Citizenship and immigration laws have been a delicate subject in India ever since independence. Remarking on the complexity of drafting citizenship laws, B.R. Ambedkar said, “Except one other article in the draft constitution, I do not think that any other article has given the drafting committee such a headache as this particular article. 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.”
While it is arduous for a country to demarcate its citizens from non-citizens at its inception as a unified whole, this problem was further accentuated in India for two reasons. One, the large scale movement of people during partition broadly on religious contours and second, the recurrent influx of immigrants and refugees owing to domestic instability in neighbouring countries. The citizenship laws had to be tweaked each time (five to be specific) whenever such a movement occurred and each such opportunity was seized by the lawmakers to earn political mileage.
Increasing dominance of religion in citizenship laws
The citizenship debate has started up again, for all the wrong reasons. The Citizenship (Amendment) Bill, 2016 seeks to make drastic changes in the citizenship and immigration norms of the country by relaxing the requirements for Indian citizenship. The problem here is not with the flexibility of the rules, but the applicability of the amendments on purely religious lines. The Citizenship Act of 1955 denies citizenship rights to any illegal immigrant, whereby an ‘illegal immigrant’ is defined as a person who (i) enters India without a valid passport or with forged documents, or (ii) who stays in the country beyond the visa permit.
The proposed Bill amends this definition to exclude “minority-religious individuals” – specifically Hindus, Sikhs, Jains, Parsis and Christians – from “Muslim-dominated countries” – specifically Afghanistan, Bangladesh and Pakistan – from the ambit of being an “illegal immigrant”. The Bill further reduces the requirement of 11 years to acquire “citizenship by naturalisation” to only six years of ordinary residence for such immigrants. In simpler terms, this means that a Hindu from Pakistan can cross the border illegally and simply claim Indian citizenship after six years!
The Bill is a furtherance of the BJP’s election promise to grant citizenship to Hindus from Muslim majority countries. In its 2014 parliamentary election manifesto, the BJP had declared India to be a natural home for persecuted Hindus around the world and welcomed them to seek refuge; while making a distinction between Muslim and Hindu refugees during an election rally, Prime Minister Narendra Modi had said, “We have a responsibility towards Hindus who are harassed and suffer in other countries. India is the only place for them. We will have to accommodate them here”.
A tainted history
This is not the first time that religion is being made the consideration for the conferral of citizenship, notwithstanding that the manifestation has never been so direct on previous occasions. A veiled reference to religion can be found in Article 6 and 7 of the constitution. Article 6 confers citizenship to people who migrated to what is now India after the announcement of partition, whereas article 7 grants citizenship to individuals who migrated to Pakistan after the announcement of partition but returned to India later on. Those included in the second category had to go through an elaborate process of registration before they could be awarded citizenship rights.
Although neutral on the surface, these provisions have deep religious markers attached to them. While article 6 was directed towards Pakistani Hindus who had moved to India, article 7 implicitly referred to the Indian Muslims who had left India during the violence of partition but wanted to return to claim back their lives, livelihood and property. Termed as the ‘obnoxious clause,’ there was a pronounced resistance to grant citizenship to such people since their ‘loyalties could not be determined’.
However, what is relevant for our purpose is that the expression of religion was not explicit in the text, but was deeply embedded in the framing of the law.
The Assam Accord of 1985 was the second significant attempt to cloak religion with citizenship laws. The massive wave of immigration from Bangladesh had altered the demographic structure of Assam, leading to a staggering growth of the Muslim population. Unchecked immigration and a dwindling Hindu population caused resentment among the native Assamese, lead by the All Assam Students’ Union (AASU). The Congress government at the Centre responded by enacting the Illegal Migrant (Determination by Tribunal) Act, 1983, which provided for the detection and expulsion of illegal immigrants from the state. Their aim was to score two goals – check the political unrest and address the vulnerabilities of the Muslim migrants. The word illegal immigrant was a thinly caped reference to the Muslims who had entered the state. However, the burden of proof shifted to the complainant from the accused, in contrast to the pan-India Foreigners Act, 1946. The inevitable consequence was that only a handful of people could be deported. The farce of the Illegal Migrant Act made the Muslim migrants compassionate Congress supporters, which resulted in the party’s victory in the state. The act was struck down by the Supreme Court in 2005 for being discriminatory, but long after the political advantage of it was reaped.
The Illegal Migrant Act consequentially failed to subdue the chaos in Assam, forcing the Congress government to negotiate the ‘Assam Accord’ with AASU. The accord declared every individual entering Assam after 1971 an ‘illegal immigrant.’ Again, the word illegal immigrant was a latent reference to the Muslims who were now rendered incapable of obtaining Indian citizenship even after one and half decades of residence. Their franchise was snatched away, resulting in the victory of Asom Gana Parishad, the political wing of AASU. The NDA government amended section 3 of the Citizenship Act in 2003 to try and further seize citizenship rights of all children born to such ‘illegal immigrants’.
The amendment to the citizenship rules in 2004 was the first instance where religion was made an explicit ground for granting citizenship. The increasing vulnerability of minority Hindus in Pakistan resulted in the movement of over 17,000 individuals over the western border. Once in India, these people simply refused to return. The government amended the citizenship rules of 1956 to specifically accommodate such Hindu migrants. Section 3(2)(ii) of the amendment reads: “In respect of minority Hindus with Pakistan citizenship who have migrated to India more than five years back… the authority to register a person as a citizen of India… shall be the Collector of the district where the applicant is normally resident”. The religious markers were always present; they just became more intelligible with successive changes.
Legal fallacies of the proposed law
The Citizenship (Amendment) Bill also fails on the tenets of international refugee law. Although India is not a signatory to the 1951 UN Refugee Convention, granting refuge based on humanitarian considerations is arguably a norm of customary international law. There are two fallacies with the proposed law in this regard. First, the Bill terms minority religious people as migrants, when they are not migrants but refugees. The word migration refers to the voluntary movement of people, primarily for better economic prospects. In contrast, refuge is an involuntary act of forced movement. The concerns of refugees are human rights and safety, not economic advantage. The purpose and intention of the Bill, as stated by the home minister, is to provide shelter to vulnerable, religiously persecuted people whose fundamental human rights are at risk. The correct terminology is important because the laws and policies for migrants and refugees are entirely different.
Second, shelter to individuals of a select religion defeats not only the intention but also the rationality of refugee policy. If the motive of the government is to protect religiously persecuted people in the neighbourhood, the question of why they are ignoring the Muslim community is inevitable. Muslims are considerably discriminated against and exploited in the neighbouring countries of China, Sri Lanka and Myanmar. Their demands for asylum in India have fallen on deaf ears. The 36,000 Rohingyas Muslims from Myanmar who fled to India in the wake of 2015 insurgency is just one such example.
The proposed act also violates India’s long-standing refugee policy. Although India does not have a codified refugee policy, the basic tenants of the scheme were listed by Jawaharlal Nehru during the Tibetan refugee crisis. One of the primary conditions given then was that refugees would have to return to their homeland once normalcy prevailed. The proposed law not only provides citizenship rights to such refugees, but greatly relaxes the procedure to avail of them. From reducing the registration fees to Rs 100 from Rs 3000 to delegating the authority from the Union government to district magistrate for speedy processing of applications, the proposed law serves citizenship to illegal immigrants on a platter.
Notwithstanding the tampering of domestic law with religious markers, the proposed Bill, if passed, will also put our international relations in jeopardy. The Bill will stamp these countries as institutions of religious oppression and worsen bilateral ties in an already skewed regional socio-political atmosphere. The new law will also act as a push to the movement of India’s citizenship policy on jus soli to the racially manifested jus sanguine principle, something which was actively avoided by our constitution makers.
What the Congress tried to do in Assam with the Muslims is a replica of what the BJP and Sangh are seeking to do with the Hindus in rest of India – altering citizenship laws and mastering vote bank politics. There is no harm in accommodating religiously persecuted people in the country. However, India’s ‘law of return‘ should be looked at with suspicion, for it severely undermines the otherwise secular socio-legal framework of our nation.
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