- While ‘jus soli’ confers citizenship on the basis of place of birth, ‘jus sanguinis’ gives recognition to blood ties.
- From the time of the Motilal Nehru Committee (1928), the Indian leadership was in favour of the enlightened concept of jus soli.
- The racial idea of jus sanguinis was also rejected by the Constituent Assembly as it was against the Indian ethos.
Constitutional Provisions
- Citizenship is listed in the Union List under the Constitution and thus is under the exclusive jurisdiction of Parliament.
- The Constitution does not define the term ‘citizen’ but details of various categories of persons who are entitled to citizenship are given in Part 2 (Articles 5 to 11).
- Unlike other provisions of the Constitution, which came into being on January 26, 1950, these articles were enforced on November 26, 1949 itself, when the Constitution was adopted.
- Article 5: It provided for citizenship on commencement of the Constitution.
- All those domiciled and born in India were given citizenship.
- Even those who were domiciled but not born in India, but either of whose parents was born in India, were considered citizens.
- Anyone who had been an ordinary resident for more than five years, too, was entitled to apply for citizenship.
- Since Independence was preceded by Partition and migration, Article 6 laid down that anyone who migrated to India before July 19, 1949, would automatically become an Indian citizen if either of his parents or grandparents was born in India.
- But those who entered India after this date needed to register themselves.
- Those who had migrated to Pakistan after March 1, 1947 but subsequently returned on resettlement permits were included within the citizenship net.
- The law was more sympathetic to those who migrated from Pakistan and called them refugees than to those who, in a state of confusion, were stranded in Pakistan or went there but decided to return soon.
- Any Person of Indian Origin residing outside India who, or either of whose parents or grandparents, was born in India could register himself or herself as an Indian citizen with Indian Diplomatic Mission.
Acts and Amendments
- The Citizenship Act, 1955 provides for the acquisition and determination of Indian citizenship.
Acquisition and Determination of Indian Citizenship
- There are four ways in which Indian citizenship can be acquired: birth, descent, registration and naturalisation. The provisions are listed under the Citizenship Act, 1955.
- By Birth:
- Every person born in India on or after 26.01.1950 but before 01.07.1987 is an Indian citizen irrespective of the nationality of his/her parents.
- Every person born in India between 01.07.1987 and 02.12.2004 is a citizen of India given either of his/her parents is a citizen of the country at the time of his/her birth.
- Every person born in India on or after 3.12.2004 is a citizen of the country given both his/her parents are Indians or at least one parent is a citizen and the other is not an illegal migrant at the time of birth.
- A person of Indian origin who has been a resident of India for 7 years before applying for registration.
- A person of Indian origin who is a resident of any country outside undivided India.
- A person who is married to an Indian citizen and is ordinarily resident for 7 years before applying for registration.
- Minor children of persons who are citizens of India.
- A person born outside India on or after January 26, 1950 is a citizen of India by descent if his/her father was a citizen of India by birth.
- A person born outside India on or after December 10, 1992, but before December 3, 2004 if either of his/her parent was a citizen of India by birth.
- If a person born outside India or or after December 3, 2004 has to acquire citizenship, his/her parents have to declare that the minor does not hold a passport of another country and his/her birth is registered at an Indian consulate within one year of birth.
- A person can acquire citizenship by naturalisation if he/she is ordinarily resident of India for 12 years (throughout 12 months preceding the date of application and 11 years in the aggregate) and fulfils all qualifications in the third schedule of the Citizenship Act.
- The act has been amended four times — in 1986, 2003, 2005, and 2015.
- Through these amendments Parliament has narrowed down the wider and universal principles of citizenship based on the fact of birth.
- Moreover, the Foreigners Act places a heavy burden on the individual to prove that he/she is not a foreigner.
- 1986 amendment: Unlike the constitutional provision and the original Citizenship Act that gave citizenship on the principle of jus soli to everyone born in India, the 1986 amendment to Section 3 was less inclusive.
- The amendment has added the condition that those who were born in India on or after January 26, 1950 but before July 1, 1987, shall be Indian citizen.
- Those born after July 1, 1987 and before December 4, 2003, in addition to one’s own birth in India, can get citizenship only if either of his parents was an Indian citizen at the time of birth.
- Now the law requires that for those born on or after December 4, 2004, in addition to the fact of their own birth, both parents should be Indian citizens or one parent must be Indian citizen and other should not be an illegal migrant.
- It also reduces the requirement for citizenship from 11 years to just 5 years.
- Two notifications also exempted these migrants from the Passport Act and Foreigners Act.
- A large number of organisations in Assam protested against this Bill as it may grant citizenship to Bangladeshi Hindu illegal migrants.
- The justification given for the bill is that Hindus and Buddhists are minorities in Bangladesh, and fled to India to avoid religious persecution, but Muslims are a majority in Bangladesh and so the same cannot be said about them.
Different Scenario in Assam
- Assam witnessed large-scale illegal migration from erstwhile East Pakistan and, after 1971, from present-day Bangladesh.
- This led to the six-year-long Assam movement from 1979 to 1985, for deporting illegal migrants.
- The All Assam Students' Union (AASU) led the movement that demanded the updating of the NRC and the deportation of all illegal migrants who had entered Assam after 1951.
- The Assam Movement against illegal immigration eventually led to the historic Assam Accord of 1985, signed by the Movement leaders and the Rajiv Gandhi government.
- It set March 25, 1971, as the cut-off date for the deportation of illegal migrants.
- Since the cut-off date prescribed under articles 5 and 6 of the Constitution was July 19, 1949 - to give force to the new date, an amendment was made to the Citizenship Act, 1955, and a new section (6A) was introduced.
Section 6A
- The section was made applicable only to Assam.
- It laid down that all persons of Indian origin who entered Assam before January 1, 1966 and have been ordinary residents will be deemed Indian citizens.
- Those who came after 1 January, 1966 but before March 25, 1971, and have been ordinary residents, will get citizenship at the expiry of 10 years from their detection as a foreigner.
- During this interim period, they will not have the right to vote but can get an Indian passport.
- In Assam Sanmilita Mahasangha (2014) where the constitutionality of the 1986 amendment was challenged (the Mahasangha argues that the cutoff year for Assam should be 1951 instead of 1971), the court referred the matter to the Constitution Bench.
- To examine whether Section 6A is constitutional and valid though it prescribes a different cutoff date for Assam (1971) from the one prescribed in the Constitution for the rest of the country (1949).
- Identification of foreigners as needed by Section 6A was to be done under the Illegal Migrants (Determination by Tribunal) Act, (IMDT Act), 1983, which was applicable only in Assam while the Foreigners Act, 1946 was applicable in the rest of the country.
- The provisions of the IMDT Act made it difficult to deport illegal immigrants.
- On the petition of Sarbananda Sonowal (now the Chief Minister of Assam), the Act was held unconstitutional and struck down by the Supreme Court in 2005.
- This was eventually replaced with the Foreigners (Tribunals for Assam) Order, 2006, which again was struck down in 2007.
- In the IMDT case, the court considered classification based on geographical considerations to be a violation of the right to equality under Article 14.
Conclusion
- Giving concession of six years for residence based only on religion is against the tenets of secularism. This should be dropped to stand the test of ‘basic structure doctrine’.
- India, as a country which follows the ideology of ‘Vasudhaiva Kutumbakam’, should not be hasty in taking decisions that can disenfranchise her citizens – contradicting its centuries-followed values.
- The need of the hour is that the Union Government should clearly chart out the course of action regarding the fate of excluded people from final NRC of Assam and political parties should refrain from colouring the entire NRC process through electoral prospects that may snowball into communal violence.
- An overly legal approach will only produce more tension, insecurity and anxiety.
