CITIZENSHIP LAWS – INDIA AND ASSAM

30 CITIZENSHIP LAWS – INDIA AND ASSAM

SIGNIFICANCE OF CITIZENSHIP

Citizenship defines the relationship of an individual with a political community, and signifies the individual’s full and equal membership of that community. A citizen is defined in opposition to an ‘alien’; the exclusion of aliens is central to the concept of modern citizenship. The Constitution gives some fundamental rights to non-citizens — the right to equality before the law (Article 14); protection of life and personal liberty (Article 21); freedom to manage religious affairs (Article 25), for example. However, some other fundamental rights, such as prohibition of discrimination on grounds of religion, race, caste, sex or place of birth (Article 15); equality of opportunity in matters of public employment (Article 16); and the six basic freedoms of speech and expression, peaceful assembly, forming associations or unions, movement, residence, and profession (subject to reasonable restrictions, Article 19), are available only to citizens. Also, only a citizen has the right to vote in elections to Lok Sabha and state Assemblies (Article 326), become a member of these Houses (Articles 84, 191d), and assume certain high offices such as those of President, Vice-President, Governor, and a judge of the higher judiciary.

PRINCIPLES OF CITIZENSHIP

Under the principle of jus soli (right of the soil), citizenship belongs to everyone born in the territory of a state. Jus sanguinis (right of blood), on the other hand, gives prominence to ties of blood in the grant of citizenship. 

CITIZENSHIP ARTICLES AND LAWS

Articles 5-11 of the Constitution describe the various categories of persons who are entitled to citizenship. These were enforced on November 26, 1949, ahead of the commencement of the Constitution on January 26, 1950. Article 11 empowers Parliament to regulate citizenship by law; the Citizenship Act was, therefore, passed in 1955. It has since been amended 1986, 2003, 2005, and 2015.

Article 5 provided for citizenship on the commencement of the Constitution: all those domiciled and born in India, either of whose parents was born in India, or anyone who had been ordinarily resident in India for at least five years preceding the commencement of the Constitution. Under Article 6, anyone who migrated to India before July 19, 1948, from territory that had become part Pakistan, automatically became a citizen if either of their 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 had subsequently returned on resettlement permits, too, were included within the citizenship net (Article7). Under Article 8, a person of Indian origin residing outside India who, or any of whose parents or grandparents, was born in India can register as an Indian citizen with the relevant Indian diplomatic mission.

How did the situation in Assam impact the nature of citizenship?

To protect the social and cultural interests of the Assamese people, Parliament enacted The Immigrants (Expulsion from Assam) Act in 1950, under which the central government could order the removal of any person who had come into Assam from outside India, and whose “stay… in Assam is detrimental to the interests of the general public of India or of any section thereof or of any Scheduled Tribe in Assam”. However, the aftermath of the Partition of India, including the failure of the two-nation theory that was manifested in the birth of Bangladesh, and the nature of the topography and porous border in the east, saw continued largescale infiltration into Assam — which triggered an agitation in the state that ultimately led to the signing of the Assam Accord of August 15, 1985. The 1986 amendment to the Citizenship Act, 1955, inserted Section 6A under which all persons of Indian origin who had entered Assam before January 1, 1966 and been its ordinary residents were deemed to be Indian citizens; those who came after January 1, 1966, but before March 25, 1971, were to get citizenship upon registration at the expiry of 10 years after their detection as foreigner; and those who entered after March 25, 1971, upon identification under the Illegal Migrant (Determination by Tribunal) (IMDT) Act, 1983, were to be deported.

It was in 1966 that the atrocities in East Pakistan started, explains Hajela, triggering the exodus. On March 25, 1971, the Pakistan Army began operations in Dhaka, marking the start of the Bangladesh war. Presumably, people on the other side of the border would have no reason to flee once the liberation war actually started.

The 1986 amendment made the Citizenship Act less inclusive, by adding to the principle of jus soli the condition that in addition to one’s birth in India (for those born on or after July 1, 1987), at least one parent must be be an Indian citizen at the time of birth.

The 2003 took it closer towards jus sanguinis and away from jus soli — for those born after the commencement of the Act, not only was at least one parent required to be an Indian citizen, the other could not be an illegal migrant. In 2004, Parliament was told that as of 2001, there were 1.2 crore illegal immigrants in India, of whom 50 lakh were in Assam.

What are some of the cases linked to citizenship in Assam that have gone to the Supreme Court?

In 2005, a three-judge Bench led by Chief Justice of India R C Lahoti struck down the IMDT Act. It expressed concern over demographic change in Assam, and made references to “international Islamic fundamentalism” (Sarbananda Sonowal vs Union Of India & Anr, July 12, 2005; Sonowal, now Chief Minister of Assam, was then an Asom Gana Parishad MP). In 2007, the court quashed the Foreigners (Tribunals for Assam) Order, 2006, which put the onus of proving a person a foreigner on the complainant (Sonowal II, December 5, 2006). In Assam Sanmilita Mahasangha & Ors vs Union Of India & Ors, December 17, 2014, where the constitutionality of the 1986 amendment was challenged, the court referred the matter to a Constitution Bench.

What is the new proposed amendment to the Citizenship Act?

The Citizenship (Amendment) Bill, 2016, seeks to amend the 1955 Act to permit members of six communities — Hindu, Sikh, Buddhist, Jain, Parsi and Christian — from Pakistan, Bangladesh and Afghanistan eligible for citizenship if they had entered the country before December 14, 2014. Under the original Act, an applicant seeking citizenship by naturalisation must have resided in India during the last 12 months, and for 11 of the previous 14 years. The proposed Bill relaxes the 11-year requirement to six years for applicants belonging to these six religious communities and three countries.

Many organisations in Assam are up in arms against the proposed Bill, which they fear may trigger demographic change in Assam as illegal Bangladeshi Hindu migrants are granted citizenship. 

ASSAM NATIONAL REGISTER OF CITIZENS

29 ASSAM NATIONAL REGISTER OF CITIZENS

On Monday, Assam released the final draft of the National Register of Citizens (NRC), seven months after it released the first draft on 1 January 2018, which included 1.9 crore names out of a total applicant pool of 3.29 crore. Monday’s list however, left our 40.07 lakh people wherein 2.89 crore people were found eligible out of 3.29 crore applicants.

What is the NRC?

During the census of 1951, a national citizen register was created that contained the details of every person by village. The data included name, age, father’s/husband’s name, houses or holdings belonging to them, means of livelihood and so on. These registers covered every person enumerated during census of 1951.

For a person’s name to be included in the updated NRC list of 2018, he/ she will have to furnish:

■ Existence of name in the legacy data: The legacy data is the collective list of the NRC data of 1951 and the electoral rolls up to midnight of 24 March 1971. This is the cutoff date in the Assam Accord of 1985, agreed upon by the Centre, the state and the All Assam Students’ Union, at the end of a six-year movement against migration from Bangladesh.

■ Proving linkage with the person whose name appears in the legacy data.

How is Assam different? Why a separate National Register of Citizens?

This is because of a history of migration. During British rule, Assam was merged with Bengal Presidency for administrative purpose. From 1826 to 1947, the British continuously brought migrant workers to Assam for cheap labour in tea plantations. Two major waves of migration came after British rule — first after Partition, from East Pakistan (now Bangladesh), and then in the aftermath of the liberation of Bangladesh in 1971. This eventually led to an agitation during 1979-85, led by the All Assam Students’ Union. It culminated in the 1985 Assam Accord signed with the Rajiv Gandhi government, under which illegal migrants were to be identified and deported. Clause 6A was inserted in the Citizenship Act with special provisions for Assam.

Why is the NRC being updated now?

Updating the NRC has been a decades-old demand, with various modalities and cut-off dates suggested over the years and many rounds of talks held.

Things began moving after a May 5, 2005, tripartite meeting among the Centre, Assam government and All Assam Students' Union. Chaired by then Prime Minister Manmohan Singh, the meeting decided to update the NRC.

The Supreme Court got involved in 2009 after an NGO, Assam Public Works, filed a writ petition for the deletion of illegal migrants' names from voter lists in Assam.

Pilot projects for updating the NRC started in two blocks (in Kamrup and Barpeta districts) in June 2010 but were stopped the following month because of law-and-order problems. In July 2011, the state government set up a cabinet subcommittee to simplify the procedure.

In May 2013, the apex court directed the Centre to finalise the modalities by July 16, 2013. In 2014, the court directed the government to resume updating the NRC and has since been monitoring the process.

Distribution and receipt of filled-in NRC application forms began in 2015. Acceptance of applications ended on August 31, 2015. The verification process started on September 1, 2015.

How is verification carried out?

The updating process started in May 2015 and ended on 31 August 2015. A total of 3.29 crore people applied through 68.31 lakh applications. The process of verification involved house-to-house field verification, determination of authenticity of documents, family tree investigations in order to rule out bogus claims of parenthood and linkages and separate hearings for married women.

Who all have been left out?

Out of the 40.07 lakh applicants who have been left out of the final draft NRC released, on Monday, 2.48 lakh applicants have been kept on hold including the D-Voters (doubtful voters who have been disenfranchised on account of failure to prove citizenship), descendants of D-voters and persons whose cases are pending before the foreigners tribunal. The state however, has not revealed the reason for keeping others on hold.

What next?

The process of filing claims and objections will start on 30 August, during which people whose names have been left out of the NRC Assam, can once again appeal to have their case reconsidered. Those left out are not yet being labelled as “foreigners” or being sent to detention centres. However, only those applicants who had submitted their applications in 2015 will be considered.

UPSC GK: What is the Citizenship (Amendment) Bill, 2016? (POLITY)

In recent weeks, Assam has seen many protests over the proposed Citizenship (Amendment) Bill, 2016.

The Bill has been termed “Anti-Assam” by BJP's ally Asom Gana Parishad, and similarly criticised by other regional parties.

And, earlier this month, when the Joint Parliamentary Committee on the Bill visited Assam and Meghalaya to hear from the locals, it did so amid protest voices which said the move would make Assam a “dumping ground for Hindu Bangladeshis”.

What does the Bill aim for?

With The Citizenship (Amendment) Bill, 2016, the government plans to change the definition of illegal migrants. The Bill, introduced in the Lok Sabha on July 15, 2016, seeks to amend the Citizenship Act, 1955 to provide citizenship to illegal migrants, from Afghanistan, Bangladesh and Pakistan, who are of Hindu, Sikh, Buddhist, Jain, Parsi or Christian extraction. However, the Act doesn’t have a provision for Muslim sects like Shias and Ahmediyas who also face persecution in Pakistan.

The Bill also seeks to reduce the requirement of 11 years of continuous stay in the country to six years to obtain citizenship by naturalisation.

When did this idea gain stream?

The BJP had promised to grant citizenship to Hindus persecuted in the neighbouring countries during the 2014 General Election. In the party's election manifesto, the BJP had promised to welcome Hindu refugees and give shelter to them.

Who are illegal immigrants?

According to the Citizenship Act, 1955, an illegal immigrant is one who enters India without a valid passport or with forged documents. Or, a person who stays beyond the visa permit.

Why and who all are opposing the Bill in Assam?

BJP's coalition partner Assam Gana Parishad has threatened to cut ties with the party if the Bill is passed. It considers the Bill to work against the cultural and linguistic identity of the indigenous people of the State. NGOs such as The Krishak Mukti Sangram Samiti and students' organisation All Assam Students’ Union also have come forward opposing the Bill.

All Opposition parties, including the Congress and the All India United Democratic Front, have opposed the idea of granting citizenship to an individual on the basis of religion. It is also argued that the Bill, if made into an Act, will nullify the updated National Registration of Citizenship (NRC). The process of updating the NRC is currently underway in Assam.

What is NRC?

The National Register of Citizens (NRC) is meant to identify a bona fide citizen. In other words, by the order of the Supreme Court of India, NRC is being currently updated in Assam to detect Bangladeshi nationals who might have entered the State illegally after the midnight of March 24, 1971. The date was decided in the 1985 Assam Accord, which was signed between the then Prime Minister Rajiv Gandhi and the AASU. The NRC was first published after the 1951 Census in the independent India when parts of Assam went to the East Pakistan, now Bangladesh.

The first draft of the updated list was concluded by December 31, 2017. The second draft is yet to be released.

How will the Bill affect the updated NRC list?

While Bill is designed to grant citizenship to non-Muslim refugees persecuted in neighbouring countries, NRC does not distinguish migrants on the basis of religion. It will consider deporting anyone who has entered the State illegally post-March 24, 1971, irrespective of their religion. Currently there are six detention camps for illegal migrants in Assam but it’s still not clear how long the people will be detained in these camps. The process of deportation or duration of detention is not clear as it has not been stated by the government. But if the Bill becomes an Act, the non-Muslims need not go through any such process, meaning this will be clearly discriminating against Muslims identified as undocumented immigrants.

Other than Assam, what are the States likely to be affected?

States sharing borders with Bangladesh, Pakistan and Afghanistan are likely to be affected.

The Meghalaya Democratic Alliance (MDA) government, an ally of the BJP, has opposed the Bill. Calling the bill "dangerous," the Meghalaya government said that they don't agree with the idea of non-Muslims acquiring citizenship after six years of living in the country.

What's the status of the Bill now?

The Bill after been discussed in the Lok Sabha, was referred to a joint select committee in August 2016. The members of the Parliamentary Committee visited Barak Valley, the Bengali-majority area of Assam, and Meghalaya to discuss it with various organisations. They reportedly spoke to about 200 organisations.

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