The concept of an Indian citizen, as envisioned under the Indian constitution, has been undergoing a subtle transformation for several decades. This shift has been underway since the 1980s, and its culmination in the Citizenship (Amendment) Bill, 2016 will likely result in a substantive transformation.
The Citizenship (Amendment) Bill, 2016 was introduced in parliament in July 2016 and is presently under consideration by a joint parliamentary committee. The 2016 bill is the latest in a series of amendments to the Citizenship Act that seeks to legislate a majoritarian and exclusionary conception of citizenship, replacing the existing—however weakened—pluralist and inclusive conception.
Constitutions do not ordinarily define the source and basis of citizenship. In the aftermath of partition and the gigantic scale of the movement of people across the newly-defined borders of India and Pakistan, the Constituent Assembly defined the term in India in Articles 5–11 of the nation’s Constitution only for the immediate purpose of deciding the citizenship of those moving across these borders. The task of formulating a law of citizenship for ordinary times was left to the Indian parliament, which passed the Citizenship Act in 1955.
Both before and after the Partition, the members of the Constituent Assembly had heated exchanges on the subject of citizenship in India. The central question in this debate was on whether the basis of Indian citizenship should be an individual’s birth on the soil of the country—known as jus solicitizenship—or an individual’s descent, or the citizenship of their parents—jus sanguinis citizenship. The Assembly settled on the first as a form of “enlightened, modern, civilized” and democratic citizenship, as opposed to the second, which it said was “an idea of racial citizenship.” This was a progressive decision, in keeping with the inclusive character of the movement for freedom. The Citizenship Act incorporated both these conceptions, providing for citizenship by birth as well as descent. It defines an illegal immigrant as a foreigner who enters India without valid travel documents, or a foreigner who remains in India beyond the time permitted as per their travel documents.
The proposed amendment is a deviation from the conception of citizenship in India delineated in the Citizenship Act, 1955. It smuggles religious difference into a law that is presently religion-neutral. The amendment bill provides that Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan are deemed to be “persons belonging to minority communities” and “shall not be treated as illegal migrants for purposes of this Act.” It further provides that they shall be eligible for citizenship after six years of residence in India as opposed to the earlier requirement of 12 years. In other words, persons belonging to six religions from three countries are no longer to be described as illegal migrants and are therefore eligible for fast-tracked citizenship. The silent implication is that Muslims from these countries would continue to be treated as illegal immigrants and would not be eligible for the same relaxation.
The exclusion of Muslims is ostensibly on the grounds that they do not constitute a minority community in these three countries. What explains India’s sudden concern for the minorities of neighbouring countries when we show little enough concern for our own? The Statement of Objects and Reasons, a document appended to the bill that provides the reasons and context behind the passing of any bill, offers no rationale for the amendment other than stating that these people are denied the “opportunities and advantages” that only citizens of India can presently enjoy.
Two other amendments introduced over the last two years are relevant to attempt to understand India’s sudden concern. In September 2015, the Passport (Entry into India) Rules, 1950 and the Orders under the Foreigners Act, 1946, were amended to exempt these very same religious groups from the requirement of holding valid passports and visas, and consequently exempt them from being prosecuted or deported. Both these amendments refer to “persons belonging to minority communities in Bangladesh and Pakistan”—Afghanistan was not included here—“who were compelled to seek shelter in India due to religious persecution or fear of religious persecution.”
If indeed the official concern is about religious persecution, it is not at all clear why India did not extend similar hospitality to Ahmadi Muslims or Rohingya Muslims, both highly persecuted sects in Pakistan and Myanmar respectively. Some observers have even wondered whether India is contemplating the adoption of a policy similar to the Law of Return in Israel, which permits Jews from anywhere in the world to return to Israel and settle there.
The amendment consolidates a trend that began with the Citizenship (Amendment) Bill, 1985, which amended the provisions pertaining to naturalisation. This gave legal expression to the Assam Accord, between the Rajiv Gandhi government and the Assamese students’ organisations that had led the agitation against the enfranchisement of migrants from Bangladesh. The students’ agitation had led to the Nellie Massacre, during the 1983 elections, following which the accord was signed accord was entered into in 1985. The enfranchisement of the migrants was widely attributed to the Congress. The common perception was that all Bangladeshi immigrants were Muslims, and the Congress party was seen as the prime beneficiary of their votes. The accord put in place measures for the detection of foreigners and their deletion from the electoral rolls.
The 1985 amendment to the Citizenship Act that followed the accord introduced a new section titled “Special provisions as to citizenship of persons covered by the Assam Accord.” Seeking to allay anxieties about migrants who had come in from Bangladesh after the 1971 war, this section created categories of eligibility for citizenship based on the year in which a person had migrated to India. All those who came before 1966 were declared citizens; those who came between 1966-1971 were struck off the electoral rolls and asked to wait ten years before applying for citizenship; and those who came after 1971 were simply deemed to be illegal immigrants. These provisions were a response to the political situation in Assam—where the anti-migrant sentiment was at a fever pitch—but already contained the seeds of the politicisation and incipient communalisation of the issue of migrants.
The gradual dilution of the principle of jus soli and the increasing recognition of elements of jus sanguinis—dependent on religious identity—is further apparent in two developments in 2004. The first was an amendment to the Citizenship Act which covertly introduced a religion-based exception to the principle of citizenship by birth. Most of the migrants from Bangladesh, against whose arrival there was so much political ferment in Assam, were Muslims. The amendment undercut the jus soli basis of citizenship, as it stated that even if born on Indian soil, a person who had one parent who was an illegal migrant at the time of her or his birth, would not be eligible for citizenship by birth.
The second development was an amendment to the Citizenship Rules which excluded “minority Hindus with Pakistani citizenship” from the definition of illegal immigrants. Until now, the religious identity of the migrants had only been implicitly signaled in the Citizenship Act. It was never explicitly mentioned. The 2004 amendment to the Citizenship Rules dispensed with this coyness. The language of “illegal migrants” was dropped for these migrants who were now officially described as “minority Hindus with Pakistan citizenship.” Both these, one implicitly and the other explicitly, display how religious identity has been gaining ground as the basis of legal citizenship.
There is good reason to be concerned about the consequences of the proposed 2016 amendment. The political objective of the two amendments in September 2015 and the proposed amendment seems to be to give special recognition to religious identity in determining citizenship. The bill does this by definitively excluding Muslim migrants from eligibility for citizenship. It simultaneously appears to affirm the privileged status of Hindus as true citizens of India.
This is not the only political purpose the amendment may be fulfilling. In the run-up to the Assembly elections in Assam, conducted in early 2016, the Bharatiya Janata Party had made an electoral promise to “free” the state from illegal Bangladeshi migrants—it did not refer to a specific religion—by evicting and deporting them. Along with this, it also promised to give Indian citizenship to all Bangladeshi Hindu immigrants if it won the election. This amendment would fulfil that promise. In February 2016, the BJP refugee cell began to step up its demand for expediting amendments to the Citizenship Act in favour of Hindu refugees.
On the other hand, many in Assam are angered by the proposed amendment because they view it as a violation of the Assam Accord, which treated all those who entered the state after 1971 as illegal immigrants. As a result, members of groups such as the All Assam Students’ Union believe the amendment defeats the purpose of the accord and opens the floodgates to more in-migration, and consequently increases claims on diminishing employment opportunities. The transformation of Hindu migrants, hitherto perceived as illegal encroachers, into legitimate citizens is making even a few leaders amongst the BJP’s own allies, such as the AGP, uncomfortable.
The more significant long-term damage of this amendment is that it appears to contravene constitutional provisions, which are neutral as to the identity of citizens. The right to equality in Article 14, for instance, clearly states that “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” This is not a right that is dependent upon such a person being an Indian citizen, it is available even to foreigners who happen to be within the territory of India. As such, differential treatment to individuals on the basis of their religious faith would appear to be in contravention of the right to equality.
The construction of Hindus as the natural and normal citizens of India, and of Muslims as somehow lesser citizens, is not just a debasement of the idea of India that joined 14 million people together in their struggle against imperial rule, it is also a transgression of the universalist and inclusive conception of citizenship contained in the Indian Constitution, especially in the chapter on Fundamental Rights. The only departures from a universalist conception of equal citizenship in the Constitution are the special provisions made for historically disadvantaged groups such as the Scheduled Castes and Scheduled Tribes, and for guaranteeing the cultural rights of minority communities. The Citizenship (Amendment) Bill, 2016 threatens this foundation of India’s plural polity, where every citizen, regardless of her religious identity, is equal to every other in her enjoyment of the rights the Constitution confers on her.
Niraja Gopal Jayal is Professor at the Centre for the Study of Law and Governance at Jawaharlal Nehru University. She is the author of Citizenship and Its Discontents: An Indian History; Representing India: Ethnic Diversity and the Governance of Public Institutions; and Democracy and the State: Welfare, Secularism and Development in Contemporary India.