UPSC Issue at a Glance | Section 6A and Citizenship

Why is this issue relevant?

UPSC has often asked questions on citizenship and associated issues in various stages of examinations. For instance, in the UPSC CSE Prelims 2021, there was a question on citizenship. Also, current affairs topics that are hitting the headline are relevant for essays and personality tests. Therefore, it’s important to know about citizenship, especially with the recent Supreme Court verdict on Section 6A of the Citizenship Act of 1955.

UPSC Syllabus: 

Preliminary Examination: Indian Polity and Governance- Constitution, Political System, Panchayati Raj, Public Policy, Rights Issues.

Mains Examination: GS-II: Indian Constitution—Historical Underpinnings, Evolution, Features, Amendments, Significant Provisions and Basic Structure.

Question 1: What are the constitutional provisions for citizenship in India?

Citizenship is a specific legal relationship between an individual and a state. It is a legal status that grants a person the right to reside in a country and to receive protection from that country. Citizenship also entails specific rights, obligations, and responsibilities that citizens possess, but that non-citizens do not. 

In India, like in every other democratic country, there are laws related to citizenship. The Indian Constitution contains articles that outline the provisions for citizenship. The Constitution establishes a single form of citizenship, known as national citizenship, without differentiating based on states.

The term “citizenship” is not explicitly defined in the Constitution, but Articles 5-11 provide the framework for citizenship at the time of the Constitution’s commencement. These provisions outline the methods of acquiring citizenship, such as birth, domicile, and descent, as well as circumstances that disqualify individuals from obtaining Indian citizenship.

Article 5 specifically addresses citizenship at the outset of the Constitution. It establishes a dual requirement for granting citizenship, which includes being “domiciled” in India and meeting one of three criteria:

1. Being born in Indian territory,

2. Having at least one parent born in Indian territory,

3. Being a resident of Indian territory for a minimum of five consecutive years preceding the Constitution’s commencement.

Article 6 provides the provisions concerning the “Rights of citizenship of certain persons who have migrated to India from Pakistan.” Whereby, Article 7 specified the Rights of citizenship of certain migrants, who migrated to the territory of Pakistan and returned to the territory of India after the nineteenth day of July 1948. Article 8 presents the “Rights of citizenship of certain persons of Indian origin residing outside India.”

Article 9 explains that “Persons voluntarily acquiring citizenship of a foreign State will not be citizens.” According to it, no person shall be a citizen of India if they have voluntarily acquired the citizenship of any foreign State.

Article 10 discusses the “Continuance of the rights of citizenship.” Article 11 explains Parliament’s power to make provisions regarding the acquisition and termination of citizenship and other related matters.

Question 2: How does the Citizenship Act of 1955 govern the acquisition and loss of citizenship?

The constitutional provisions were originally intended to define citizenship at the commencement of the Constitution. However, the Citizenship Act of 1955 aimed to outline the substantive aspects of citizenship thereafter. It deals with matters relating to acquisition, determination and termination of Indian citizenship after the commencement of the Constitution.

Acquisition of Citizenship

According to the act, Indian Citizenship can be acquired under any of the following provisions:

1. Citizenship by birth (Section 3): In 1955, the law provided that anyone born in India on or after January 1, 1950, would be deemed a citizen by birth. This was later amended to limit citizenship by birth to those born between January 1, 1950 and January 1, 1987.

Again, it was amended by the Citizenship Amendment Act, 2003. According to it, those born after December 3, 2004, will be deemed a citizen of India by birth if one parent is an Indian and the other is not an illegal immigrant.Thus, if one parent is an illegal immigrant, the child born after 2004 will have to acquire Indian citizenship through other means, not simply by birth. The law describes an illegal migrant as a foreigner who: 

(i) enters the country without valid travel documents, like a passport and visa, or 

(ii) enters with valid documents, but stays beyond the permitted time period.

2. Citizenship by descent (Section 4): A person born outside India and who has at least one Indian parent will be granted citizenship provided that the birth is registered within 1 year with the Indian consulate in the jurisdiction.

3. Citizenship by registration (Section 5): This is for persons related to an Indian citizen through marriage or ancestry.

4. Citizenship by naturalisation (Section 6): According to Section 6 of the Citizenship Act, a certificate of naturalisation can be granted to a person who is not an illegal immigrant and has resided in India continuously for 12 months before making an application. Additionally, in the 14 years before the 12-month period, the person must have lived in India for at least 11 years.

Notably, the Citizenship Amendment Act, 2019has reduced the period of citizenship by naturalization for migrants belonging to the Hindu, Sikh, Buddhist, Jain, Parsi, or Christian communities from 11 years to five. It also includes a provision for granting citizenship to migrants belonging to these communities who entered India before December 31, 2014, from Pakistan, Afghanistan, or Bangladesh. The CAA carves out an exception for tribal areas of Assam, Meghalaya, Mizoram or Tripura as included in the Sixth Schedule to the Constitution and the area covered under “The Inner Line.”

5. Citizenship by incorporation of territory (Section 7): Section 7 of the Citizenship Act of 1955 addresses citizenship by incorporation of territory. This means that when a territory becomes part of India, the Central Government has the authority to grant citizenship to individuals based on their connection to that territory.

Termination of Citizenship 

The Citizenship Act of 1955 includes provisions regarding the termination of citizenship. For example, Section 8 deals with the Renunciation of citizenship; Section 9 covers the Termination of citizenship; and Section 10 explains the basis of “Deprivation of citizenship”.

Question 3: What is Section 6A of the Citizenship Act, 1955, and how was it introduced following the Assam Accord of 1985?

Assam Accord was signed on August 15, 1985 by the Governments of India and Assam, the All Assam Students’ Union and the All Assam Gana Sangram Parishad in New Delhi. It came at the end of a six-year mass movement, spearheaded by students, against illegal migration from East Pakistan/Bangladesh and aimed to safeguard Assam’s rich cultural, linguistic, and social identity.

The Memorandum of Settlement on the Assam problem was signed between Central Government and the leaders of the Assam movement at the residence of Prime Minister of Rajiv Gandhi (Express Archive Photo)

A key element of the Assam Accord was determining who was a foreigner in the state. Clause 5 of the Assam Accord states that January 1, 1966 shall serve as the base cut-off date for the detection and deletion of “foreigners” but it also contains provisions for the regularisation of those who arrived in the state after that date and up till March 24, 1971. Here, we see that Section 6A was introduced in the Citizenship Act of 1955 to give legal effect to Clause 5 of the Assam Accord. 

Section 6A grants citizenship to anyone who entered Assam from Bangladesh before January 1, 1966. It also recognises those who arrived between January 1, 1966, and March 24, 1971, as Indian citizens, but without voting rights for 10 years. Only immigrants who entered illegally after March 25, 1971, are considered illegal and ineligible for citizenship.

Question 4: Why was Section 6A challenged in the Supreme Court and what is the recent Supreme Court verdict on it?

Section 6A was contested on the grounds that it violates constitutional provisions on citizenship and goes against the Right to Equality by setting a different yardstick for Assam compared to the rest of the country. The petitioners had also alleged that by allowing migration, the clause hurts the ability of Assam’s “indigenous communities to protect their culture” — and that it, therefore, violates Article 29 of the Constitution. In its over 400-page long verdict, the SC has engaged with all these arguments.

Supreme Court verdict on Section 6A

The Supreme Court in its verdict upheld the constitutional validity of Section 6A of the Citizenship Act, 1955 and called for stricter implementation of laws against illegal immigration and judicial monitoring of the implementation of immigration and citizenship legislations.

While Chief Justice of India D Y Chandrachud and Justices Surya Kant, M M Sundresh, and Manoj Misra upheld the constitutional validity, Justice J B Pardiwala dissented.

CJI Chandrachud said that Section 6A is not violative of Articles 6 and 7 of the Constitution, which prescribe a cut-off date for conferring citizenship for migrants from East and West Pakistan at the “commencement of the Constitution”, that is January 26, 1950. 

“Legislative objective of Section 6A was to balance the humanitarian needs of migrants of Indian origin and the impact of the migration on the economic and cultural needs of Indian States,” said CJI Chandrachud.

Justice Surya Kant and Justices M M Sundresh and Manoj Misra, said, “Section 6A falls within the bounds of the Constitution and does not contravene the foundational principles of fraternity, nor does it infringe upon Articles 6 and 7, Article 9, Article 14, Article 21, Article 29, Article 326, or Article 355 of the Constitution of India.”

Express view: SC verdict on Section 6A shifts citizenship debate to a broader ground

The SC verdict takes a liberal and expansive view of citizenship. CJI Chandrachud sets the tone by observing that “challenges regarding the constitutionality of a statute require the Court to take a flexible approach ”. Section 6 A, as he and three of his colleagues on the bench note, was the legislative corollary to the Assam Accord. The task before the lawmakers was to balance “the humanitarian needs of migrants of Indian origin and its impact on economic and cultural needs of Indian states”.

The SC has endorsed the cut-off date for meeting this imperative. It held the March 25, 1971 cut-off rational on two grounds. One, The Illegal Migrants (Determination by Tribunals) Act, 1983 sets this cut off. Moreover, the Pakistani Army launched Operation Search Light to curb the nationalist movement in East Pakistan on this day. “The migrants before the operation,” CJI Chandrachud says, “were considered to be migrants of Partition towards which India had a liberal policy”.

The petitioners argued that the Constitution “upholds national fraternity, not global fraternity”. In an important section of the verdict, Justice Surya Kant goes into Constitutional Assembly debates to arrive at a broader view of this principle. “In the Indian constitutional context, fraternity assumes an inclusive role, aligning with the broader goals of social justice,” he points out. He terms the petitioner’s view “restrictive” — “it allows them to choose their neighbour” — and says its runs “contrary to the ethos envisaged by the Constituent Assembly”.

The Court’s “dynamic” reading of citizenship that is sensitive to the imperatives of “equality and upliftment” is significant at a time when debates over setting the parameters of Indian nationalism continue to rage.

Post Read Questions

(1) With reference to India, consider the following statements: (UPSC CSE 2021)

1. There is only one citizenship and one domicile.

2. A citizen by birth only can become the Head of State.

3. A foreigner once granted citizenship cannot be deprived of it under any circumstances.

Which of the statements given above is/are correct?

(a) 1 only

(b) 2 only

(c) 1 and 3 only

(d) 2 and 3 only

 

(2) With reference to the citizenship of India, consider the following statements:

1. The provisions related to the citizenship were put into effect before the Constitution of India came into effect.

2. The term citizenship is explicitly defined in the Constitution.

Which of the statement(s) given above is/are correct?

(a) 1 only

(b) 2 only

(c) Both 1 and 2

(d) Neither 1 nor 2

 

(3) At the commencement of this Constitution, every person shall be a citizen of India who has his domicile in the territory of India and:

1. A person has migrated on or after the nineteenth day of July 1948

2. Whose grand-parents were born in India as defined in the Government of India Act, 1935

3. Who was born in the territory of India

4. Either of whose parents were born in the territory of India

5. Who has been ordinarily resident in the territory of India for not less than five years

Select the correct answer using the codes given below:

(a) 1, 2, 4 and 5 only

(b) 2, 3 and 5 only

(c) 3, 4 and 5 only

(d) 1, 2, 3, 4 and 5

 

(4) Consider the following statements about the Treaty of Yandabo:

1. It marked the beginning of British rule in Assam.

2. The British viewed Assam as a frontier and encouraged large-scale immigration.

Which of the statements given above is/are not correct?

(a) 1 only

(b) 2 only

(c) Both 1 and 2 

(d) Neither 1 nor 2 

(Sources: Constitution of India, What is Citizenship Amendment Act?, CAA, The history of immigration in Assam, In a 4:1 majority ruling, Supreme Court upheld constitutional validity of Section 6A, SC upholds Section 6A of Citizenship Act)

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