New Citizenship Regime GS Paper 2
This article is based on “The misadventure of a new citizenship regime” which was published in The Hindu on 27/11/2019. It talks about issues related to the nationwide exercise for preparing National Register of Citizens.
Recently, a nationwide exercise for counting the citizens of the country was proposed in the Parliament in the form of National Register of Citizens (NRC).
The objective of this latest initiative is to count citizens so as to separate them from non-citizens and expel the infiltrators out of the country.
- The previously conducted exercise (NRC-1951) counted theresidents (a person who has resided in a local area for the past 6 months or more) rather than citizens of the country.
Background
- The need for this nationwide exercise came into limelight in the backdrop of the similar exercise conducted in the state of Assam (2019) under the supervision of the Supreme Court.
- Also, the Office of the Registrar General and Census Commissionerwill upload the Census of 2021 along with the National Population register (NPR) next summer.
- NPR is the database that consists of a comprehensive identity of every usual resident in the country.
- As of January 2019, nearly 123 crore Aadhaar cardshad been issued- which serves as a proof of residentship in India and not the citizenship. This can help in the formation of the NPR.
Issues and Challenges associated with Nationwide NRC
The underlying rationale, feasibility, and moral legitimacy with a nationwide NRC gives birth to various challenges:
- Legal Inconsistencies:The NRC exercise raises suspicion of alienage in the minds of the citizens. The process of NRC is inconsistent with existing laws such as:
- Under the Foreigners’ Act, 1946,the burden of proof lies on the individual charged with being a foreigner but in NRC the entire population has to give proof of their citizenship.
- Even the Citizenship Act, 1955which deals with the provisions of acquisition and termination of Indian citizenship does not contain any provision for identifying aliens. But NRC declares the non-nationals as aliens.
- The Supreme Courtin 2005 struck down the Illegal Migrants (Determination by Tribunal) Act (IMDT Act- which highlighted the mechanism for identifying the foreigners) claiming that the provisions mentioned in it are very stringent making the detection and deportation of illegal migrants almost impossible. But the NRC tries to repeat the same thing.
- Paucity of Resources:The associated costs and scarcity of resources to frame such nationwide NRC is a big challenge before the government.
- Financial Costs:The entire Assam exercise is reported to have cost around ₹1,600 crore to enrol 3.3 crore applicants which also ended up excluding 19 lakh people.
- On this basis, a nationwide NRC would require an outlay of ₹4.26 lakh crore-which is four times the budgetary outlay for education this year.
- Human Resources:The work of authenticating the Indian electorate of 87.9 crore people would necessitate the deployment of around 1.33 crore officials (more than half of the government officials) for at least next 10 years. This will incur huge administrative burden on the already stressed administrative machinery.
- Financial Costs:The entire Assam exercise is reported to have cost around ₹1,600 crore to enrol 3.3 crore applicants which also ended up excluding 19 lakh people.
- Social Risks:The NRC would give rise to the practice of “paper citizenship” acquired through the networks of kinship. The one who is not included in the list would lose the Indian nationality, putting undocumented nationals at risk of losing their citizenship in a futile search for non-national migrants who are better documented, as was found in the case of Assam. This poses a grave fear in the minds of the people.
- Inherent Political Drawbacks:There are many uncertainties that persist related to this exercise like:
- Cut-off date:There is speculation about a July 1948 date as the cut-off date in light of constitutional provisions, post-Partition jurisprudence, and the enactment of the Citizenship Act in 1955, but it still is unclear.
- Will the enrolment process in the NRC be compulsory or voluntary (as was the case in Assam), and what might be the consequences of not seeking registration is debatable.
- Federal Challenge:Seeking the consent of State governments to conduct this exercise is a challenging task. Many North-eastern states are already protesting the NRC.
- NRC versus Citizenship Amendment Bill:On one hand NRC carves out a framework to eliminate illegal immigrants, on the other hand, the Citizenship Amendment Bill (2016) creates a path to grant citizenship to preferred groups of the immigrants.
- For instance, the implicit assumption in the case of Assam NRC was that the infiltrators were Bangladeshis(primarily Muslims) who must be disenfranchised. Whereas the Citizenship Amendment Bill explicitly promises to grant citizenship to migrants belonging to specified minority religious groups (all except Muslims) who face the fear of persecution in Afghanistan, Bangladesh, and Pakistan.
Impact of Nationwide NRC
- Fear of Victimization:The exercise would lead to enhanced anxiety in the minds of excluded sections of the society, especially the minorities. The series of recent events such as vigilante violence against minorities, the triple talaq legislation, and the reading down of Article 370 aggravates such fears.
- Psychological Fears:The fear of not having papers has already led to many suicides in Assam. The nationwide NRC would multi-fold such events.
Conclusion
- At the end of a prolonged debate on citizenship, the Constituent Assembly settled on theprinciple of ‘jus soli’ which means law of the soil or the birth-based citizenship as opposed to the racial citizenship implied by ‘jus sanguinis’ (the right of blood).
- The Citizenship Amendment Bill (CAB) and the NRC will only consolidate the shift from birth-based citizenship to the racial citizenship regime.
- Constitutionally, India is asecular country- following the idea of the nation as a civic entity by transcending the ethnic differences.
- The NRC-CAB combination signals a transformative shift from a civic-national conception to an ethnonational conception of India.This is expected to have adverse repercussions on the delicate and plural social fabric of the nation.
- To aptly identify and detect foreigners, and to secure the borders against illegal immigrants is a primary challenge that needs to be overcome first in order to address the internal security challenges faced by the nation.
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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. o All those domiciled and born in India were given citizenship. o Even those who were domiciled but not born in India, but either of whose parents was born in India, were considered citizens. o Anyone who had been an ordinary resident for more than five years, too, was entitled to apply for citizenship. § Article 6: It provided rights of citizenship of certain persons who have migrated to India from Pakistan. o 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. o But those who entered India after this date needed to register themselves. § Article 7: Provided Rights of citizenship of certain migrants to Pakistan. o Those who had migrated to Pakistan after March 1, 1947 but subsequently returned on resettlement permits were included within the citizenship net. o 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. § Article 8: Provided Rights of citizenship of certain persons of Indian origin residing outside India. o 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. § Article 9: Provided that if any person voluntarily acquired the citizenship of a foreign State will no longer be a citizen of India. § Article10: It says that every person who is or is deemed to be a citizen of India under any of the foregoing provisions of this Part shall, subject to the provisions of any law that may be made by Parliament, continue to be such citizen. § Article 11: It empowers Parliament to make any provision with respect to the acquisition and termination of citizenship and all matters relating to it. 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: o 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. o 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. o 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. § By Registration: Citizenship can also be acquired by registration. Some of the mandatory rules are: o A person of Indian origin who has been a resident of India for 7 years before applying for registration. o A person of Indian origin who is a resident of any country outside undivided India. o A person who is married to an Indian citizen and is ordinarily resident for 7 years before applying for registration. o Minor children of persons who are citizens of India. § By Descent: o 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. o 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. o 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. § By Naturalisation: o 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 does not provide for dual citizenship or dual nationality. It only allows citizenship for a person listed under the provisions above ie: by birth, descent, registration or naturalisation. § 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. o 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. o 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. § 2003 amendment: The amendment made the above condition more stringent, keeping in view infiltration from Bangladesh. o 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. § With these restrictive amendments, India has almost moved towards the narrow principle of jus sanguinis or blood relationship. § This lays down that an illegal migrant cannot claim citizenship by naturalisation or registration even if he has been a resident of India for seven years. § Citizenship (Amendment) Bill 2019 : The amendment proposes to permit members of six communities — Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Pakistan, Bangladesh and Afghanistan — to continue to live in India if they entered India before December 14, 2014. o It also reduces the requirement for citizenship from 11 years to just 6 years. o Two notifications also exempted these migrants from the Passport Act and Foreigners Act. o A large number of organisations in Assam protested against this Bill as it may grant citizenship to Bangladeshi Hindu illegal migrants. o 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. o 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). § A five-judge Bench of the Supreme Court is yet to examine the constitutionality of Section 6A under which the current NRC has been prepared. § 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. o The provisions of the IMDT Act made it difficult to deport illegal immigrants. o 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. o This was eventually replaced with the Foreigners (Tribunals for Assam) Order, 2006, which again was struck down in 2007. o 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. |
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