CITIZENSHIP IN INDIA - A COMMUNAL TALE

I :The Partition and Citizenship:

It was August of 1949. The air in the Constituent Assembly was stuffy and loud and fervent voices rang out for all to hear. The articles currently at the table were Articles 5, 5 - A and 5 - AA, pieces of legislation that would soon become an integral part of one of the most important documents in the world.

To understand the importance of those three aforementioned articles, one needs to look at the history of Indian Independence and specifically, the partition. The Muslim League had successfully justified its position of the Indian National Congress not representing the Muslim population of India and thus, emphasized the importance of a separate Muslim state - to be named ‘Pakistan’. The crown had understood and agreed with the sentiment (even though they were partly to be blamed for the creation of said sentiment) and the Indian Independence Act of 1947 was given royal assent. Thus, the two self - governing dominions of India and Pakistan legally came to be on the midnight of August 15, 1947.

A nation, previously with a vast and diverse distribution of cultures and people, being divided essentially on the basis of religion, had added much fuel to the fire of communal hate that had existed in India ever since the religion of Islam first reached the sub - continent. The ensuing exodus displaced close to twenty million people with close to two million dead. Those were the images in the minds of those discussing the three aforementioned articles in the Constituent Assembly.

Since the nation had been split and no provision for citizenship was in place, it was decided that the question of citizenship would be handled by provisions in the Constitution until a satisfactory piece of legislation could be introduced and passed in the Parliament. For this purpose, Article 5 of the soon to be Indian Constitution was drafted. It declared that those who at the time of commencement of the Indian Constitution currently had domicile in India and were: (a) born in the territory of India, or; (b) had one parent who was born in the territory of India, or; (c) residents of India for the last five years would be declared as Citizens of the newly born nation.

Article 5 - A, which would later be titled ‘Article 6’ dealt with the population that had come into India from Pakistan after the partition. It stated that those who had migrated from the territory of Pakistan into India would be deemed to be citizens at the commencement of the Constitution if: (a) they or either of their parents were born in India, or, (b) had migrated into India before 19 July 1948 and had been a resident ever since, or; (c) had migrated into India after 19 July 1948 but had been registered as a citizen by an officer appointed by the Dominion of India for that very purpose. For all provisions within the article to be applicable, the person would have to have been staying in India for the past 6 months.

However, the article that gained the most discussion and showed the truly ugly side of religious divide in India was Article 5 - AA, later titled as ‘Article 7’. It stated that all those who had migrated from India into Pakistan during the partition would no longer be citizens, ‘provided that nothing in this article shall apply to a person who, after having so migrated to the territory now included in Pakistan, had returned to the territory of India under a permit for resettlement or permanent return issued by or under the authority of any law and every such person shall for the purposes of clause (b) of Article 6 be deemed to have migrated to the territory of India after the nineteenth day of July, 1948.’

It was the section in the inverted commas that drew the most debate. You see, it is quite obvious that the group that was most likely to have migrated to Pakistan was the Muslim section of the population. With religious tensions already at a high and the inner hatred of folks becoming more commonplace and accepted, it was of no surprise when words such as, "I do not want to give rights of citizenship to those who so flagrantly dishonoured the integrity of India not so long ago,” spoken by Sardar Bhopinder Singh Man became a dime a dozen in the Assembly.

Even more, subtleties in the Assembly going right down to the wording used to describe different ethnic groups established the outlook towards Muslims. They were traitors and were to be treated as such. This would be a sentiment that would soon be the basis for citizenship in India.

However, after much scrutiny, debate and frankly disgusting speeches, we reached the forms in which Article 5,6 and 7 are currently enshrined in the Indian Constitution and soon the next chapter of citizenship began.

II: The Citizenship Act:

The original Citizenship Act of 1955 worked on the ‘jus soli’ or birth - based principle. It stated in the ‘By Birth’ section that those born in India after 26th January 1950 were to be declared as citizens of India, despite their parents’ nationalities.

It also stated in the ‘By naturalisation’ section of the act that a person could acquire citizenship by naturalisation if they were a resident of India for twelve years (throughout twelve months preceding the date of application and eleven years in the aggregate) and fulfilled all qualifications in the third schedule of the Citizenship Act.

There are also the ‘By Registration’ and ‘By Descent’ sections in the act. However, since they do not hold as much relevance to the issue at hand as the ‘By Birth’ and ‘By Naturalisation’ section do, they will not be discussed to length.

However, the underlying principle of the Act was undercut by the Nellie Massacre which set a dangerous precedent towards shifting the Citizenship Act from a ‘jus soli’ to a ‘jus sanguinis’ or descent - based principle.

The death of Hiralal Pathwali (1979), a member of the Lok Sabha had necessitated a by - election in the Mangaldoi Constituency of Assam. However, during the election process, it was found that the electorate had grown phenomenally. You see, Assam has had a long and complex history of in - migration beginning in the 19th century, mostly Muslims from Bengal. It witnessed substantial in - migration during the partition which peaked in 1971 and continued steadily thereafter. It was this influx of ‘illegal Bengali Muslim Migrants’ which was blamed for the phenomenal rise in the electorate. The All Assam Students Union (AASU) demanded that the elections be postponed until the names of ‘foreign nationals’ were deleted from the electoral rolls. The AASU subsequently launched an agitation to compel the government to identify and expel allegedly illegal immigrants.

In 1983, the then Prime Minister, Indira Gandhi declared that 4 million ‘foreign nationals’ would be given the right to vote. This declaration acted as a catalyst and essentially set the already on - edge natives off, natives who were already scared by the changing demography of Assam.

Their response was seen in full, on the morning of February 18, 1983, when close to 10,000 Bengali Muslims were butchered within six hours. The Tiwari Commission Report, which looked into this massacre and allegedly blamed the AASU and the Bharatiya Janata Party among others for the violence that was unleashed, has three copies, all three of which are very closely guarded secrets and thus, inaccessible to the public.

After the massacre, 688 FIRs were filed, out of which 378 were never carried forward owing to ‘lack of evidence’ and 310 were slated to be charged. However, they too were dropped after the signing of the ‘Assam Accord’ of 1985 and thus, not a single person who participated in that pogrom, was brought to justice.

The aforementioned ‘Assam Accord’ was signed under the ‘leadership’ of Rajiv Gandhi and stipulated that all those who had entered India before 1966 were to be declared as citizens. Those who had entered India between 1966 and 1971 were to be struck off electoral rolls and would be made to wait ten years before they could register for citizenship and those who entered India after 1971 were to essentially be declared as ‘illegal migrants’ and thus, actively deported.

This accord was followed by a further amendment in the Citizenship Act in 1986 that stated that in order to be a citizen of India, one of the parents had to be a citizen at the time of birth. Thus, the drift away from the ‘jus soli’ principle towards the ‘jus sanguinis’ principle had gained precedent.

III: Citizenship Amendment Acts of 2004 and 2019:

The precedent set by the Nellie Massacre and the consequent amendment to the

Citizenship Act was bolstered by the Citizenship Amendment Act of 2004. It not only gave the Union Government the power to conduct a nationwide NRC, but also added the word ‘illegal immigrant’ into the act while further shifting towards the ‘jus sanguinis’ principle.

The amendment brought in under the ‘leadership’ of then Prime Minister, Atal Bihari Vajpayee, stated that ‘illegal immigrants’ would be those people who entered India: (i) without a valid passport or other travel documents and such other document or authority as may be prescribed by or under any law in that behalf;

(ii) with a valid passport and other required documents but stay beyond the permitted period of time.

Even more, The Citizenship Rules were simultaneously amended to exclude ‘minority Hindus with Pakistani Citizenship’ from the definition of ‘illegal migrants’. Thus, not only did this amendment destigmatize Hindu migrants, most of whom had come into the border states of western India from Pakistan, by dropping the label of ‘illegal migrants’ for them, and officially describing them henceforth as ‘minority Hindus with Pakistan citizenship,’ but also explicitly added religion into what had until now, been a religion neutral law on the face of it.

Another interesting thing to note is that ‘refugees’, a word so commonly used exclusively to refer to Hindu migrants from Pakistan during the partition, fall into the category of ‘illegal migrants’. Therefore, not only does India not have an internationally mandated responsibility to take care of refugees, it now no longer has an internally mandated responsibility to take care of them as well. Thus, the state is now completely free to arrest, detain and deport refugees back to the original country from which they are fleeing, an act that is already being carried out in mass.

The 2004 amendment also amends the ‘By Birth’ section of the Act. It states that in order to be a citizen of India, one parent had to be a citizen at the birth and the other at minimum should not be an ‘illegal migrant’. Thus, demonstrating the further shift towards the ‘jus sanguinis’ principle.

However, we truly distanced ourselves from the ‘jus soli’ principle of the original act and embraced the ‘jus sanguinis’ principle fully with the Citizenship Amendment Act of 2019.

The act stated that Hindus, Sikhs, Jains, Buddhists and Christians from Afghanistan, Pakistan and Bangladesh who had entered India before 31st December 2014 would not be treated as ‘illegal immigrants.’ Even more, the time required for members of the aforementioned communities to stay in India to apply for citizenship through the ‘By Naturalization’ section was reduced to five years. This essentially fast tracked the process of gaining citizenship for the above communities while explicitly leaving out one — the Muslim Community.

The logic provided behind such a provision was that since Islam was the prominent religion in the three countries, its members could simply not be persecuted in them. However, just as the Dalit population is persecuted for their identity, the existence of communities such as the Rohingya Community and Ahmadiyya Community show that argument to not only be false but also malicious.

The entire history of citizenship in India thus, has created a narrative: that Muslims are to be blamed for the situation that the sub - continent finds itself in. That the plight of non - Muslims was somehow brought upon by Islam and its followers should be shunned and thrown away and made to repent for their ancestors’ “sins” and at every step has an immense effort been made to achieve the same.

Therefore, it seems that the dreams of men like Sardar Bhopindar Singh have come true. Citizenship in India is now decided openly on the basis of religion, with those that ‘betrayed the integrity of India’, being systematically denied citizenship. And for those members that do possess citizenship? Well, simply put, every system is so openly designed and implemented to be against them, that citizenship doesn’t really feel like citizenship at all.