Abstract

Topic – Constitutional Law and Governance.

Sub Topic- The Citizenship ( Amendment ) Bill, 2018 in light of

Constitutional Principles”.

President Ronald Reagan once said that “a nation that cannot control its borders is not a nation.

Citizenship is one of the basic requirements of human beings to live a dignified life and enjoy
civil and political rights in a sovereign state. It is not just a document It is the citizenship that
confers on an individual several social and economic benefits. A person who is a citizen of any
nation is a legal resident of that country. Citizens are entitled to enjoy all rights and opportunities
available to them. In India a person becomes a citizen of India if he or she fulfils any of the
aforesaid conditions. Any persons from across the World can acquire Indian citizenship as per
law and norms made time to time by the government of India. In India the acquisition of
citizenship is governed by Indian Citizenship Act, 1955.

However, recently the government of India has proposed certain amendments in the principal
Act and it has been passed by the assembly . The Citizenship (Amendment) Bill, 2016 proposed
to amend the Citizenship Act. As per the proposed amendments, the illegal migrants belonging to
the Hindu, Sikh, Buddhist, Jain, Parsi or Christian religious communities coming from
Afghanistan, Bangladesh or Pakistan shall be granted Indian citizenship. The Bill created panic
in state of Assam because it has been proposed that the migrants from these countries will be
given Indian citizenship and would be settled in State of Assam. This decision of the govt. has
received strong resentment from the people of Assam as it will be a setback for the indigenous
people who are staying there . This Article closely examine the of newly passed Amendment in
citizenship bill known as the Citizenship Amendment Bill, 2016
 “A nation that cannot control its borders is not a nation.”

- Ronald Reagan

Though what did Mr. Reagan exactly meant by the term “controlling the borders” is still a matter
of speculation, but modern day politicians and bureaucrats mostly refer to controlling illegal
immigration as synonymous with controlling of borders1.

Illegal immigrants, more often than not, are termed as juxta pose of citizens, but that is not the
case. There are varied meanings attached to them under various laws, and laymen often forget to
highlight the nuances amongst illegal immigrants, foreigners, aliens and refugees. In a global
economy, in both developing and developed countries alike, like that of India and USA, this
issue is arousing serious debates, both on political and humanitarian grounds, and must be
tackled at the earliest.

Citizenship is one of the basic requirements of human beings to live a dignified life and enjoy
civil and political rights in a sovereign state. It is not just a legal manifestation in the form of a
document, but it is also a bundle of economic and social rights and benefits that are conferred to
a person.2 The importance of citizenship lies in the fact itself that no country confers all rights
equally on citizens and the non-citizens. Therefore, in order to share a common pedestal with
his/her co-inmates and to have at least one land, where his/her interests would be treated as
primary, a person must seek citizenship of a particular nation, in which he/she is willing to live
in. A person with no citizenship or residing in a state without a valid permit is more often than
not a persona non grata over there3, and faces a severe hostile environment, both from his fellow
residents and from the State machinery alike. Moreover, the function which the State has to
perform as a Parents Patria towards its’ citizens, is no longer obligated to do so to an illegal
immigrant, thus he/she has to forego even that particular benefit.

1
Mark Krikorian, The new case against immigrants, 1 (2008).
2
Indira v State of Kerala 2006 (2) JCR 276

3
Bhauri Lal Jain And Anr. Vs Sub-Divisional Officer And Ors. AIR 1973 Pat. 1
In most of the countries across the globe, citizenship is linked with a person with the help of
three grounds- naturalization, acquisition, and deprivation4. Naturalization is the process by
which a person is deemed to be the citizen of the country unless things on the contrary occurred.

Citizenship can also be termed as a link between the State and an individual, which may be
established naturally or by external efforts. This method of external efforts is termed as nothing
but acquisition.

A person can acquire citizenship of the country as per its’ norms.

Any person from across the world can acquire Indian citizenship, in accordance with law as
made from time to time by the Government of India, with the principal statute being the Indian
Citizenship Act, 1955.

There are several grounds mentioned in the Act to be met for acquisition of Indian citizenship.
However, recently the Government of India had proposed certain amendments in the principal
Act, which has been passed by the Lok Sabha. The Citizenship (Amendment) Bill, 2016
proposed to amend the Citizenship Act, 1955 on a few specific grounds. As per the proposed
amendments, the migrants belonging to the Hindu, Sikh, Buddhist, Jain, Parsi or Christian
religious communities, originating from Afghanistan, Bangladesh or Pakistan, though they
qualify the definition of illegal immigrants as per Section 3 of the Act5, shall be granted Indian
citizenship. The Bill created panic in the state of Assam because it has been badly affected by
illegal immigration since ages and for long, the indigenous people over there have been
protesting against it, urging a need to update the National Register for Citizens and deporting the
illegal immigrants back6. The Government had previously retaliated on a positive note to their
contentions by updating the Electoral roll, but this bill would surely deliver a strong blow to
them.

With this situation as the background, the objective of the present paper is to analyze the
proposed Citizenship (Amendment) Bill, 2016. The paper would evaluate the Amendments made

4
Igor Stilks, The Nation and its’ citizens, 1 (2013)
5
The Citizenship Act , Ss. 3 ( 1955)
6
Assam Sanmilita Mahasangha & Ors vs Union Of India & Ors 2014 AIR 573
along with the provisions of the principal Citizenship Act, 1955. The paper would also evaluate
the impacts of this bill on the people of Assam. But before moving ahead, it is desirable here to
locate the origin and roots of citizenship in pre and post Constitution phase in India for getting a
clear understanding of the concept.

Concept of Indian citizenship

Till 1947, India was primarily a colony under the British Rule. During this period, all Indians
were British subjects. Even after independence, before the commencement of the Constitution of
India, the Indians were British subjects by virtue of Section 18 (3) of the Indian Independence
Act, 19477, unless they had already acquired citizenship of the United Kingdom or any other
country. Thus, citizenship, as a legal concept had not yet been manifested on the Indians, rather
only a concept of Nation State prevailed over them, by virtue of which they all were termed as
Indians, even if there wasn’t any legal document to support this.

The Constitution of India provided for Citizenship under Article 5 to Article 11 of it. By virtue
of Article 11 of the Constitution, the Parliament enacted the Citizenship Act, 1955. In the year
1961 India acquired certain territories such as of as Goa, Daman and Diu, Dadra and Nagar
Haveli, Pondicherry and Karaikal etc, from their erstwhile colonial rulers such as the Dutch or
the Portuguese. In the year 1975, Sikkim was also merged with India and became a constituent
state. In order to expressly provide citizenship for people in these territories, the Government of
India issued the Goa, Daman and Diu (Citizenship) Order, 1962, Dadra and Nagar Haveli
(Citizenship) Order, 1962 and Citizenship (Pondicherry) Order 1962, by exercising its’ powers
under section 7 of the Citizenship Act, 19558. For Sikkim, the President of India extended the
Citizenship act, 1955 and the relevant rules under Article 371-F(n) of the Constitution of India.
The Citizenship Act which was enacted in the year 1955 was amended by the Citizenship
(Amendment) Act 1986, the Citizenship (Amendment) Act, 1992, the Citizenship (Amendment)
Act, 2003, The Citizenship (Amendment) Act, 2005 and Citizenship (Amendment) Act, 2015.
Now the Government of India is ready to introduce certain amendments in this Act by The
Citizenship (Amendment) Bill, 2016.

7
Indian Independence Act, Ss. 18(3) (1947)
8
Indian Citizenship Act, Ss. 7 (1955)
(a) Citizenship within the Constitution of India

Articles 5 to 11 enshrined in Part II of the Constitution of India contain the law pertaining to
citizenship.

Article 5 provides for citizenship by domicile. To claim citizenship under this article there are
two conditions. Firstly, at the time of the commencement of the Constitution, the person must
have his/her domicile in India. Secondly, such person must fulfill any one of the following three
conditions (a) he was born in the territory of India, or (b) either of his parents was born in the
territory of India, or (c) he/she has been ordinarily resident in the territory of India for not less
than five years immediately preceding such commencement of the Constitution of India.

Article 6 grants citizenship to persons who migrated from Pakistan to present India before the
commencement of the Constitution of India, whereas Article 7 confers citizenship to those
persons who migrated to Pakistan after the announcement of Independence but later returned
back to India. But citizenship by virtue of Article 6 and 7 are available only after following
certain conditions of registration. These two provisions were definitely having religious
attachments. Article 6 provided shelter to Hindus who migrated from Pakistan whereas Article 7
provided shelter to Muslims who went to Pakistan but returned later on. Article 8 provided for
citizenship to those persons whose parents or grandparents were born in India, but are resident of
abroad. Such persons will be citizens of India if they have been registered to be so by the
diplomatic or consular representative of India in the concerned country. Article 9 provides that
any person who has acquired the citizenship of any other country will not be entitled to the
citizenship of India. Article 10 says that all citizens, once granted to be the citizen of India shall
continue to be citizens of India, whereas Article 11 confers power to make rules regarding
citizenship to the Parliament. In fact, the Parliament has the power to make rules regarding
citizenship, naturalization and aliens.
C. The Citizenship Act, 1955

The makers of our Constitution did not give a complete code of citizenship and left modification
and regulation of citizenship rights to the Parliament.9 Therefore, in the year 1955 by virtue of
Article 11 of the Constitution, the Parliament passed a comprehensive law for dealing with
citizenship. The main objective of this Act was to provide for ways of attainment and termination
of Indian citizenship10. The provisions of the Act may be broadly divided into three parts i.e. the
acquisition of citizenship, termination of citizenship and supplementary provisions. The Act
provides for five modes of acquiring the citizenship of India. The modes are an acquisition of
citizenship by birth, descent, registration, naturalization and by incorporation of territory. The
Act also provided for loss of citizenship by renunciation, termination, and deprivation. This Act
was amended for the very first time in 1986 and came to be known as the Citizenship
(Amendment) Act 1986. It provided that any person who was born in India on or after 26
January 1950, but prior to the commencement of the 1986 Act i.e. 1 July 1987, is a citizen of
India by birth. In the year 1992 with the help of the Citizenship (Amendment) Act 1992, the law
of citizenship by descent was altered. It provided that a person born after 26 January 1950 but
before the commencement of the Act shall be a citizen of India if the father is of Indian descent
at the time of birth. The Citizenship Act was again amended by the Citizenship (Amendment)
Act, 2003. It provided that a person born in India on or after 1 July 1987 is a citizen of India, if,
either parent was a citizen of India at the time of the birth. Those born in India on or after 3
December 2004 will be considered citizens of India only if both of their parents are citizens of
India or if one parent is a citizen of India and the other is not an illegal migrant ( i.e. maybe a
foreigner) at the time of their birth. It also provided that from 3 December 2004 onwards,
persons born outside India shall not be considered citizens of India unless their birth is registered
at an Indian consulate within one year of the date of birth. Though, in certain circumstances, it is

9
P. Nedumaran v. Union of India 1996 SCC (1) 742

10
NHRC v. State of Arunachal Pradesh 1993 (2) ALT 291
possible to register after one year with the permission of the Government of India. The
application for registration of the birth of a child must be made to an Indian consulate and must
be accompanied by an undertaking in writing from the parents of the child that he or she does not
hold the passport of another country. This Act was again amended by the Citizenship
(Amendment) Act, 2005. But this time no major changes were brought in this act except that in
place of two years mentioned in Section 5, the words “one year” were inserted. Now it made
clear that before making application for citizenship for the child, the parent must be residing
within the territory of India for a minimum period of one year. It will be pertinent to mention
here that a person who is residing in India for the last 11 years can apply for citizenship of India.

D. The Citizenship Amendment Bill, 2016

The Ministry of Home Affairs, Govt. of India, drafted the Citizenship (Amendment) Bill, 2016
on July 19, 2016. This Bill seeks to amend the principal Citizenship Act of 1955, which has itself
been amended for multiple times already. This Bill had been referred to a joint Parliamentary
committee of both the houses, under the chairmanship of Dr. Satyapal Singh for examination and
presenting a report to the parliament after considering the views and suggestions of individuals
and associations/bodies concerned.

This Bill seeks not to deport or imprison migrants belonging to the Hindu, Sikh, Buddhist, Jain,
Parsi or Christian religious communities coming from Afghanistan, Bangladesh or Pakistan,
rather confer them citizenship status. Under the Bill, such persons shall not be treated as illegal
immigrants for the purpose of the Citizenship Act. It also provides that the minimum years of
residency in India to apply for citizenship shall be reduced from eleven years to six years for
these migrants, which means that, even though a same illegal act may be done by two persons,
i.e. crossing the border without permit , one can apply for citizenship after 6 years and may be
immune from law ( “ a Hindu”) whereas another might have to face dire consequences(“ a
Muslim”). Thus, the only basis of differential treatment to these two would be their religious
identities. Interestingly this Bill, however, does not exclude only the Islam communities, rather
just because people don’t cite a communal angle, exclude non- existent religious groups like
Jews, Bahais etc.
 (A) Objects of the Amendment Bill

As per the statement of object and reasons mentioned in the Bill, the amendment has been
proposed to make eligible the abovementioned persons of these particular religious communities
for applying for Indian Citizenship since their presence in India as illegal immigrants do not
provide them with the option to do so. The other object is that many persons including the
aforesaid group of people are unable to produce proof of their Indian origin; hence they have to
apply for citizenship by naturalization under Section 6 of the Act, which requires a minimum
residency of 11 years. Therefore, the amendment proposes to reduce this period to 6 years.
Lastly, the Bill aims at registration of Overseas Citizen of India (in short OCI) cardholders,
whose license may be canceled if they violate any law.

(B) Criticism of the Bill

The bill has been criticized by legal luminaries, academicians, and several political leaders. 11
There have been several reasons behind the opposition to these proposed amendments.

Some of the major grounds and reasons of criticism of the Bill are as follows.

(a) A threat to Unity and Integrity of India The preamble of the Indian

The Constitution imposes obligations upon the Government of India to preserve and defend the
unity and integrity of India12. But the amendment proposed in the Bill may create chaos in
Assam which may distort the unity and integrity of India. The people of Assam has reasons to
oppose this decision of the government. The reason is that this Bill contradicts the Assam Accord

11
Pertinent to mention here that the bill faced severe opposition and debate in the Houses of the Parliament.
12
Khudiram Chakma v. State of Arunachal Pradesh 1994 Supp (1) SCC 615.
of 1985. As per this accord, all illegal migrants heading in from Bangladesh after March 25,
1971, would be deported. This accord was signed between the Government of India and Assam
Government on one side and All Assam Students Union, All Assam Gana Sangram Parishad on
the other side. This Accord ended a six years long mass movement demanding the deportation of
illegal immigrants because these immigrants were threatening the culture, identity and above all
the economic future of people of Assam. It is worthy to mention here that Section 6A was
inserted into the Citizenship Act, 1955 that provides for special provisions as to citizenship of
persons covered by the Assam Accord. Thus the Bill definitely goes against the settled terms of
the Assam Accord.

(b) Alleged Violation of Many Constitutional rights

1) The fundamental right of the indigenous people under Article 14 to be treated equally in
the matter of having an electoral roll comprising of only the legitimate citizens of India;

2) The fundamental right of the indigenous people under Article 21 to protect their own
homeland, territory, culture, and dignity from the illegal alien occupation which is an inviolable
right

3) The fundamental right of the indigenous people under Article 29 to conserve and preserve
their distinct language, script, and culture.

4) According to Article 31, there is a major emphasis that the indigenous peoples will be able
to protect their cultural heritage and other aspects of their culture and tradition, which is
extremely important in preserving their heritage.

5) The influx of illegal migrants constitutes "external aggression" as provided under Article
355 of the Constitution. And the Union is bound to protect the State from such external
aggressions.13

13
Gramophone Company of India Limited v. Birendra Pandey AIR 1984 SC 677.
(c)Against Secularism

India is a secular state. The grant of citizenship on the basis of religion goes against the settled
principle of secularism in India.14 Although the term religion is not explicit in the text of the bill,
but it is deeply embedded in it.

(c) Economic Grounds

It is evident that the Government of a State shall always try to protect the interest of its own
people. Therefore in an overpopulated country like ours, granting citizenship to outsiders will
affect the economic growth of citizens, along with resulting in a cultural and identity crisis. Thus
the question of violation of Article 21 will arise. But at the same time, Article 21 can be claimed
by any person and providing citizenship rights to these persons may serve the purpose of
humanity in general in a better way. But this, would definitely curtail the existing facilities of
Indian citizens and a developing state like that of ours can barely afford to do that.

(d) Vague procedure to cancel OCI registration

The Bill allows cancellation of OCI registration for violation of any law. But the offenses
covered under this have not been mentioned, hence, this provision is itself ambiguous, based on
discretion and contains a lot of gaps.

A Case Study

Assam

14
National Textile Workers’ Union v. P.R. Ramakrishnan, AIR 1983 SC 75
Assam, which is claiming to be affected the most by this Act ,already had a brutal past with its’
immigrants .Illegal immigrant Act was applicable only to Assam to deal with the illegal
immigrants, whereas elsewhere the Foreign Act, 1946 was applied. The Foreigners Act, 1946
defines a foreigner as a person who is not a citizen of India15. Section 9 of the Act states that,
where the nationality of a person is not evident as per preceding section 8, the onus of proving
whether a person is a foreigner or not, shall lie upon such person. However, under the Illegal
Migrants (Determination by Tribunal ) (IMDT) Act, the burden of proving the citizenship or
otherwise rested on the accuser and the police, not the accused. This was a major departure from
the provisions of the Foreigners Act, 1946. The accuser must reside within a 3 km radius of the
accused, fill out a complaint form (a maximum of ten per accuser is allowed) and pay a fee of ten
Rupees. If a suspected illegal migrant is thus successfully accused, he is required by the Act to
simply produce a ration card to prove his Indian citizenship. And if a case made it past these
requirements, a system of tribunals made up of retired judges would finally decide on
deportation based on the facts. The act also provided that 'if the application is found frivolous or
vexatious' the Central Government may not accept it. It excluded the migrants who entered India
before March 25, 1971, from the illegal-migration accusation. And for post-1971 migrants too,
the procedures for deporting were tough. The Act was challenged by Sarbananda Sonewall in
courts16. In 2005 a three-judge Bench of the Supreme Court held that the Illegal Migrants
(Determination by Tribunals) Act, 1983 and rules "has created the biggest hurdle and is the main
impediment or barrier in the identification and deportation of illegal migrants" and struck down
the Act. The court also observed "(the conviction rate under the IMDT act) comes to less than
half percent of the cases initiated...(the IMDT Act) is coming to the advantage of such illegal
migrants as any proceedings initiated against them almost entirely ends in their favor, enables
them to have a document having official sanctity to the effect that they are not illegal migrants."

Sections 2 and 4 of The Immigrant( expulsion from Assam) Act 1950, also have a bearing on
some of the issues.

Section 2 - Power to order the expulsion of certain immigrants.-

15
The Foreigners Act, Ss. 9, (1946)
16
Sarbananda Sonowal vs Union Of India & Anr 2000 AIR 131
If the Central Government is of opinion that any person or class of persons, having been
ordinarily resident in any place outside India, has or have, whether before or after the
commencement of this Act, come into Assam and that the stay of such person or class of persons
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, the Central Government may by order-

(a) direct such person or class of persons to remove himself or themselves from India or Assam
within such time and by such route as may be specified in the order; and

(b) give such further directions in regard to his or their removal from India or Assam as it may
consider necessary or expedient;

Provided that nothing in this section shall apply to any person who on account of civil
disturbances or the fear of such disturbances in any area now forming part of Pakistan has been
displaced from or has left his place of residence in such area and who has been subsequently
residing in Assam

Section 4.- Power to give effect orders-

Any authority empowered by or in pursuance of the provisions of this Act to exercise any power
may, in addition to any other action expressly provided for in this Act, take or cause to be taken
such steps, and use or cause to be used such force, as may in its opinion be reasonably necessary
for the effective exercise of such power.

"I speak of the domicile of origin rather than of birth. I find no authority which gives for the
purpose of succession any effect to the place of birth. If the son of an Englishman is born upon a
journey, his domicile will follow that of his father which may either be co-extensive with a
single legal system or may unite several systems under its own sovereignty”- The Supreme Court
of India.

In the case of Assam Sanmilita Mahasangha & Ors. vs Union of India & Ors,17 the Honourable
Court observed that illegal migration has resulted in “periodic clashes between the citizens of
India and migrants”, leading to loss of life and property, and thereby violating the constitutional
rights of the Assamese people. It reaffirmed that illegal migration had eroded the cultural way of
17
Supra
life of the Assamese people as they were being swamped by the illegal migrants who had no
right to be in India.

Loss of tribal land was an important consequence of the illegal migrant influx, as the immigrants
were often rehabilitated in the tribal areas and also encroached upon tribal lands. The Dhebar
Commission Report of 1961 had noted that the influx of displaced persons into Tripura(a state in
India facing the same problem of immigration) had adversely affected tribals and accelerated the
land problem . Here, it is important to note the differing approaches of the Left and the Congress,
which was in power at the Center and the State, never let a reconciling situation to be taken place
in the State. Dasarath Deb, who was also a Member of Parliament, suggested to Prime Minister
Jawaharlal Nehru that: “some area or areas of Tripura shall have to be set aside for the tribals
alone, and no other person belonging to the non-tribal communities should be allowed to settle
there.”

F. Violation of Right to Equality as under Article 14 of the Constitution

This Bill, if made to pass, would result in a dual violation of the equality rights as enshrined in
the Constitution of India. Firstly, it would treat those States in India those who have more raged
border security problems and are troubled by infiltration, like those of Assam, Tripura, West
Bengal etc in an adverse manner compared to other States of India. It is must be made clear on
this account that the citizens in such particular States are more often than not subject to more
cultural and economic crisis than other parts of the country from illegal immigration, thus, it can
never be claimed that this Bill is going to have an uniform effect on the entire nation. It is prima
facie discriminatory and are against the interest of such states.

Secondly, it is prima facie discriminatory to the illegal immigrants as well. In Louis De Raedt v.
Union of India18 the Supreme Court held that even people residing in the country without
legitimate documents are entitled to the protection of their fundamental rights. In Malvika
Karelkar v. Union of India19, the Supreme Court allowed the refugees to stay back and applied
the doctrines of International Law and UNHCR , granting them certain fundamental rights, with

18
(1991) 3 SCC 554
19
(2005) 4 SCC 446
Right to Equality being one of them. Thus, this Bill is prima facie discriminatory and tends to
discriminate such people solely based on their religious identities. This is a very alarming
situation in the country, and must be retaliated with the greatest efforts possible.

G. Conclusion and Suggestions

The foregoing discussion makes it amply clear that the Government of India is trying to confer
citizenship on foreigners on the basis of religious pretext. The proposed amendment is
unprecedented. Till date, religion has never been identified in the citizenship law as a ground for
distinguishing between citizens and non-citizens. It is against the principle of secularism. If India
is really interested to remain secular then this Bill shall be modified in the present objectives.
Similarly in order to avoid the burden of foreigners on the limited resources of our country,
better it would be to avoid such amendments. But if this Bill is truly a humanitarian move, then
the benefits under the bill should be conferred to all religious communities. The Government of
India should not forget the philosophy of India and Indian saints and sages that the principle of
Vasudev Kutumbkam which means that the entire world should be treated like a family . It
leaves no scope for discrimination to the Government that too purely based on religious grounds
and by the way India is known for its secular approach in the world and this bill will not only put
a bad impression about our secular approach but also question our preamble which say India is a
secular country .

In conclusion, it might be submitted that citizenship is a virtue conferred by the Constitution of

India itself. Proper determinacy of citizenship is one of the primary tasks of any Government, as
it determines the link between the State and its’ people. Furthermore, any steps taken by the
Government to help the larger international community, in distress and to extend its borders are
to be appreciated, but they must not be arbitrary in nature. The Government may afford to take
such steps only after securing the primary cultural and economic rights of the citizens. Thus, the
Government either may stop this act of extending its’ borders or , if it is willing to do such an
act, which is no doubt a humanitarian effort, must do it on an uniform basis. Any discrimination
based on religious is not only against the international law doctrines and principles of natural
justice, but is also against the Suprema Lex of the country i.e. the Constitution of India.