Concept of Citizenship
According to Aristotle “The State is a compound made of citizens; and this compels us to consider who should properly be called a citizen and what a citizen really is.”[i] The question as to the nature of the citizenship is often disputed and the arduous task of defining the concept is manifested adroitly in the words of B..R. Ambedkar as follows: “I do not know how many drafts were prepared and how many were destroyed as being inadequate to cover all the cases which it was thought necessary and desirable to cover.”[ii]
Nationality is concerned with rights of a person in context of international law whereas citizenship is scrupulously associated with rights under municipal jurisdiction. Thus, the right of citizenship is sine qua non to enjoying the far-reaching benefits of belonging to a political community as it endows the right to vote and right to run for office in national elections, which is extremely portentous and pivotal in a democratic society. It is the legal right that bestows membership of a national political community upon an individual.
Nationality is granted upon the application of two preeminent axioms: jus soli (determining citizenship on the substructure of birth within the state) and jus sanguinis (determining citizenship through descent). In India, there is a significant shift in policy of granting citizenship from jus soli to jus sanguinis. This is reflected most incontrovertibly in the Citizenship (Amendment) Bill, 2019. The Bill purports to introduce preferential treatment vis-a-vis process of naturalisation on the touchstone of religion.
Current Legal Provisions of Citizenship
The law of citizenship is not ordinarily contained in the Constitution. However, due to the mammoth movement of people across the borders on account of partition of India and Pakistan, the source and basis of citizenship was enshrined in the grundnorm. Part II of the Constitution of India, 1950 dealt solely with the purpose of deciding the citizenship of persons moving across the borders. Subsequently, the Parliament of India passed the Citizenship Act in 1955 to govern the citizenship in India. The Act provides five modes[iii] of acquisition of citizenship of India namely:
Birth;
Descent;
Registration;
Naturalisation;
Incorporation of territory
What the Bill Seeks to Change
An ‘illegal immigrant’[iv] is a person who either enters the territory of India without a valid passport or necessary documents or who stays in the country beyond the authorized period. The illegal immigrants are not eligible for citizenship as per the Citizenship Act, 1955.[v]
The Citizenship (Amendment) Bill, 2019 proposes to exclude persons belonging to Hindus, Sikhs, Buddhists, Jains, Parsis or Christians from Pakistan, Afghanistan and Bangladesh from the definition of ‘illegal immigrant”. This will enable them to apply for citizenship in India. The Bill also requires only six years of ordinary residence instead of eleven years for the purpose of acquisition of citizenship by naturalization.
Religion vis-à-vis Citizenship in India
The basic conception of citizenship has to be understood in the light of the cardinal principle of religion being a determinant of citizenship in India. It is pertinent to note that it is not a primeval instance wherein religion has become the basis for consideration for the conferral of citizenship. In India however, unlike the proposed amendment, the manifestation has never been so undraped and naked.
Constitutional Provisions
Religion is referred, albeit in a cloaked manner, in Article 6 and 7 of the Constitution[vi]. Therein, individuals under the latter, unlike the former, had to undergo an irksome and tedious process of registration before being awarded citizenship. Article 7 dealt with individuals who migrated to Pakistan post partition but returned to India later. Thus, this repulsive provision was primarily aimed towards Muslims who left India during turbulent times. Undoubtedly, there was a glaring impedance to grant citizenship to such individuals. Thus, though religion was deeply entrenched in the framing of the law itself, it was not evident in the text.
Assam Accord 1985
The second attempt to cloak and blend religion in the realm of citizenship was the Assam Accord of 1985[vii] which was aimed at detecting and expelling the primarily Muslim illegal immigrants in Assam which had resulted in dwindling Hindu population and alteration in demography of the state of Assam. The Assam Accord fixed the cut-off date at 25 March 1971 thereby, rendering persons (latently Muslims) incapable of obtaining Indian citizenship even after residing in India for fifteen years on account of being declared “illegal immigrants.”
Amendments to the Act
The 1986 and 2003 Amendments to the Citizenship Act of 1955 are further indicative of the tectonic shift from the principle of jus soli to jus sanguinis. The aforesaid amendments have mandated that in order to attain citizenship by birth, one or both the parents must be citizens of India and neither should be an illegal immigrant, at the time of birth.[viii] Thus, mere birth within the territory of India is not sufficient to get citizenship; one needs to also establish a connection by descent. Religion as an explicit ground for granting citizenship was added by virtue of the 2004 Amendment to Citizenship Rules, which specifically referred to Hindus with Pakistani citizenship.[ix]
Thus, the Citizenship Act contained both “jus soli” and “jus sanguinis” axioms within its sphere. However, the periodic amendments to the citizenship law do reflect a trend towards a more exclusionary jus sanguinis notion. Thus, the religious notions were always present albeit they were latent.
2019 Amendment Bill vis-à-vis Constitutional Ethos
The 2019 Amendment relaxes the citizenship law requirements vis-à-vis Hindus, Sikhs, Buddhists, Jains, Parsis and Christians who have migrated from Afghanistan, Bangladesh or Pakistan thereby, specifically excluding Jews and Muslims from its ambit. This introduces religion as the archetype for distinguishing a citizen from a non-citizen. Thus, the primordial question is:
Whether there is alleged inconsistency of the 2019 Amendment Bill with the Indian Constitutional Ethos?
Article 14 ensures that no special provision in favour of any one is made and that all are equally subject to the ordinary law of the land. It encompasses both negative and positive concepts of equality. The positive concept of equality stresses on equality of treatment in equal circumstances or to similarly situated persons but not in all circumstances.
Judicial Precedence
In State of West Bengal v. Anwar Ali Sarkar (AIR 1952 SC 75), the Supreme Court held that differential treatment can be meted to different set of persons provided the differentiation is based upon an intelligible differentia and there is a rational nexus between the classification and the object sought to be achieved by means of such classification. In Parents’ Assn. v. Union of India, [(2000) 2 S.C.C 657], the Supreme Court upheld differential treatment of the pre-1942 settlers and the post-1942 settlers in Andaman & Nicobar Islands by the Central Government on consideration of the historical background of the Island. Further, the importance of judicial review was elucidated in Parisons Agrotech (P) Ltd. v. Union of India, [(2015) 9 S.C.C. 157], wherein the Court held that if a policy decision was based on sufficient material, the Court does not have power to examine its correctness.
It is submitted that the Bill provides for easier naturalisation for migrants belonging to particular religions, to the exclusion of a few other equally placed religious groups. A preference is thus clearly granted in favour of the six identified religious communities, meting out differential treatment based on religious belief. Preferential treatment can be accorded to naturalisation by nationality, to the extent it is on the basis of ‘closer affinity‘ with the conferring state’s value system,[x] or on account of closer historical, cultural and spiritual bonds with the people of the concerned state. However, on account of India’s syncretic past and large Muslim population, no particular claim of any ‘closer affinity’ or ties can be reasonably envisaged. Thus, preferential treatment is not based upon objective parameters and is discriminatory in character.
International Refugee Law
Further, it is submitted that migration is associated with volitional transit of persons whereas refuge is forced and uncontrolled transit of persons. Thus, the Bill suffers from the defect of defining refugees as migrants as the objective of the Bill is to grant citizenship to the religious minorities and to enable them to enjoy their basic rights.
In light of the aforesaid proposition, it is submitted that the Bill falls short vis-à-vis international refugee law. Selective grant of refugee is abhorrent to the customary norms of international law. It is also submitted that the proposed Bill violates a fundamental credo of the domestic refuge policy. Instead of operating on the presumption that the refugees have to return to their own state upon restoration of normality, it tampers with the domestic law to provide citizenship to them on a platter.
Conclusion
Thus, it is an implicit move towards a “Hindu homeland” which can be compared to Israel’s Law of Return[xi], which provides for a safe haven for all Jews, meting out favorable treatment based on religion. The Bill is the culmination of India’s steady shift to citizenship based on the jus sanguine postulate. Such a move has direct prejudicial manifestations, which violates the concept of equality and secularism imbibed in our constitutional ethos.
[i] Report of the Joint Committee on Citizenship (Amendment) Bill, 2016, Lok Sabha Secretariat, January 2019 available at <http://164.100.47.194/Loksabha/Committee/CommitteeInformation.aspx?comm_code=71&tab=1>
[ii] B.R.Ambedkar, Constituent Assembly Debates, Vol IX, 10 August, 1949 available at <https://cadindia.clpr.org.in/constitution_assembly_debates/volume/9/1949-08-10>
[iii] Citizenship Act 1955, Ss.3-7.
[iv] Id. at S. 2(i)(b).
[v] Id., at S. 3(c)(ii), 5(i) and 6(i).
[vi] The Constitution of India, As. 6 and 7.
[vii] Id. at S. 6A.
[viii] Id. at S.3.
[ix] Citizenship Rules, 2004, S. 3(2)(ii).
[x] S. Hall, The European Convention on Nationality and the Right to have Rights, (1999) 24 European L.R. 586.
[xi] Israel’s The Law of Return, 5710-1950, available at <http://www.jewishagency.org/first-steps/program/5131>
By Prateek Virk, 4th year student, Rajiv Gandhi National University of Law, Punjab