard. None of these classes created relate to the purpose of the law in that case. Therefore both in terms of differentia as well as rational nexus, it fails the test of equality.
In terms of arbitrariness, the Constitutional standard for passing such a policy under this article is that it must not be ―manifestly arbitrary‖. In Maneka Gandhi V. Union of 287 India it was held that reasonableness has been an essential element of the equality or non-arbitrariness which pervades article 14 like a brooding omnipresence. In Sharma 288 Transport V. Government of A.P it was held that the expression ‗arbitrarily‘ meant something which is done capriciously or at one‘s will without any rational any adequate determining principle or without acting as per one‘s reason or judgement. P.K Tripathi argues that arbitrariness is unreasonableness in discriminating between one person and 289 another; if there is no discrimination there is no arbitrariness. In case of this Bill, the determining principle which is ―protecting to persecuted minorities‖ does not seem to coincide with the policy measures taken in this regard which create a clear-cut distinction between several categories without any valid presumption as highlighted through the above discussion.. Therefore a distinction based on religion is seemingly created which
286 Although they also faced religious discrimination on top of this, their case has been used to show that apart from the same, other reasons such as environmentally induced displacement can also be a factor and India is not stranger to this.See The Hindu Net Desk, “Who are the Chakmas?” (Sept 14, 2017) th
Although they also faced religious discrimination on top of this, their case has been used to show that apart from the same, other reasons such as environmentally induced displacement can also be a factor and India is not stranger to this. 287 1978 SCR (2) 621 288 AIR 2002 SC 322 289 P.K. Tripathi, “The Fiasco of Overruling A.K. Gopalan” AIR JOURNAL 6 (1990).
82 goes against secularism under article 25 is guaranteed to non-citizens. This discussion therefore highlights that the Bill fails the Constitutional test spectacularly.
4.4 A HUMAN RIGHTS APPROACH
4.4.1 A DOMESTIC PERSPECTIVE-NATIONAL REGISTER OF CITIZENS
In order to see how it would violate human rights it may be useful to see how it would affect the NRC process. One of the persistent demands in pre and post Partition Assam was the demand for detecting and expelling foreigners from the country. The Immigrants (Expulsion from Assam) Act, 1950 had already been passed and hence identification of the foreigners for that purpose was required. The National Register of Citizens was prepared under the Census of 1951, by the orders of the Home Ministry containing village wise enumeration of persons with details such as number and names of persons. This NRC is not a public as it was a secret administrative document not open for 290 inspection by anybody. It is compiled in separate parts, one relating to each village and each ward of a town and was to be maintained as a permanent record, kept up-to date 291 by collecting information through village officials. Since it was not possible to hand- sort for house slips which related to individuals, the NRC giving details of the individuals arranged by households was used for sorting and tabulating certain features of the 292 households like their size, ordinary structure etc. The NRC may not have necessarily include the names of all the family members. The household of a rich man may include several helps, agricultural workers and others whose names of these people might not be 293 included in the Register.
Therefore in this context it is relevant to consider the impact of the NRC updation process initiated in the state of Assam for the same has deep implications on how the Citizenship Amendment Bill may go a long way in adding a religious tone to citizenship
290Anil Roychowdhury, “Assam-National Register of Citizens, 1951” 16 EPW(1951) 291 Id 292Id. 293Id.
83 294 in India. In the Assam Public Works V. Union of India , the Supreme Court ordered the updation of the NRC for the state of Assam. The Registrar General of India, in pursuance of that decision notified that the NRC shall be completed within the period of three years. The Court also provided a timeline for the NRC updation process at a joint hearing of three writ petitions. The court monitored NRC process delegitimized most of the NRC st applicants vide the first draft NRC published on 1 January, 2018 with the draft 295 containing the names of only 1,90,10,932 applicants out of 3.29 crores. The final draft th 296 th that was published 30 July, 2018 left almost 4 million people out. As of May 18 , 2019, 36 lakhs had filed fresh claims. Almost two lakhs of objections were received 297 against those whose names had been included in the draft. As of now the deadline th provided for the completion of the current exercise is 30 June, 2019. In the first place there is difficulty in gathering data related to Assam on people who migrated from 298 Bangladesh. Due to the NRC crisis a large number of people stand on the verge of being stateless several of whom are Muslims. The Citizenship Bill makes it easier for certain communities to get citizenship easier than the rest of them. Due to repeated denials by Bangladesh as to any migration from their side, these people cannot be 299 deported there. Therefore the only option is to push them back across the borders in case Bangladesh denied their nationality. The other population can therefore be even deported under the provisions of the Foreigner‘s Act, 1946. Instead of showing proof of 300 Indian nationality, proof of Bangladeshi nationality will be needed.
294 2014 SCCOnline SC 1017 295Staff Reporter, Partial Draft of NRC Published , THE SENTINEL (January 1, 2018) https://www.sentinelassam.com/news/partial-draft-nrc-published/ 296Abdul Gani, “Assam: Some Four Million Left Out Of Final India NRC Draft List” AL JAZEERA(July 30,2018) https://www.aljazeera.com/news/2018/07/4-million-people-left-final-draft-nrc-list-assam- 180730044002717.html 297Abhishek Saha, ―Update Of NRC In Assam: As Hearings On „Objections‟ Begin, Allegations Of Fabrication Surface” THE INDIAN EXPRESS (May 8, 2019) https://indianexpress.com/article/north-east- india/assam/update-of-nrc-in-assam-as-hearings-on-objections-begin-allegations-of-fabrication-surface/ (Last accessed 6th April, 2019) 298 Supra n. 267p. 114 299 Supra n. 267, p. 148 300 Id.
84 4.4.2 INTERNATIONAL HUMAN RIGHTS APPROACH
The United Nations raised concerns regarding the NRC updating process and the Citizenship Bill. In a letter to the Centre issued by four officials of the United Nations it was stated that there was no policy that outline the implications of those who would be rendered stateless by the final NRC. It noted that the NRC update has generated anxiety and concerns amongst Bengali Muslims in the state who have been long discriminated against for their perceived foreigner status.
“The proposed amendment suggests a broader context of vulnerability of Bengali 301 Muslims to unlawful exclusion from Indian citizenship.”
The letter highlighted a host of issues like the D-Voter issue, arbitrary detention and deportation, sudden increase in the number of foreigner detection etc. It also highlighted the impact of the then Citizenship Amendment Bill, 2016. In the letter, the UN reminded India of its obligation under the International Convention on Elimination of All forms of Racial Discrimination 1965. The Committee specified that religious discrimination was prohibited under these clauses where it coincided with other forms as well (for instance, national or 302 ethnic origin, descent etc). State parties under it are moreover obliged to protect against and provide remedies for such racial discrimination in its jurisdiction. Furthermore under Article 27 of the ICCPR, India was further reminded of its obligation to protect existence and identity of its minorities within their territories and the State must adopt measures for them to enjoy their human rights and fundamental freedoms (Article 4). The freedom to practice and 303 profess their culture is also provided under Article 3.
301“UN Raises Concerns Over Exclusion Of People From NRC In Assam And Subsequent „Statelessness‟ :Special Rapporteurs Demand Clarification About Procedure, Policy And Safeguards” CJP (June 26, 2018) https://cjp.org.in/un-raises-concerns-over-exclusion-of-people-from-nrc-in-assam-and-subsequent- statelessness/ 302 Mandates of the Special Rapporteur on minority issues; the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance; the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression; and the Special Rapporteur on freedom of religion or belief UNR Special Procedures (11 JUNE, 2018) https://www.ohchr.org/Documents/Issues/Racism/SR/Communications/OL-
IND-13-2018.pdf 303 Id.
85
Due to no receipt of response from the government, in December 2018, the United Nations wrote another letter to the Centre seeking clarification on the treatment of those 304 who were deemed stateless and also the steps taken to uphold minority rights.
The right to a nationality is recognized under international human rights law. It implies the right of each individual to acquire , change and retain a nationality. International human rights law provides that the right of States to decide who their nationals are is not absolute and, in particular, States must comply with their human rights obligations 305 concerning the granting and loss of nationality. Under the Universal Declaration of Human Rights, there are provisions for a right to nationality under article 15 providing that no one should be deprived of their nationality. The General Assembly also recognized the fundamental nature of prohibition of arbitrary deprivation of nationality in 306 its resolution 50/152.
Recently, in a PIL filed by Hiren Gohain-led Nagarikatwa Aain Songsudhan Birodhi Mancha (Forum Against Citizenship Act Amendment Bill) against the Bill, several other areas have 307 been pointed out as well. The PIL states that the notifications and the PIL violate the Assam Accord which treated all migrants after March 1971 as ‗illegal‘ irrespective of their 308 religion. It also further violates Moreover the notifications of 2015 and 2016 are illegal as only the Parliament through law can bring a change in the law on termination and acquisition 309 of citizenship which cannot be overridden by executive orders. This was also noted in the responses to the Bill during the JPC process as it was pointed out that the Bill follows the amendment in Rules. Although the administration
304United Nations Human Rights Special Procedures , Special Rapporteur Independent Members and Working Goups,Mandates of the Special Rapporteur on minority issues; the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance; the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression; and the Special Rapporteur on freedom of religion or belief (June 11, 2018) https://www.ohchr.org/Documents/Issues/Racism/SR/Communications/OL-IND-13-2018.pdf 305 Id. 306 United Nations Office of High Commissioner Right to a Nationality and Statelessness, (Last accessed nd 22 May 2019 ), https://www.ohchr.org/EN/Issues/Pages/Nationality.aspx 307 Rajeev Bhattacharyya , In PIL Against Citizenship Bill, Assamese Intellectuals Say It Violates Constitution THE WIRE (Feb, 5, 2019) https://thewire.in/law/in-pil-against-citizenship-bill-assamese- th intellectuals-say-it-violates-constitution (Last accessed 6 March, 2019) 308 Id. 309 Id 86 has the authority to amend rules, the substantive law is supposed to precede it and not the 310 other way around.
4.5 CONCLUDING REMARKS
The Citizenship Bill 2019 has received widespread criticism. It has been followed by wisespread protest from North-Eastern part of India. Somewhat dilution of the original Assamese concern is not something that has been met well by Assam or the entire North- East efforts are constant in preservation of cultural identity in face of immigration from Bangladesh. Trying to provide citizenship on the basis of religion hence has been seen as a dilution of the concerns of the people in North East.
Although the government has justified the grounds of the Bill, it stands on dubious grounds when its provisions are analysed in light of the Constitution. From a human rights perspective it raises serious concern as well when its implications on the NRC process are evaluated. In practical terms, it facilitates identification of Muslim immigrants as the Non-Muslim population is more likely to apply for the citizenship process. Thus when analysed, neither is the Bill in consonance with the basic structure of the Indian Constitution nor is it in consonance with the principles of human rights that India is obligated to protect under its international commitments.
310 Supra n. 276 , p. 108
87
CHAPTER 5
CONCLUSION
At the end of these discussions, it is pertinent to examine the hypothesis formulated. It was hypothesized that religion has been a determinant factor in the legal citizenship discourse in India. In the first chapter it has been argued that religion as a factor was considered during formulation of the legal framework in India. Since the colonial rule, religion has been embedded as a factor which had led to communal fragmentations. Through the second chapter, the statutory development of the citizenship discourse has been mapped, with a special focus of its transformation for jus soli to jus sanguinis conceptions of citizenship. The focal point, it was seen, that triggered that amendments that were to come, was an incidence of violence, namely the Neliie Massacre which reshaped the contours of the discourse. After, the amendments, it has been shown that the scope of jus sanguinis was expanded so as to wane the scope of jus soli as the fear of a ‗Bangladeshi invasion‘ seeped into the judicial and legislative discourse of India. The expansion of its scope also enabled the legislature judge and jury on matters of th legal status of citizenship. Needless to say, these Bangladeshi infiltrators were identified as Muslims which furthered the duality of the communal identity creation.
This identity creation is important attribute in the Indian citizenship discourse. Its facet of duality in terms of Hindu-Muslim was not only seen to suppress other identities in Assam, it also led to the notion of India being a home for Hindus, Sikhs, Buddhists and Parsis, in other words basically most other religious identities apart from the Muslim. In the third chapter we see that this rhetoric found explicit legal expression in the form of the Citizenship Bill, 2019. After an analysis of the Bill it was found to be on quite shoddy grounds in terms of the Constitution of India. Coupled with similarly framed administrative orders and an even shoddier NRC process, for the first time, it pushed jus
88 sanguinis to its limit, to the extent of making religion its proxy for defining the citizenship as a legal status in India.
The trajectories of the discussions provided in each chapter therefore points towards religion as a determinant factor in Indian legal citizenship discourse. From its inclusion into the Constitutional debates, to its timely emergence in the socio-political struggles over citizenship identity, to its brazen insertion into the Citizenship Bill, 2019, it has established itself as a determinant factor in the Indian legal citizenship discourse.
At this point, some purely suggestive but useful takeaways from this entire discourse can be made. The non-discriminatory frame of the bare text embedded in the Constitution never differenciated between Hindu or Muslim or between native Assamese or illegal migrants. The Constitution, concerned only with the modalities of people migrating at the time of its making, left the task of framing citizenship laws to the future Parliament. Due to demands for peace maintain a status quo overt categorization of Hindus and Muslims were not reinforced.. Although these communal themes are present in the Constituent Assembly Debates, although they are underlying the protests for preserving the ethnic identity in Assam, overtly they are not present. Overtly, Indian citizenship as envisaged in the Constitution welcomes all. However when it translates into legislation, it seemed to welcome Hindus to a little more with the passage of time.
India, through the experiences of Assam, has shown that it is a pluralistic democracy. As reiterated time and again in this work, it is an amalgamation of identities. Hence the recent Citizenship law which encompasses only two of these identities is highly detrimental. Citizenship, at its birth was agnostic in nature in India. It was slowly transformed from a jus soli to a jus sanguinis regime through the decades which not only defined identity but also affected human rights. Thus a takeaway from this discourse it may be to gauge human rights implication of such definitions . With each change in citizenship discourse there was a change in identity creation and a fallout in the violation of human rights of citizens and non-citizens alike through the widespread violence and massacre, be it the Partition, be it the Nelli massacre or be it the recent protests against the Citizenship Bill coupled with the ongoing NRC debacle. In such perspective,
89 therefore it may be lucrative to pause and reframe legal conceptions of citizenship in such a manner so as to adopt an accommodative approach towards all identities for framing a more differentiated and humane perspective of citizenship as a legal status.
90 BIBLIOGRAPHY
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STATUTES
Abducted Persons (Recovery and Restoration) Act, 1949
Armed Forces Special Powers Act, 1958
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Citizenship Rules 1956
Constitution of India 1950
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6. Railway Board & Ors vs Mrs. Chandrima Das & Ors. AIR 2000 SC 988
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