Transformations in Indian citizenship: Tryst with arbitrariness

How have citizenship laws in India transformed from following the principles of jus soli to jus sanguinis, and what are the legal, historical and political dimensions of this change?

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THE last decade in India has witnessed a profound reconfiguration of the relationship between the State and the citizen, marked by a remarkable shift in responsibilities from the government to the citizens.

The burden of responsibility has begun to fall more on citizens' shoulders towards fulfilling their fundamental duties than the State prioritising fundamental rights.

The nation's turmoil with identity began against the backdrop of economic challenges, unprecedented policy initiatives like demonetization, dilution of Article 370, and longstanding wait for elections in the Valley, coupled with the exigencies of a global pandemic.

Indian citizens found themselves burdened with proving, registering and aligning themselves with an evolving concept of citizenship. A pivotal moment in this transformative period was the introduction of the Citizenship Amendment Act (CAA) in 2019, which introduced religious considerations to the citizenship framework, raising constitutional concerns, as well as a shift in policy of the government of India regarding what the nation-State should look like in the upcoming years.

This article aims to understand the transformation of citizenship laws in India moving from following the principles of jus soli to jus sanguinis, and delving into its legal, historical and political dimensions.

Central to this analysis is the examination of Article 14 and its intersection with the CAA, questioning the rational basis for the law's religion-based classification, through the context of Assam, a region with a sensitive history of citizenship disputes.

As we navigate through these complexities, the article also critically evaluates the constitutional foundations of the CAA, anticipating potential and existing legal challenges and societal implications. The impending discussions of the National Population Register (NPR) adds a layer of concern, setting the stage for an in-depth exploration of the changing contours of Indian citizenship.

The shift in burden of responsibility: From State to citizen

The past decade (2011–20) has by far been the most difficult to have been an Indian citizen, for it was in this decade that Indian citizens have had the burden of proving, registering, identifying and associating themselves with regards the duties of a citizen in the form of citizenship.

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Citizens around India have been running helter-skelter, from registering for Aadhaar to accepting the idea of a National Register for Citizens. Dealing with an unprecedented demonetisation to the increasing tests of patriotism and nationalism, Indians went from having to pay more taxes than ever before to the worst dip in the economy and job growth since Independence.

The onus has fallen on Indian citizens to take the burden while the government has become the Big Brother.

Not to say that all of this has been taking place silently, Indians everywhere have been raising their voices in protest against these unprecedented times.

The resolutions to these protests lie in the citizenship regime that has changed since the change of approach, which can most easily be explained by discussing one of the latest changes in Indian citizenship and constitutional law.

A diverse sub-continent

The Peninsular Indian Subcontinent is a multi-cultural, multi-ethnic and multi-religious geographical location on the world map. India shares its borders with Afghanistan, Bangladesh, Bhutan, China, Myanmar, Nepal, Pakistan and Sri Lanka having multi-religious cultures including followers of Islam, Sikhism, Jainism and Christianity apart from the majority population— followers of Hinduism.

Thus, India came out with a law in late 2020 called the CAA, which provided that only six religious communities— Hindu, Sikh, Buddhist, Jain, Parsi and Christian— from Pakistan, Bangladesh and Afghanistan will be granted citizenship if they arrived in India before December 31, 2014.

Naturally, it raised several eyebrows. This was the first time the country had designed Indian citizenship status on the basis of religion and the conspicuous absence was Muslims.

The questions of law that arose were:

1. When India has eight neighbouring countries, why were three selected and the other five left out?
2. Why were some religious groups chosen while others were left out?

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1. Why have the Northeastern states been exempted while others are not?
2. Why has religious persecution been taken up while other kinds of persecution still stand unaddressed?
3. Why was the cut-off date set to 2014 from the previous deadline of 1971 decided via the Assam Accord by the government of India?

To answer these questions, one has to go back to the basics of Indian citizenship and the criteria on which the parameters of Indian citizenship were born.

Article 14 criteria: Equality and intelligible differentia

The rule of law as under Article 14 holds that the State has to uphold the principles of the right to equality before the law and equal protection of the laws. This challenges any arbitrary State action.

However, the interpretation of Article 14 does not mean all should be treated equally but that 'equals should be treated alike' and hence, reasonable classification of persons for the purpose of achieving certain ends is permitted. What is forbidden is class legislation.

The classification, thus, in the CAA 2019, prima facie has been put up for challenge in the Supreme Court. The court in K. Thimmappa versus Chairman, CBD noted: "When a law is challenged to be discriminatory essentially on the ground that it denies equal treatment or protection, the question for determination by the court is not whether it has resulted in inequality but whether there is some difference which bears a just and reasonable relation to the object of the legislation.

"Mere differentiation does not per se amount to discrimination within the inhibition of the equal protection clause. To attract the operation of the clause it is necessary to show that the selection or differentiation is unreasonable or arbitrary; that it does not rest on any rational basis having regard to the object which the legislature has in view."

So, when the litigation does pick up in the Supreme Court, those petitions challenging that the CAA striking Article 14 would force the State to explain the rationale and intelligible differentia behind the cut-off date being increased by three decades, the selection of three countries in the name of having a State religion, and preferring certain communities in the name of persecution.

The State has created a 'class legislation' in effect via the amendment and created two different classes of illegal immigrants.

The Act provides for easier naturalisation for immigrants belonging to particular religions, to the exclusion of a few other equally placed religious groups. A preference is thus clearly granted in favour of the six identified religious communities, meting out differential treatment based on religious belief.

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Furthermore, the reasons for choosing these countries were unclear, even more so for Afghanistan. If one believes the government's theory about the Partition of the sub-continent happening on religious lines, then we must question— where does Afghanistan come into the picture?

Unlike Pakistan, it was never a part of the British Raj. Further, at the time of the Partition, Pakistan was not a Muslim State and Jinnah had always envisioned Pakistan as a secular country. If the government had chosen to grant citizenship to minorities from States that have adopted a State religion, why were Sri Lankan Tamils not included as it also has Buddhism as the State religion?

The provisions under the CAA can be deemed unconstitutional on the grounds of lacking intelligible differentia and reasonable classification, thus pitting them against the right to equality under Article 14.

Assam: NRC and CAA

Post-Independence, one can say that the Northeastern states, especially Assam, have been the hotbed of citizenship-related issues. Considered a politically fragile area, rich with diverse tribes and troubled borders, the natives have always been wary of their neighbours. The most notable exercise in this respect has been the Assam Andolan and the immigration of people from East Pakistan. Thus, it becomes inevitable to talk about Assam when it comes to citizenship.

Before the creation and Independence of Bangladesh in 1971, due to the ethnic violence carried out by Pakistan against the Bengali Muslims in East Pakistan, a section of the population had crossed over to India for safety.

But after the creation of Bangladesh and the Assam Accords, the government of India and leaders of the movement led by Assam's youth came to an agreement wherein the Indian government agreed to send back Bangladeshi citizens who had crossed over after the war was over and a new State had been created.

The process of sending the population back was to be carried out via the NRC or the National Register for Citizens. But when the new cut-off date was announced in 2014 all it did was stir the confusion. It did not make sense as the rationale of the previous cut-off date was in line with the creation of Bengal.

For the 2014 cut-off date, no specific or strategic reason was given by the government. The CAA triggered protests throughout India, but for Assam, the reasons were more nuanced and specific. For the Assamese population, the new cut-off date was a violation of the Assam Accords by the government; the rest of the Northeastern sister states (except Sikkim) are protected by the Inner Line Permit, which means that they are protected by the Constitution. Hence, the burden to resettle the refugees falls upon Assam and the rest of the 20 states of the country.

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In the Northeastern states, especially Assam, the fear is that this amendment would legitimise the migration of Hindus from neighbouring Bangladesh in particular, potentially affecting the demographic makeup of the region, notes Saba Sharma.

In the NRC process carried out under the supervision of the Supreme Court, it was found out that there were 17 lakh refugees— five lakh Hindus, seven lakh Muslims and seven lakh others belonging to different religions including the tribal population.

This, coupled with the CAA, meant that all the non-Muslim population (roughly 12 lakhs) who came from Bangladesh, Afghanistan and Pakistan would be given a free pass to Indian citizenship, but what about the Muslims?

The issue is deeper than that of just an overburdened state. It is also about the protection of a fragile culture. The fear of losing it to foreigners and also Indian Bengalis is pervasive among the Assamese people. The cherry on top of the cake is the continuous overflow of millions of people into the already overpopulated and ecologically fragile state.

For the rest of the country, the protests were based more than just on cultural fragility and changes to the state demographic. It was about constitutional principles, it was about Islamophobia and questioning the idea of citizenship based on religion which in India was previously based on birth (jus soli), and descent (jus sanguinis), void of religious considerations.

Citizenship and the law: Constitution and the Citizenship Act

The Indian law on citizenship is discussed under two separate statutes. The first is the Constitution of India, 1950 which lays down who were the citizens before the commencement of the Constitution, i.e., before January 26, 1950, and displays the effects of the aftermath of the Partition affecting Indian citizenship. Articles 5-11 of the Constitution, thus, discuss the classification of citizens pre-commencement of the Constitution itself and are divided into three categories: 

• Citizenship by domicile.
• Citizenship by migration.
• Citizenship by registration.

The second is the Citizenship of India Act, 1955 which regulates Indian citizenship post-1950 and enumerates the process of acquiring Indian citizenship.

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This is the same Act that was amended as recently as in 2019 and saw protests across the country with the whole amendment being considered problematic and unnecessary. The amendment saw a policy shift in terms of granting nationality and citizenship from jus soli to jus sanguinis. The Act provides five modes of acquisition of citizenship in India namely: 

• Birth.
• Descent. 
• Registration. 
• Naturalisation. 
• Incorporation of territory.

The 2019 Amendment Act changes the definition of the term 'illegal immigrant', under Section 2(b) of the 1955 Act. It excludes people belonging to six religions from three countries from the definition of illegal immigrants.

The Act also changed the period required for the acquisition of citizenship by naturalisation for this class of people from 11 years to six years, effectively meaning that all the people eligible as above who came to India as illegal immigrants according to the Act of 1955 would now be citizens if they came on or before December 2014.

This creates a class differentiated from other illegal immigrants which attacks Article 14 at its heart— the right to equality and equal protection clause.

Nationality and citizenship: Jus soli and jus sanguinis

Traditionally, as evidenced by the Citizenship Act of 1955, citizenship in India was acquired by birth on Indian soil (jus soli) or by descent— the son or daughter of Indian citizens are themselves an Indian citizen, even if they were born abroad.

The reforms that took place from 1987 onwards tended to fully replace the old jus soli with a form of jus sanguinis as at least one of the parents had to be born Indian (and after 2003, the other parent should not be considered illegal at the time of birth), explains Christophe Jaffrelot.

Jus soli has been the constitutionally backed doctrine defining Indian citizenship and the statutory approach that the State departed from towards jus sanguinis. Niraja Jayal notes that "the choice of jus soli was justified by its presumed 'enlightened modern civilised' character, contrasted with a racial conception such as jus sanguinis".

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She adds further, "The infiltration of a jus sanguinis regime is more visible in statutory law, in particular in recent amendments to the Citizenship Act." The religious theory of citizenship only applied to people moving from Pakistan to India and those who were returning to India after having moved to Pakistan.

Though this shadow of Partition exhibited this consideration of religion in Indian citizenship, the CAA 2019 is the most abused form of the jus sanguinis doctrine, coupled with religious considerations.

Conclusions

While the religion-based Partition of the British Empire in the sub-continent caused tremors across the two, and later three (India, Pakistan and Bangladesh) sides, in India it did not make an impact on the status of one's citizenship.

The introduction of CAA under the false pretence of protecting persecuted religious minorities falls flat when the Act does not have any provision in it regarding South East Asia's biggest refugee crisis, i.e., Rohingyas.

If the object of the government via the amendment was to protect the minorities in neighbouring countries that have a State religion, then leaving Sri Lankan Tamils to suffer again backfires on the propaganda of the government. The Act is riddled with selective 'upliftment' from refugee status and is regressive in its idea.

Traditionally, when it comes to settling refugees, India has never needed any law. The Sikh, Parsi and Muslim refugees were settled in India post-Partition. In the case of the Assam Andolan and East Pakistan crisis, the Assam Accord and the cut-off date of 1971 settled the matter.

The occupation of Tibet by China resulted in an influx of refugees including the Dalai Lama, who have sought refuge in India for several years. The Bangladesh crisis which has freshly erupted once again, also creates certain fears among the Indian border states.

The government's reasons are not backed by any established legal principle and the Act creating such a classification stands to be void ab initio and contrary to Indian Constitution and constitutionalism, let alone secular principles and international human rights perspectives.

NPR, as projected by the government, would cause another major blow to the Indian idea of citizenship through this redefinition. The Citizenship Amendment Act is, hence, a prime example of colourable exercise of power if one is to look deeper into its moral foundations.