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) <http://www.civiced.org/pdfs/delaPazGabriel.pdf> 3 ibid 4 ibid 5 TNN, Why Assam and Other NE States are opposing the Citizenship Bill, TIMES OF INDIA, Jan 19, 2019 < https://timesofindia.indiatimes.com/india/learning-with-the-times-why-assam-and -other-ne-states- are-opposing-citizenship-bill/articleshow/67445963.cms Last accessed (April 12, 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.