Assamese Politics: Redefining the Contours of Citizenship Laws in India

by | Jul 14, 2020 | Citizenship, Politics | 0 comments

INTRODUCTION

Citizenship, as defined by Webster Dictionary, means “the position or status of being a citizen”. Webster dictionary defines citizen as “an inhabitant of a city or town especially one entitled to rights and privileges of a freeman”. From the above discussion, any person belonging to a particular State, who enjoys the rights and privileges and subjects himself to the authority of the State is said to hold the citizenship of the said State. Citizenship is often used synonymously with nationalism and domicile. However there is a difference between all three. Citizenship is somewhat a domestic concept and nationalism is an international model. Nationalism provides civil rights which are governed by international law whereas citizenship talks about civic rights which come under municipal law.[1] Domicile is essentially the legal relationship between an individual and a territory with a distinctive legal system which invokes that system as their personal law.

HISTORICAL BACKGROUND

Soon after its independence, India witnessed one of the largest human migrations in recorded history due to partition which displaced at least 14 million people, out of which approximately 1 million are said to have been killed or died in violence which erupted in the aftermath of the partition. Though people who migrated between India and Pakistan did not lose their citizenship but they were forced to live the life of a refugee in the camps. The condition worsened after the Indo-Pakistan war of 1948 broke out and Indian cities were filled with refugees from Pakistan, especially the big cities like Delhi. This presented a great challenge before the Constituent Assembly to provide a solution to the complicated question of citizenship of people migrating between India and Pakistan and decide who would and who would not be a citizen.
During the time of the framing of the Constitution, there was a strong debate in Constituent Assembly about which concept of citizenship the new Indian State would commit to. After many discussions the founders of the Constitution decided that the basis for granting citizenship will be “associational”, as they wanted to adopt a concept of citizenship that was large enough to accommodate everyone who was born on Indian Territory without any distinction on the basis of religion, caste or ideology. [2]The definition of citizenship in Article 5 is at the commencement of the Constitution and thus the provisions related to citizenship were inadequate in addressing the problems of citizenship from the time Constitution is enacted till Parliament makes an exhaustive law and a state of legal vacuum as to citizenship existed between these two periods.[3] In the Constituent Assembly, Dr. Ambedkar duly noted that Part II of the Constitution was mainly included to address this issue of citizenship at the time of commencement of the Constitution and not to establish any permanent law for citizenship. In exercise of power given under Article 11, the Parliament has enacted the Indian Citizenship Act, 1955 which provides for the acquisition and loss of Indian citizenship after the commencement of the Constitution. From then this Act has been amended four times so far by the Citizenship (Amendment) Acts of 1986, 1992, 2003 and 2005.
India is neither a signatory to the 1951 Refugees’ Convention nor the 1967 protocol then also the country has served as a home to the largest refugee population in South Asia. There are sizeable groups of refugees in India, who number in millions, like Sri Lankan Tamils, Afghans, Rohingyas, Chakma and Hajong communities etc. but none had such an effect on Indian Politics as the influx of migrants from East Pakistan (now Bangladesh) to India. Unlike others, this migration in the North- Eastern States is a sensitive and emotional issue for local population which had serious cultural and social demographical implication since this has led to the sudden spike in the population of the States bordering Bangladesh. The majority local population in these areas feared to become minority in future and also it made difficult for the government to ensure food security. This became an issue for the political parties to garner votes in the elections till date.

THE ASSAM MOVEMENT

The problem in Assam originated way back in 1826 when the Burmese ceded Assam to the British thus bringing to an end the Ahom rule in Assam, which was annexed and placed as an administrative unit of the Bengal Province by the British. It started the trend of migration from Bengal to Assam which gained momentum in the 20th century by the support of British who favoured the migration in the region, instead of checking it, as the migrants formed cheap labour for the tea and oil industry. The migration accelerated after the partition and formation of East Pakistan in 1947. Huge population of Bengali Hindus were forcibly compelled to leave East Pakistan and migrate to West Bengal and the North- Eastern States mainly in Assam. The riots of 1964 and the India-Pakistan War of 1965 and 1971 further resulted in the out-migration of a large number of migrants from East Pakistan. Further, the economic conditions of East Pakistan (Bangladesh) had always ensured the steady migration between the borders in search of a better life.[4]

There are no provisions to deal with refugees in the Constitution and all rights were conferred to the Parliament though the Foreigners Act of 1946 conferred powers upon the government to prohibit entry of foreigners, among other things. The Parliament tried to handle the situation by passing a special law for Assam titled the Migrants (Expulsion from Assam) Act, 1950 and under this act Indian Government passed the Foreigners Tribunal Order of 1964 which authorised it to establish Tribunals to determine questions of nationality, in accordance with the provisions of the Foreigners Act. Till then, these along with the Citizenship Act, 1955 were the governing laws related to the Refugees.[5]
But the issues of migration continued to cause conflict in Assam because it was perceived that many of “illegal migrants” were being put on voter list by political parties in an attempt to create faithful vote banks. This led to Assam Agitation, a state-wide student movement from 1979 to 1985 which came to an end with the signing of the Assam Accord between the Government of India and the leaders of the movement. The main demand of the movement was detection and expulsion of foreigners in the State. The Accord provided for two separate cut-off dates for regularisation of migrants and divided the migrants in three groups:

  1. those who came into the State before 1966;
  2. those who came into the State between 1966 and 25th March, 1971 (the official date of the commencement of the Bangladesh War); and
  3. those who came into the State after 1971.

The first group was to be regularised and the second group was to be taken off the electoral rolls, and regularised after ten years. The third group was to be detected and expelled.  The Assam Accord also demanded for updating of the National Register of Citizens (NRC), 1951 to include all the Assam inhabitants and their descendants on or before March 25, 1971 and that the detection of ‘foreign nationals’ should be done on the basis of the National Register of Citizens (1951), which was not a public document, and the voters’ list of 1952.

This led to the introduction of section 6A by Citizenship (Amendment) Act of 1986 which divided “illegal” migrants of Indian origin within those three categories. The Parliament had also passed the Illegal Migrants (Determination by Tribunals Act) of 1983 which authorised the Government to set up Tribunals for the purposes of determining whether migrants were illegal. Under the Act, the Government framed the Illegal Migrant Rules of 1984. This rule along with IMDT act and section 6A formed the statutory regime related to citizenship and were applicable to Assam only.[6]
However, the main focus all such movements, till today, is on the Bangladeshis though they were estimated to be only around 40 per cent of the migrants, and ignore the fact that majority of the migrants in the region are the Hindi speaking Hindus from Gangetic  plains or of Nepali origin. The refugee population today is estimated to be around 10 million persons, out of which 6.7 million are believed to be Hindus who spread over North-East, West Bengal, and Bihar.[7] The movement which started as a secular movement of all the Assamese soon turned into a communal movement directed mainly against Muslims due to political narratives.

CONSTITUTIONAL MORALITY AND CITIZENSHIP

As Assam politics gathered more strength, we see a gradual transition in the nature of citizenship laws in India. The transition soon shifted from Constitutional morality towards political narratives.

In the Constituent Assembly debates Dr. B.R. Ambedkar explains the scope of Constitutional morality by quoting the Greek historian, George Grote, and said “…by Constitutional morality Grote meant “paramount reverence” for the forms of the Constitution enforcing obedience to authority acting under and within these forms, yet combined with the habit of open speech, of action subject only to definite legal control and unrestrained censure of those very authorities as to all their public acts combined too with a perfect confidence in the bosom of every citizen  amidst the bitterness of party contests that the forms of the Constitution will not be less sacred in the eyes of his opponent than in his own”.[8] It is apparent that Grote was not speaking about the actual word Constitution but rather the idea that it encapsulates.

Understanding the vision of the Constitution is of paramount importance because of the reason that although people may not have participated in the framing of the Constitution, the Preamble professes that the Constitution is adopted by the people themselves. However personification of the “Will of the People” presents the suspicion of it being as another tenet of Constitutional morality.[9] Constitutional morality cannot allow the will of the people or alleged will of the people to eclipse the principle of the Constitution. Hence any organ of the State who contends to manifest will of the people cannot vest itself of this undeserved extraordinary power. Devotion and fidelity to Constitutional morality must not be equated with the popular sentiment prevalent at a particular point of time.[10]

Constitutional morality serves as the tenet of Constitutionalism. The essence of Constitutionalism that gives immutable feature and serves as a moral compass in the implementation and interpretation of the Constitution is the principle of Constitutional Morality. Preservations of the basic values of the Constitution and their modification to suit the present societal requirements define the purpose of Constitutional morality. The Realization of these values of equality, liberty, justice, fraternity and secularism requires existence of commitment to this vision. Constitutional morality determines the mental attitude towards individuals and issues by the text and spirit of the Constitution. These principles can be viewed as imposing an obligation on individuals and institutions to ensure that the Constitutional system operates in a coherent way, consistent with its basic principles and objectives.[11] The framers of the Constitution expected that the citizens of the country would conduct themselves in a way that would further the objective of cause of Constitutional morality.

A simplistic approach to Constitutional Morality would be to assume that principles of fundamental rights such as the right to life and liberty, the right against discrimination and the freedom of speech are just some examples of Constitutional morality that had been drafted into the Constitution. One such principle embodied in our Constitution is the idea of secularism. [12]  India, in particular, is such a typical pluralist society – a model of unity in the mosaic of diversities.[13] Notwithstanding the fact that word “secular” and “socialist” were added by the 42nd amendment, the principle of secularism wax very much embedded in our Constitutional philosophy. The word “secular” has advisedly not been defined presumably because it is very elastic term not capable of a precise definition and perhaps best left undefined. What was implicit in the Constitution was made explicit. Positive secularism[14] separates the religious faith personal to man and limited to material, temporal aspects of human life. Morality under positive secularism is a pervasive force in favour of human freedom or secular living. Constitutional morality is thus the guiding spirit to achieve the transformation which, above all, the Constitution seeks to achieve. Constitutional morality is a pursuit of this responsive participation.

From the above discussion we know that Constitutional morality is an essential tenet of Constitutionalism which, in its folds, withholds the principle of the Constitution. For our purpose principle of equality and secularism are most important aspect of this morality and they also are the part of basic structure of the Constitution.

THE CHANGING CONTOURS OF CITIZENSHIP LAWS

The Constitutional provisions pertaining to citizenship made inclusive approach to citizenship and emphasised on people’s choice. When the Citizenship act 1955 was enacted, it threw up “luminal”, “transitional” and “awkward categories” of aspiring citizens whose legal resolutions drew attention to the ethno-cultural and gendered basis of citizenship in India.[15] Determination of citizenship was influenced by the ways in which the eastern and western borders were construed and hence the citizenship emerging from them remained ambivalent. The legal resolution of the citizenship conundrum relating to large numbers of people moving across, what had becomeossified borders, was taking place within a political and social context where a Muslim in India was an anachronism and whose loyalties were seen to be suspected.

The 1986 amendment manifested a politics of policy making, marking out of ethno-spaces, and the setting in motion of a process whereby citizenship’s association with descent is affirmed. The amendment in 1986 in citizenship laws pertained to the question was illegal migrant. The IMDT Act which accompanied such modification in citizenship laws tried to propel the Assam politics onto the national stage and ultimately manifesting the demand of the Assamese population in the form of modified citizenship laws. The amendment gave legal recognition to “different yet equal” or differentiated citizenship.[16] However this exception for Assam was opened within the four folds of universal citizenship without violating the principle of equality. The IMDT act placed the burden of proving citizenship on the State. However in 2005 Supreme Court in held some of the provisions of this IMDT act as unconstitutional.[17] Justice Mathur held that the IMDT Act had resulted in the detection of foreigners far lesser than their actual numbers demanded and the Centre was failing in its constitutional duty to protect its citizens against external aggression and internal disturbance.[18] The Tribunals under the IMDT ceased to function, and the statutory regime reverted to Section 6A of the Citizenship Act, and the Foreigners Act and the Foreigners Tribunal Order. It again shifted the burden of proving citizenship on individuals. Surprisingly the judges marked out the migrants not only on account of being illegal but also on the count of being a Muslim depicting it as a threat to the demographic profile of the country and national security. This clearly manifests the political-ideological context of the period. Judges discussed the demographic shift not in terms of the linguist disparity as was done earlier but rather on the basis of religious differences.

The judgment shows the result of the dominant framework of nationalism. This nationalism depicted the popular morality and casted a doubt on everyone who was not in line with its ideals. The Bengali speaking Muslims in Assam were the most affected. This new concept of nationalism coupled with new State practices and institutional changes during the 1990s gained vicious nature. Thousands of Muslims were deported to Bangladesh everyday from parts of the country on the basis of their religious identification.  After this amendment, the citizenship has laid down the chronological boundaries of belonging almost imperceptible.

The 2003 amendment again shifted the ideological basis of citizenship laws. The late twentieth century witnessed drastic changes at international level, in particular, globalisation of economy, which witnessed the unprecedented movement of population. This led to the nations to reinforce their boundaries, restricting the flow of foreigners and migrants. The State asserted its sovereignty in the garb of this citizenship crisis. This threat generated the anxieties around the weakening bonds of community identity and social solidarity. In early 21st century the religious forces were rampant around the parts of India. This led to the moulding of citizenship laws to suit the demands of this “majority” ignoring the Constitutional morality of our Constitution. The amendments of 2003 and 2005 gave expression to this unequal exclusion and imparting religious character to the Indian State. The religious-political factors dominated most of the legislation in early 21st century and ultimately they found their expression in the form of citizenship amendment bill 2016 which can be said to be the culmination of the development from 1986 onwards.

The citizenship amendment bill 2016 is introduced to update the current citizenship act, 1955 and provide for the acquisition and determination of Indian citizenship for a certain category of illegal migrants.[19] The bill prima facie proposes three changes-

  1. persons belonging to minority communities, that is, Hindus, Jains, Sikhs, Buddhists, Parsis and Christians from Afghanistan, Bangladesh, and Pakistan shall not be treated as illegal migrants,
  2. the third schedule of the 1955 Act is proposed to be amended to decrease the residence requirement from 11 years to six years and
  3. OCI cards holders are susceptible to lose their status if they violate any laws of the country.[20]

The most glaring and controversial provision of the bill is the criteria provided for granting citizenship status to the illegal migrants. With no explanation given for this clause it prima facie appears to be arbitrary. The bill discriminates on the basis of religion and the place of origin of these migrants. Article 14 of the Constitution which talks about equality is based upon the principle of reasonableness. The twin test to check the reasonable legislative classification are-

  1. the classification must be founded on intelligent differentia and,
  2. the differentia must have a rational relation with the object sought to be achieved.[21]

The classification in this bill discriminates between the illegal migrants on the basis of religion violating the first test. It also discriminates on the basis of the place of origin of these illegal migrants.[22] The central government has insisted that this law is necessary to protect “persecuted minorities” in India’s international neighbourhood; this object is not in consonance with the classification in the bill.[23]

This bill in itself won’t stand the Constitutional test as it is against the basic principle of secularism.[24] As we have seen that secularism forms a part of the Constitutional morality and is a basic structure of the Constitution. The bill intentionally tries to exclude illegal migrants belonging to particular religion without any sufficient reason or cause. There appears to be an attempt made by this bill to attribute a religious character to the Indian nationality.

CONCLUSION

The proposed amendment bill is facing a wide criticism across north-eastern regions. The bill is against the very identity and survival of the indigenous people of the region as it will drastically affect the demographic setup of these States. The bill places residents who may have illegally migrated from other countries like Sri Lanka, Nepal, China, and Myanmar at a disadvantage. It would be immaterial if their religious identity and the reasons for migration were the same. It must be noted that the protection of equality— equality before law and equal protection of the law—under Article 14 of the Constitution extends to all persons in India, not just citizens. Hence it does not explain the omissions of Baha’is, Ahmadis, Sufis, Shias, atheists, etc—minorities that face religious persecution in the enlisted countries, or indeed Tamils from Sri Lanka; or why a Buddhist who illegally migrated from Pakistan owing to religious persecution would qualify for citizenship but a Buddhist who fled China for the same reason would not; or on what empirical or normative base the communities enlisted in the bill are “more likely to stay permanently” in India than other religious groups?[25]. The citizenship amendment bill, in this sense, goes against the basic tenets of our constitution and is bound to fail the reasonableness and constitutional morality test, if passed and presented before the court. However, the government is bestowed with the responsibility of dealing with the citizenship issues so it has to be seen whether the Judiciary will take cognisance of such unfortunate legislation. This is complicated further by the fact that the people whose rights are violated are still not citizen of India. The fate of millions of citizens and non-citizens of India hang in balance. The center’s enthusiasm to treat certain migrant communities as prodigal sons and daughters is thus difficult to understand. In any case, the signal the bill sends is clear— Muslims outside the country, even if persecuted, do not belong in India.

Authors: Akhand Pratap Singh & Shashank Pandey

Preferred Citation: Pandey, Shashank; Singh, A. K., “Assamese Politics: Redefining the Contours og Citizenship Laws in India”, The Law Culture (2020)

Url: https://thelawculture.in/assamese-politics-redefining-the-contours-of-citizenship-laws-in-india/

 


[1] Weiss, P (2006): “Nationality and Statelessness in International Law,” Oppenheim’s International Law, Vol 1, pp 642-644

[2] Gautam Bhatia,  ‘ Challenge the NDA’s citizenship bill’ Hindustan Times (2019) <https://www.hindustantimes.com/analysis/challenge-the-nda-s-citizenship-bill/story-W1y2sGVtBxvo9lQABZOnZI.html > accessed 20 January 2019

[3]Anupama Roy, Mapping Citizenship in India, (first published 2010, Oxford University Press).

[4] K. V. Thomas,  ‘ The Politics of Citizenship: The National Register for Citizens (NRC) in Assam’ The Hindu Centre for Politics and Public Policy (2018) <https://www.thehinducentre.com/the-arena/current-issues/article25142441.ece#One> accessed 20 January 2019

[5] Gautam Bhatia, ‘The Constitutional Challenge to S. 6A of the Citizenship Act (Assam Accord): A Primer ‘ Indian Constitutional Law and Philosophy (2017) < https://indconlawphil.wordpress.com/2017/05/07/the-constitutional-challenge-to-s-6a-of-the-citizenship-act-assam-accord-a-primer> accessed 20 January 2019

[6] Ibid

[7] (n,6)

[8] Constituent Assembly Debates, Vol. 7,  P.38 (4-11-1948)

[9] The manifestation of this would lead to usurpation of power or overarching of the fundamental provisions of the constitution.[10] ibid

[11] Bruce P Fronhen ; George W. Carey, Constitutional morality and the Rule of Law, 26 J.L. & Pol. 497.

[12] Dr Radhakrishnan talking about secularism said “When India is said to be a secular State, it does not mean that we reject reality of an unseen spirit or the relevance of religion to life or that we exalt irreligion. It does not mean that secularism itself becomes a positive religion or that the State assumes divine prerogatives. Though faith in the Supreme is the basic principle of the Indian tradition, the Indian State will not identify itself with or be controlled by any particular religion. We hold that no one religion should be given preferential status, or unique distinction, that no one religion should be accorded special privileges in national life or international relations for that would be a violation of the basic principles of democracy and contrary to the best interests of religion and Government. This view of religious impartiality, of comprehension and forbearance, has a prophetic role to play within the national and international life. No group of citizens shall arrogate to itself rights and privileges which it denies to others. No person should suffer any form of disability or discrimination because of his religion but all alike should be free to share to the fullest degree in the common life. This is the basic principle involved in the separation of Church and State.” (emphasis supplied) (Recovery of Faith, New York, Harper Brothers 1955, p. 202)

[13] Venkatachaliah,M. N. “Common Law, Humanism and Constitutions”, Constitutionalism and Constitutional Pluralism, Ed. P. Ishwara Bhat. Gurgaon: Lexis Nexis, (2013) 53-64.

[14] Secularism in the Indian context bears positive and affirmative emphasis. Indian State opted the concept of secularism operating as a bridge to cross over from tradition to modernity. The Indian State opted to this path for universal tolerance due to its historical and cultural background multi religious faiths.

[15] (n,5)

[16] By introducing sixth category of citizenship which was to be exclusively applied to State of Assam

[17] Sarbananda Sonowal vs UOI (2005) 5 SCC 665

[18] Article 355 of the Indian constitution

[19]Apurva Thakur, ‘Why constitution amendment bill goes against the basic tenets of the constitution’, 31 March, 2018, Vol. 53. Issue No. 13, Economic and Political Weekly.

[20] Citizenship (Amendment) Bill, 2016

[21] Twin test expressed by J Das in State of west Bengal Anwar Ali Sarkar, AIR 1952 SC 75.

[22] Muslim communities from Afghanistan, Pakistan, and Bangladesh have suffered and continue to suffer from religious persecution. Persecution against the Ahmadiyas is both socially pervasive and State-backed in Pakistan. Shia Muslim communities, particularly the Hazaras, have been subjected to severe persecution in Afghanistan because of their religious beliefs.

[23] M Mohsin Alam Bhat, ‘The Constitutional case against Citizenship Amendment  Bill 2019, Vol 54 Issue no 3, Economic and Political Weekly

[24] SR Bommai v union of India (1994) 3 SCC 1

[25] (n,26)

 

 

Shashank Pandey

Shashank Pandey

Author Profile

Shanshank is one of the founders of The Law Culture. 

He is a final year student at RMNLU. He is primarily interested in Intellectual Property Rights, Labour Laws, Arbitration and Constitutional Law.

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