The 2003 Amendment to the Citizenship Act enacted under the Jameen Samthal Atal Bihari Vajpayee regime for the first time defines an “illegal migrant” as a “foreigner who has entered into India without a valid passport or other travel documents”. Given the history of a massive influx of refugees from East Bengal during and after Partition and during the Bangladesh liberation war, such a defective definition of “illegal migrant” amounts to a cruel criminalisation of millions of post-Partition refugees.
Over 5.21 million persons had registered themselves in Indian check posts as “refugees” by 1970 (Union Rehabilitation Ministry data quoted in The Agony of West Bengal: A Study in Union State Relations).
Another 9.89 million had crossed over in 1971, according to figures provided by the Indian government to the United Nations (The State of the World’s Refugees 2000: Fifty Years of Humanitarian Action, 2000).
While most of the 1971 refugees returned to Bangladesh after the end of the hostilities, a few thousands did not. In West Bengal, where a bulk of these post-Partition refugees sought shelter, they have not only been absorbed into the socio-economic mainstream, but have gone on to make stellar contributions to nation-building.
A sizeable proportion of the post-Partition refugees include Dalits from the Namasudra and Rajbanshi communities, among others. A large majority of the Bengali refugees are Hindus, the post-Partition refugees also include a section of Bengali Muslims, given the specific nature of the 1971 conflict in Bangladesh, which was fought over language and not religion.
Since none of these refugees had entered India with valid passports or travel documents, they have become “illegal migrants” in the eyes of the law, after the passage of the Citizenship Amendment Act, 2003. Moreover, the 2003 amendment has made it impossible for children born in refugee families to become Indian citizens by birth, if either of their parents is deemed to be an “illegal migrant”.
It was the 2003 amendment to the Citizenship Act which also introduced compulsory registration of “every citizen of India”, maintenance of a “National Register of Indian Citizens” (NRIC) and issue of “National Identity Cards” by adding Section 14A to the original Citizenship Act 1955.
The Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003 framed under this law provides for a multi-step process, whereby a National Population Register will first be created by enlisting all usual residents of India and then “Doubtful Citizens” identified through a bureaucratic process. Thus, the NRIC (or nationwide NRC) is to be created by eliminating “Doubtful Citizens” from the NPR.
While the NPR exercise was notified and carried out in 2010-11 under the United Progressive Alliance government, the subsequent processes of determination and elimination of “Doubtful Citizens” was, understandably, not undertaken and therefore the NRIC not created. Neither the Citizenship Amendment Act, 2003 nor the Citizenship Rules, 2003 provide any transparent and rational basis of determining “Doubtful Citizens”. Given such anomalies and the defective definition of “illegal migrants” in the law, which does not demarcate refugees from infiltrators, any attempt to create a NRIC through this arbitrary bureaucratic process will inevitably lead to chaos and the eventual exclusion of millions from Indian citizenship, rendering them stateless.
The Modi government is now hell bent on conducting this exercise across the country. It is noteworthy that unlike in Assam where a cut-off date of March 24, 1971 was decided on the basis of the Assam Accord, no such cut-off date exists for the nationwide NRIC.
However, the Citizenship Amendment Act of 2019 itself fails the constitutionality test, since it discriminates on the basis of religion — making Hindu, Sikh, Christian, Buddhist, Jain and Parsi migrants from Bangladesh, Afghanistan and Pakistan eligible for Indian citizenship, but not Muslims. This militates against Articles 14 and 25 of the Indian Constitution.
Moreover, as the Intelligence Bureau and the Union Home Ministry officials have made it clear through their depositions before the Joint Parliamentary Committee on the Citizenship Amendment Bill 2016, such a legislation will benefit only 31,313 migrants who have already been issued long-term visas by the Indian government on the grounds of religious persecution in the specified neighbouring countries (Report of the Joint Committee on the Citizenship (Amendment) Bill, 2016, p.39).
Thus, the claim that the Hindus among the NRC-excluded in Assam would get citizenship through the Citizenship Amendment Act, 2019 is patently false. The millions of post-Partition refugees, mostly Bengali Hindus from Bangladesh, who carry no documentary evidence of religious persecution in East Bengal, cannot get Indian citizenship through this channel. Further, the Gorkhas, Biharis and Scheduled Tribes among the NRC-excluded cannot, and possibly will not, claim that they have migrated from Bangladesh, Afghanistan or Pakistan. The Citizenship Amendment Act, 2019 is, not only a non-solution but also a harmful gimmick which will damage the secular (read equality – social and religious) principle enshrined in the Constitution, as we all can see.
Prasenjit Bose, “Restoring a secular notion of citizenship.” Dec 06/2019
Prof. Anupama Roy in 2003 wrote “The provision for overseas citizenship along with other changes in citizenship rules introduced by the Indian government reveals a trend that reinforces cultural identity and principle of descent and blood ties as constitutive of Indian citizenship. While the provision for overseas Indian citizenship may offer an "opening up" of Indian citizenship through the introduction of extra-territoriality, it occludes (block) a simultaneous "closing of ranks", with acquisition of citizenship through birth or by registration and naturalisation becoming more stringent.” wrt CAA 2003. “EPW: Overseas Indian Citizen: A New 'Setubandhan'?”
"Who is a citizen of India?" It was the Constitution (1950) that first drew the lines between citizens and non-citizens.
Let’s deal with the elephant in the room first. The question – “Can people who migrated from India to Pakistan during partition obtain Indian Citizenship, does the “ORIGINAL” Indian constitution opens a door?” The simple answer is Yes, if we made a law.
“As far as migration from Pakistan into India was concerned, the Constitution (Article 7) established that a person having gone to Pakistan after March 1, 1947, shall not be "deemed to be citizen of India unless after having migrated to Pakistan the person returned to India on a permit for resettlement.. While there is no reference to Article 7, Supreme Court judgments in the early 1960s, decided that a person who migrated to Pakistan after March 1, 1947 and acquired Pakistani nationality, could not claim the citizenship of India. Thus Indian citizenship as manifest in the Constitution at its commencement thus, emphasises ethnic ties, yet it is also associational in nature, disregarding territorially bound determination of citizenship.”
Now, Subsequent amendments in the Citizenship Act in 1986 sought to deal with migration from Bangladesh, Sri Lanka and some African countries; amendments in 1992 show a strengthening of strands that emphasise descent or being born of Indian parents.
While the Citizenship Act of 1955 held that every person born in India on or after January 26, 1950, was to be a citizen of India by Birth.
From July 1, 1987, i e, the date of enforcement of the amendment of CAA 1986, every person born in India on or after January 26, 1950 but before or after the commencement of the 1986 Act, would be a citizen of India, if either of whose parents was a citizen in India at the time of his birth.
The 1992 Citizenship Amendment Act in turn made it possible, through an amendment of Section 4 (citizenship by descent) for a person born outside India, whose father was an Indian citizen by descent only. If his birth was registered at an Indian consulate within one year of its occurrence or the commencement of the Citizenship Amendment Act, 1992. Whichever was later.
“This emphasis on ethnic bonds and Indian origin manifested a move from a relatively inclusive approach to citizenship seen at the time of the commencement of the Constitution, towards an overtly ethnic conception of citizenship where descent from parentage of Indian origin became an overriding consideration.” Valerian Rodrigues 2005
The late 1990s saw further entrenchment of a notion of citizenship marked by blood ties and cultural ascriptions. Read in the context of the majoritarian politics of the period, citizenship became more Exclusive, so that while the universe of the Indian citizenship was conceived as all-encompassing - the entire earth construed as a familial community of membership - the Indian citizen was progressively marked as Hindu, upper caste and male. One of the most conspicuous manifestations of this was the debate over Sonia Gandhi's citizenship, whose legal resolution was deemed insufficient as her foreign origins continued to be put forth as proof of her indifferent and inadequate citizenship and also indicative of her unsuitability for holding a political office as the head of government.
The category of the "overseas citizen" of India can perhaps be understood within the framework of this trend that congealed the association between ethnic Indian-ness and Indian citizenship.
Yet, there also seem to be present several competing and almost dissonant strands, in the framing of overseas Indian citizenship. Ironically while a dominant suggestion seems to be that of the recovery of “de-territorialised” (line of fight – separation of culture) citizenship which accompanied the commencement of the Constitution, the proposed de-territorialisation is both ironic and deceptive. While lifting the denial of Indian citizenship which the assumption of citizenship of a foreign country brought in its wake, this continued to be denied to those persons of Indian origin who had made the choice of opting out of Indian citizenship in preference for Pakistani citizenship.
At the same time, it manifested also a trend followed by several international governments especially those which had integrated in some significant way in an '"hierarchical" world economy, and assumed the position of "fast developing economies", to reach out to their Diaspora in various ways, not the least, offering them avenues of investment in their countries of origin.
The report of the high level/ powered committee on the Indian Diaspora, headed by L M Singhvi, set up in August 2000 to suggest a framework facilitating interaction with the Indian Diaspora and their association with India in a mutually beneficial relationship, incorporated all these strands.
Emphasising the de-territorialisation which the Indian Diaspora had come to signify, in an inversion of the logic of imperialism, the committee declared: "the Indian Diaspora spans the globe and stretches across all the continents. It is so widespread that the sun never sets on it" (Singhvi Committee Report 2002, p2)
While emphasising the Diaspora numbers ("estimated to be about 20 million") and their distribution across the globe, the Singhvi report carefully underscored their common identity: "...They live in different countries, speak different languages and are engaged in different pursuits. What gives them their common identity is their Indian origin, their cultural heritage, their deep attachment to India".
It is significant that the Singhvi Committee report keeps projecting overseas citizenship as a "'new setubandhan", or building bridges, and given the contexts of the emotional bonds and cultural back- linkages that the report emphasises, this would connote cementing a natural bond. It emphasises "emotional needs" of the Diaspora, as the primary justification for dual citizenship. Under the head "culture", the report also notes the "deep commitment to their cultural identity (that) has manifested in the component of the Indian Diaspora, the members of the Diaspora identify with Indians, equally the inheritors of the traditions of the continuous civilisation".
Though the Singhvi report pays tribute to the expanse and cultural cohesion of the Diaspora, it perhaps seems ironic that it chooses to limit the universe of overseas Indian citizens to specific countries of North America and the Europe, and Australasia (Australia, New Zealand, Singapore and Thailand), compelling the observation by Fatima Meer, a member of the African National Congress, that the overseas citizenship of India as articulated by the Singhvi Committee was nothing more than "dollar and pound citizenship".
That the monetary considerations were never absent, even though care was taken not to make them appear primary was the fact that among the suggestions put forward by the Singhvi Committee was the setting up special economic zones, exclusively for projects to be undertaken by OCIs, PIOs and NRIs.
The debate on the Citizenship Amendment Bill 2003 under the NDA government saw a reiteration of this emotional link and desire for closer ties. L K Advani, then home affairs minister, justified it not only on the grounds of the warm ties the Diaspora "continue to have with India and Indian culture", but as a measure to bring the "Diaspora closer to themselves and to India".
The speech Of Dr. Manmohan Singh, then leader of the opposition in the Rajya Sabha, likewise alluded to emotional ties while also referring to them as "a great national reservoir", whose "knowledge, wealth, experience and expertise" could "be tapped for the benefit of our country".
The Singhvi Committee recommended that dual citizenship should be permitted within the rubric of the Citizenship Act 1955, suggesting also that sections 9, 10 and 12 of the Citizenship Act 1955 should be suitably amended.
A bill to amend the existing Citizenship Act was introduced in the Rajya Sabha on May 9, 2003 and subsequently referred to the standing committee chaired by Pranab Mukherjee for examination and report.
The standing committee report (December 12, 2003) endorsed the amendment of 1955, to make provisions for the grant of overseas citizenship of India. Significantly it also recommended the introduction of a scheme for compulsory registration of every citizen of India accompanied by the issue of national identity cards.
To achieve these objectives the proposed amendment sought to provide for:
- Making acquisition of Indian citizenship by registration and naturalisation more stringent.
- Preventing “illegal migrants” from becoming eligible for Indian citizenship. ( loved the posters that said nobody is illegal, everybody is human)
- Simplifying the procedure to facilitate the reacquisition of Indian citizenship by persons of full age who are children of Indian citizens and former citizens of independent India.
- Providing for the grant of overseas citizenship of India to persons of Indian origin belonging to specified countries and Indian citizens who choose to acquire the citizenship of any of these countries at a later date.
- Providing for compulsory registration and issue of national identity card to all citizens of India.
- Enhancing the penalty for violation of its provisions as well as rules framed under it.
- Omitting all provisions recognizing or relating to the commonwealth citizenship from the act.
On June 6, 2003, the standing committee issued an advertisement in the press inviting public responses. The representations and memoranda received by it can be divided into those pertaining to overseas Indians, those concerning persons with ambivalent or "illegal" membership within the territory of India and those confined to making citizenship more identifiable and precise in the form of legal documents.
The memoranda received in the first category ranged from suggestions that endorsed a selective basis of dual citizenship to those that preferred that it should be expanded to include China, Sri Lanka, Fiji, Kenya, Malaysia, Uganda, South Africa, West Indies and Zimbabwe.
The demands which reflected concerns around ambivalent citizens asked for a more flexible regime of naturalisation and registration and shifts in policy to include Bangladeshi and Pakistani minority refugees, displaced persons and migrants who entered India in wake of the 1971 war and Tibetan refugees.
The other demands included consideration of giving every citizen a national identity card and identification of religion on citizenship certificates (report of the standing committee, p6)
The Citizenship Amendment Act 2003 made several amendments to existing sections and inserted sections 7A, 7B, 7C and 7D titled "overseas citizens" that dealt with the definition and registration of overseas citizens, conferred specific rights to them, identified citizen's rights that did not belong to them and the conditions under which their registration could be cancelled.
An amendment to the Citizenship Act 2003, through an ordinance issued in June 2005, allowed the overseas citizenship scheme to cover persons of Indian origin who emigrated after 1950 and were living in any country other than Bangladesh and Pakistan.
The extension of the status to other countries is significant since in 2005 overseas Indians sent remittances to India at an estimated 21.7 billion dollars, more than what China (21.3) and Mexico (18 billion) received. More than half such remittances were by west Asia based Indians, with Kerala being the single largest beneficiary.
The Citizenship Amendment Act 2003 and the Citizenship Amendment Ordinance and Act 2005 provide for a variant of Indian citizenship, which is not quite dual citizenship, since it does not provide the overseas Indian with an Indian passport, but an overseas citizen card.
Conclusions on CAA 2003;
Despite the widening of the scope of overseas citizenship, the principles underlying the scheme, read with the other changes the bill sought to introduce, show that the principle of 'jus sanguinis' or descent and blood ties was more important, and assumed primacy over the principle of 'jus soli’ (the principle that a person's nationality at birth is determined by the place of birth). ie ‘ bhakt ab kis kis ka DNA check karenge ? ‘
While Indian citizenship after the amendments bringing in the category of overseas citizenship may convey that citizenship is not to be confined to or associated with territory and membership within specific state boundaries, implying transnational or de-territorialised citizenship, the fact that it is without any reason tied up with descent emphasising Indian origin, makes its transnationality a huge suspect.
On the other hand, Indian citizenship may be seen as having become more rigid and exclusive, with naturalisation and registration processes becoming more stringent.
The Rigidity is further manifested in the fact that the amended act (CAA 2003 / 2005 Ordinance Act) places demands on children born of Indian parents abroad, who would be automatically citizens of the other country on the principle of 'jus solis' (the principle that a person's nationality at birth is determined by the place of birth), to register as OCIs immediately upon coming of age.
While the issue of choice is made abrupt for those born abroad, there is a degree of flexibility for Indian citizens "compelled" to choose the citizenship of their country of domicile and work, who would not lose their Indian citizenship (OCI status) till the time their registration formalities continue.
Moreover, deliberations in the standing committee affirming India's stand on refugees, displaced people and economic migrants, show a further entrenchment of inflexibility and the expression, "illegal migrant" figures in the Citizenship Act in both "citizenship by registration" and citizenship by "birth" categories. Significantly the insertion of this category has made citizenship by birth exclusive and conditional. Hence there is a time frame – they’ll keep amending the citizenship act every generation and probably subvert the constitution like they did in CAA 2003 Itself and no court caught this executive overreach.
While the un-amended section 3 dealing with "citizenship by birth" provided for Indian citizenship to every person born in India after January 26, 1950, if "either of whose parents are [was] a citizen of India at the time of his birth", section 3 as amended by the 2003 Act provided that citizenship by birth would accrue to persons born in India where "both of his parents are citizens of India; or one of his parents is a citizen of India and the other is not an illegal migrant at the time of his birth" (section 3C, Citizenship Amendment Act 2003)
The pro-refugee protection approach was observed in the case; National Human Rights Commission vs State Of Arunachal Pradesh & Anr ; 9 January, 1996 – Protection of life and liberty.
"We are a country governed by the Rule of Law. Our Constitution confers certain rights on every human being and certain other rights on citizens. Every person is entitled to equality before the law and equal protection of the laws. So also, no person can be deprived of his life or personal liberty except according to procedure established by law. Thus the State is bound to protect the life and liberty of every human being. Be he a citizen or otherwise."
The “Infiltrators” and “illegal immigrant” narrative of BJP RSS Post 2000
The narrative of the “illegal immigrant,” particularly from Bangladesh, is rooted in the Rashtriya Swayamsevak Sangh’s aspiration for "Akhand Bharat." The word “infiltrator” has also been used repeatedly by the Hindu right to refer to Muslim immigrants, particularly in Assam, these immigrants were treated, not as “aliens” or “illegal immigrants,” but as “infiltrators,” who represent a sinister threat to India. (Poor people in south asia running away from their countries are a threat for the RSS. I Wonder why.)
A substantial body of propaganda texts drafted by the parivar’s ideologues or supporters outside the fold chillingly, solidly, and in great detail outlined the supposed manifold dangers of ‘infiltration’ [Bharatiya Janata Party 1994; Joshi 1994; B Rai 1992, 1993]. The apparition of impoverished, illiterate and bigoted Muslim Bangladeshis migrating en masse as a ‘silent, invisible invasion’ and ‘demographic aggression’ on India began to loom large [Joshi 1994; B Rai 1992, 1993].
The Illegal Migrants (Determination by Tribunals) Act, 1983
The Act was enacted amidst allegations that a large number of Bangladeshi Muslim immigrants were being included in the electoral rolls. The Election Commission had asked the state government to identify constituencies with a big rise in the number of voters, but the state did not do much. The electorate in Assam had reportedly grown by 10.2% between 1970 and 1971, 10.42% between 1971 and 1977, and by a further 10.3% during 1978.
The main demand of the Assam movement was detection and expulsion of foreigners in the state. Its focus was on the Bangladeshis though according to some estimates they were only around 40% of the immigrants, the rest being from the Hindi-speaking region or of Nepali origin. It began as a secular movement of all the Assamese, but always ran the risk of turning communal because of the religious slant given to it since most Bangladeshi immigrants were Muslims. The Nellie massacre of more than 300 Bangladeshis in 1983 did give it a communal angle. A VHP leader even said that Bangladeshi infiltration was a Pakistani conspiracy to turn Assam into a Muslim state and that they “are supporting all kinds of terrorist activity” (Staff Reporter, Assam Tribune, December 23, 2001). However, now most of the AASU leaders have appealed to the people not to communalise this issue (The Assam Tribune, July 15, 2005) and even told the BJP recently that they would not tolerate such a communal slant. The act applies only to Assam. The rest of India has the Foreigners’ Act 1946 which puts the onus on the accused to prove his/her Indian nationality.
My personal opinion would be, the Citizenship Act was constitutionally subverted in 2003/05 itself by Atal Bihari Samthal Vajapayee and Babri Advani, and they did all this for the “illegal immigrant” propaganda. No one bothered to control the executive power wrt CAA 2003/2005 Ordinance Act. The 2019 CAA is not just unconstitutional, but also an act of Treason – a bunch of criminals betraying the people of India. Ill not be surprised if the passport office turns into a completely private enterprise serving only the NRIs.
And i saved the best for the last.
For B R Ambedkar, human equality is an overriding principle and his writings advance some of the most complex arguments in defence of this principle: The ethical norm of human equality makes place for worth rather than birth; does not assign people to fixed slots in advance; enables struggle against dominance, and advances a level-playing field to all against social prejudices.
It is a question of morals.
Great empires and small minds go ill together. – Edmund Burke.