Trial By Paper

The roots of the current crisis in citizenship jurisprudence go back to the Citizenship (Amendment) Act 2003, which made more stringent the possibilities of acquiring Indian citizenship by birth, descent, registration and naturalisation.

George Bernard Shaw had Bluntschli say in Arms and the Man (1898): “My rank is the highest known in Switzerland: I’m a free citizen.”

It is slightly over a 100 years since all of India rose in answer to Gandhi’s call against the colonial Rowlatt legislation. Arrests, firings (as in Jallianwala Bagh, Amritsar), air-bombings (as in Gujranwala) and martial law (in the Punjab area) followed. The participation of all communities in these events hardened the people’s commitment to a composite nationhood and signalled also the beginning of the end of the British Empire. Notwithstanding the partition of India in 1947, the commitment to a composite Indian nationality and citizenship was reflected in independent India’s Consti-tution.

Citizenship in India is determined primarily by the Constitution, which commenced in 1950, and the Citizenship Act of 1955. The Act has been amended from time to time; but the Citizenship (Amendment) Act 2019, which came into force in January 2020, introduces religious discrimination into the law. It takes a turn inconsistent with modern India’s historical and constitutional definition of itself.

Article 6 of the Constitution of India had referred to those who had migrated from Pakistan. It set out the conditions under which such persons would be treated as Indian citizens and/or registered as such. Persons of diverse religions came to India and were treated as Indian citizens and/or registered as such. This was taken for granted, and even provided for in diverse rules for certain specified periods.

Under Article 11 of the Constitution of India the manner of acquisition of citizenship after its commencement was left to be dealt with by parliamentary legislation and this is how the Citizenship law of 1955 came to be enacted. The Citizenship Act of 1955 included, among other things, provisions for Acquisition of Citizenship by (i) birth (ii) descent (iii) registration (iv) naturalisation and (v) incorporation of territory. Apart from this, it had certain supplemental provisions. For example, a special power was given to the Central Government under S.13 of the Act to issue, in certain circumstances, a certificate of citizenship in cases of doubt. This power still exists and we will refer to it presently.

Meanwhile, a second post-partition influx of displaced persons (‘DPs’ as they were then known), had resumed in the mid-1960s, this time mainly from erstwhile East Pakistan (now Bangladesh). The Nehru and Shastri Govern-ments sought to ensure that the refugee burden was shared by the country at large. The problem was intensified with the Bangladesh War of 1971. In subsequent years a feeling grew that a disproportionate share of the burden of the East Bengal influx had came to be placed on Assam, leading to an agitation there from 1978. The Citizenship Act underwent a further amendment in 1985 to implement the Assam Accord. Under the accord, citizenship was recognised for those who came to Assam before January 1966 and also broadly for those who came after the beginning of January 1966 but before March 25, 1971. [The 2019 amendment now destroys also the basis of the Assam Accord of 1985 by taking forward the cut-off date by more than 43 years from 1971 to 2014.] An important amendment to the citizenship law was made in 1986 and enforced from July 1, 1987. This restricted the provision for citizenship by birth to cases where at least one parent of a child born in India after July 1, 1987 was a citizen of India. The 1986 amendment restricted also the acquisition of citizenship by registration and naturalisation, increasing various time periods specified under the law for this purpose. It should be noted that religion was not a legal consideration in any of these amendments.

The roots of the current crisis in citizenship jurisprudence go back substantially to the Citizenship (Amendment) Act 2003, enacted under the first NDA regime. The 2003 amendment, which came into effect on January 7, 2004, made more stringent the possibilities of acquiring Indian citizenship by birth, by descent, by registration and by naturalisation; and it did so in a manner that in one respect actually sowed the seeds of the current crisis. One of the stated objects of this amendment was to “prevent illegal migrants from becoming eligible for Indian citizenship”, the expression “illegal migrant” being defined as a person who enters India without a valid passport or travel documents (or such other authority as may be prescribed) and even a person who overstays. To this end Sections 5 and 6 of the Citizenship Act were amended in 2003 to take away the power of the authorities to confer citizenship by registration or naturalisation upon anyone who was an “illegal migrant”, the definition itself hinging on documentation. This exclusion aggravated the plight of many of the refugees, including those from Afghanistan and Sind in Pakistan, whom the current NDA Government now invokes in justification of the 2019 amendment citing precisely the lack of adequate documentation.Thus the difficulty faced by certain categories of migrants, which the current NDA Government claims now to remedy by resorting to religious discrimination, was in fact created by the first NDA regime in 2003-4.

The 2003-4 amendment went so far as to also amend Section 3 of the Act so as to deny citizenship by birth even to a child if one of its parents was an ‘illegal migrant’. It did away also with the power of the Central Government under Section 12 to confer citizenship on a reciprocal basis to citizens of any country specified in the First Schedule. In fact Sections 11 and 12, along with the First Schedule were themselves omitted by this amendment.

Thus, legal roadblocks were installed without realising that some provisions of the unamended law actually provided secular methods for resolving on their merits the issues that were being raised and which would actually get blighted by the 2003-4 amendment itself. Moreover, with such absolute roadblocks in place, the mindset of political, bureaucratic and judicial authorities was mechanically focused on the either/or of Documentation versus Detention with the Spectre of Deportation. Little thought was given also to finding solutions by, for instance, reassuring individuals, formulating a refugee policy and allowing for work permits as is done both tacitly and by interpretation of treaty provisions in the case of persons from Nepal. The National Register of Indian Citizens was also introduced by the 2003-4 amendment.

The 2019 amendment introduces religious discrimination into the citizenship law by, inter alia, the insertion of a proviso in Section 2 to the effect that persons who belong to Hindu, Sikh, Buddhist, Jain, Parsi or Christian communities from Afghanistan, Bangladesh or Pakistan who entered India before December 31, 2014 would not be considered to be “illegal migrants”. In other words, only the residual category, primarily of Muslims, would be considered illegal migrants. A justification for this religious discrimination is sought to be provided in Paragraph 2 of the Statement of Objects and Reasons of the Bill and it is to the effect that the communities concerned face religious persecution in the 3 countries mentioned.

This discrimination based on religion is a new element in India’s Citizenship law. Something that did not happen even in the wake of the bitterness caused by Partition of India in 1947 is sought to be introduced now. It is contrary to the fundamental principles of the Constitution of India and also to the ethos of India’s struggle for freedom. Apart from this, it should be obvious that religious persecution is not the only kind of persecution that may motivate a person to migrate. There may be political persecution. Or there may be no persecution at all but simply a desire to spend one’s last days in the land where one was born or with close relatives who may be in a position to provide care.

Developments in Assam, where the Register of Citizens exercise involved some unpalatable results for the current government, have provided the proximate reason for the present initiative by the Central Government although much is made in the Statement of Objects and Reasons of migrants also from Afghanistan and Pakistan. The Assam cases, however, could have been dealt with on merits even under Section 13 of the unamended Act which empowers the Central Government to issue certificates of citizenship in case of doubt. The problem with respect to migrants from Pakistan has also been created in the immediate instance by the Amendments carried out by the NDA Government in 2003-4 that closed the door to those without documents by amendments to Sections 5 and 6, which had earlier provided routes to such persons for citizenship by registration or naturalisation. Instead of handling the issue in an even-handed manner under various provisions of a pre-existing secular legal regime, the current Government has now resorted to religious discrimination.

In paragraph 7 of the Statement of Objects and Reasons of the Bill leading to the 2019 Act, the government itself admits that it was possible even under the unamended law to grant citizenship to the persons concerned under Section 6. Thus instead of resorting to religious discrimination, the proper course would still be to reverse the 2003-4 amendment of Section 6 and to open the route for citizenship by naturalisation for persons who qualify for it on merits.

If the only other remaining issue was the length of the naturalisation process under Section 6 of the unamended Act (as claimed in paragraph 7 of the Bill’s Statement of Objects and Reasons) all that was required, apart from restoration of the 2003-4 position, was to shorten the naturalisation process for all persons, not merely in respect of persons from preferred religions.

Moreover, most immigrants from Pakistan’s Sind and from Afghanistan have already stayed long enough (more than 12 years) for the duration of the naturalisation process even under the unamended law to not be a hurdle for them. Clearly, the arguments being offered in support of the religious discrimination made in the 2019 Amendment are not tenable and will confound the issue further, besides giving it a communal-sectarian character.

The motivation for the latest amendment is not the migrants from Pakistan or Afghanistan but the many persons from the majority community failed to get on to the Register of Citizens (NRC) in Assam. These largely constitute the ruling party’s political constituency in the state. Moreover, as many of the persons affected are Bengalis, the BJP has its eye also on the next elections in Bengal. True to form, for partisan gains the current dispensation is willing to tear the country’s social and legal fabric apart. Rather than respect Bluntschli’s maxim, it prefers to explore the possibilities anticipated in the irony of Brecht’s poem TheSolution : “...Would it not in that case be simpler / for the government /To dissolve the people / And elect another?”.

[A shorter version of this article appeared in The Indian Express, January 26, 2020]

Anil Nauriya has been a counsel at the Supreme Court and Delhi High Court since the 1980s and has widely written on both history and politics in India.