The process of updating the National Register for Citizens in Assam is a momentous exercise with huge implications for India’s constitutional scheme, especially on issues pertaining to the question of citizenship. Citizenship in India is governed by the Constitution and the Citizenship Act, 1955. While both prescribe the means of acquiring citizenship, they do not define it. A person may be a citizen by birth, by descent or by naturalisation. However, citizenship goes beyond just the act of being a citizen — it conflates complex ideas of nationality and ethnicity. Thus, it would be remiss to talk of citizenship without understanding that it is rooted in exclusion.
The Partition was India’s first test of citizenship, leading to large-scale movement of people across the newly-drawn borders, primarily for reasons of religion. India’s geographical location, however, ensures that the movement of people are not isolated incidents. There has been a near constant influx of people into India from neighbouring countries.
The recent Citizenship Amendment Bill 2016 seeks to make drastic changes to the existing immigration norms in India by making it easier for certain immigrants to seek citizenship. After the 2004 amendment, an undocumented migrant in India is defined as anyone entering the country without a valid passport, with forged documents, or one who overstays their visa term. The proposed amendment exempts “persons belonging to minority communities” — Hindus, Sikhs, Jains, Parsis, Buddhists and Christians — from Afghanistan, Pakistan and Bangladesh from being treated as undocumented immigrants. In addition, anyone who fulfills these requirements will now only need six years of ordinary residency — as opposed to 11 presently — to claim citizenship by naturalisation.
Interestingly, the Bill refers to persons belonging to minority communities as “illegal immigrants”, as they would technically be refugees if they are fleeing from persecution. These definitions are important, as conflating these terms would only hamper India’s refugee policy.
While the idea behind this amendment might be noble, the Bill is noteworthy in its exclusions — rather than inclusions. The religious undertone of this exercise is problematic. By explicitly naming the religions getting exemptions, the Bill flouts the fundamental right to equality enshrined in Article 14 of the Constitution.
All this is further complicated by the fact that India currently does not have a refugee law in place, it is not a signatory to the 1951 UN Refugee Convention or its 1967 Protocol. However, India’s stance on refugees has been, largely, consistent — it has been one of hospitality. It has also been steady since Jawaharlal Nehru said of the Tibetan refugees that they must return to their homeland, once the conflict has been resolved. The proposed law, however, goes against this long-practiced tenet by making the process of availing citizenship much easier.
The exclusion of persecuted Tamils from Sri Lanka is also perplexing. Refugees fleeing the civil war in Sri Lanka did so under the most trying circumstances, where going back was not an option for many. A significant portion of the refugees are Indian Tamils, or Hill Country Tamils. They are descendants of labourers taken from India to work on Sri Lankan plantations. In spite of assurances, these labourers got neither Indian nor Sri Lankan citizenship after the departure of the British. Thus, an Indian origin worker born in colonial Sri Lanka would have lived through the Independence and the birth of two nations but remained stateless at the end of it.
The Union Ministry of Home Affairs justified this exclusion by claiming that Sri Lankan refugees in Tamil Nadu can avail long-term visas (LTVs). However, refugees do not often have the documents required to acquire a long-term visa. A long-term visa would enable an immigrant in the country to open a bank account, get an Aadhaar card, purchase property and move freely within the country. Sri Lankan refugees, however, lack the documentation required for them to be eligible to acquire an LTV.
Nowhere in India was this Bill more vehemently protested than in the Northeast. Assam, in particular, opposed the amendments introduced through this Bill. The Northeast is often seen as an easy point of entry for those wishing to settle in India. For Assam, the bill seems to be in direct contravention to the Assam Accord of 1985. The Accord specified that the names of foreigners who have entered Assam after January 1, 1966, and up to March 24, 1971, shall be struck off the electoral rolls and they would be required to register themselves under the Registration of Foreigners Act, 1939. Any foreigner who has entered the country after March 24, 1971 shall be expelled.
The Bill also brings into question the process of updating of the National Register of Citizens (NRC). It will legitimise the citizenship of all those who would have been considered foreigners under the Assam Accord and the NRC.
Other Northeastern states have also registered their protest with respect to the Bill. Mizoram is apprehensive of the influx of Chakma refugees from Bangladesh. Most regional parties, including those from Tripura and Nagaland, have opposed the Bill. The general fear amongst these states is that regional identity will be diluted if this bill becomes an Act. The threat that they may end up being a minority in their own state combined with the anger that they will have to bear the brunt of an influx of refugees has led to protests all over the Northeast.
What is disregarded in this argument, however, is the exclusionary nature of citizenship determination processes like the NRC. Even if there are four million illegal immigrants presently residing in Assam, the State should ideally have formulated a framework for the inclusion of all those already in the country, while simultaneously preventing more refugee influx. The State’s lack of transparency on its future plan of action is troubling. To even consider rendering this substantial populace stateless would go against every humanitarian principle India adheres to.
Though India is not a signatory to the 1951 Refugee Convention, the country is bound by the international principles of humanitarianism. India’s commitment to core international human rights instruments such as the Universal Declaration of Human Rights and the Convention on the Elimination of All Forms of Racial Discrimination, combined with its own constitutional ethics, means that the country cannot be exempt of her duty in protecting asylum seekers. This protection must be extended to all those seeking refuge.
The Citizenship Amendment Bill carries the danger of making discrimination a formal part of India’s refugee policy — that would be a dangerous precedent indeed.
This article first appeared in the print edition on July 25, 2019 under the title ‘A formula for exclusion’. Rajan is professor at the Centre for Development Studies, Kerala and Subbiah is an advocate at Bombay High Court.