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Citizenship

Abstract and Keywords

This chapter examines the question of citizenship in the Indian Constitution. It first considers the debate in the Indian Constituent Assembly over jus soli vs jus sanguinis citizenship, along with the constitutional settlement of citizenship and the key issues that are most contested—and remain central to—citizenship jurisprudence. It then turns to a discussion of four terms whose interpretation has been central to the case law on citizenship: domicile, intention, migrant, and passport. It also analyses the main provisions of the Citizenship Act 1955 and the amendments to this piece of legislation from the mid-1980s to the present. The rest of the chapter explores the gradual shift from a jus soli conception of citizenship to one based on the principle of jus sanguinis, as well as the patterns of change and continuity in the constitutional and post-constitutional law of citizenship in India.

Keywords: citizenship, Citizenship Act 1955, domicile, Indian Constitution, intention, jurisprudence, jus sanguinis, jus soli, migrant, passport

I. Introduction

The chapter on citizenship in the Indian Constitution has two distinctive qualities. First, more than any other set of provisions in the Constitution, the Articles on citizenship have a pronounced quality of immediacy, of belonging only to the moment of their enactment. This is unusual because constitutions generally reflect a quality of timelessness in their phrasing, a sense of being enacted in perpetuity rather than speaking to a presumptively fleeting moment in time. This avowedly momentary character is accentuated, secondly, by the self-limiting provision that a more permanent and enduring law on citizenship will be enacted by Parliament in due course. As he recommended to the assembly the adoption of these Articles, Dr Ambedkar clearly stated that these provisions were not intended to lay down a permanent or unalterable law of Indian citizenship, but ‘all that we are doing is to decide ad hoc for the time being’ the question as to who would be citizens on the date of the commencement of the Constitution.1 Every other matter relating to citizenship would be determined by Parliament. The phrasing of Article 11—‘Nothing in the foregoing provisions of this Part shall derogate from the power of Parliament to make any provision with respect to the acquisition and termination of citizenship and all other matters relating to citizenship’—reaffirms the transience and self-limiting character of these constitutional provisions.

The immediacy and impermanence were dictated by the particular circumstances of the Partition of India in 1947 that shaped these provisions substantively and in their self-conscious temporariness. Ironically, however, it is the legacy of this historical context that has proved to be the most enduring feature of citizenship law and jurisprudence in India. The present chapter provides an account of the constitutional provisions on citizenship in the Constituent Assembly of India, and the debates that preceded their adoption. It examines also the subsequent legislation of the Citizenship Act of 1955, the case law on citizenship, as well as the amendments effected in the Act and its Rules from the mid-1980s to the present. All of these, it is argued, strongly reflect the context of the Partition in which the constitutional provisions were drafted and adopted. The legal and judicial trajectory of (p. 164) citizenship in independent India is thus illustrative of the ways in which the Partition legacy continues to inflect this body of law and jurisprudence. Indeed, the imprint of this event has become more, rather than less, deeply entrenched with the passage of time. The Citizenship Act of 1955 encapsulates that innocent moment after the physical and emotional upheaval of the Partition has settled and a fresh attempt is made to legislate citizenship in a way that does not reflect this legacy. However, the legacy creeps in again after the break-up of Pakistan and the influx of immigrants on the eastern border of India. It also becomes more evident on the western border with the influx of Hindu refugees from Sindh and Punjab in Pakistan in the 1990s and beyond.

As reflected in the amendments to the citizenship laws and rules, this legacy is visible in the way in which jus soli citizenship has over time come to be visibly inflected by elements of jus sanguinis. The Constituent Assembly witnessed a contest between these two principles, and Section II of this chapter offers an interpretation of the debate and documents the constitutional settlement of citizenship. It also identifies the core issues that are most contested, and remain central to citizenship jurisprudence, much of which speaks to the legacy of the Partition. This is done through a focus on four terms whose interpretation has been central to the case law on citizenship: domicile, intention, migrant, and passport. Section III explicates the main provisions of the Citizenship Act 1955 and contextualises the amendments to the Citizenship Act from the mid-1980s to the present. Section IV documents the gradual shift from a jus soli conception of citizenship to one increasingly inflected by elements of jus sanguinis, reflecting the peculiar quality of the imbrication of the constitutional and statutory law of citizenship in the Partition of India. The apparent exception of recent amendments intended to accommodate the claims of the diaspora is actually less of an exception than it appears, as it echoes the shift from jus soli to jus sanguinis, albeit in a context discontinuous from that of the Partition. The concluding section reflects on the patterns of change and continuity in the constitutional and post-constitutional law of citizenship.

II. Citizenship for Extraordinary Times

Constitutions do not ordinarily define citizenship. Despite its invocation of the Declaration of the Rights of Man (1789), its vesting of national sovereignty in the French people, and its canonically inclusive conception of citizenship, the Constitution of the Fifth Republic in France does not actually define this concept. In the American Constitution, citizenship remained undefined until after the adoption of the Fourteenth Amendment, in the aftermath of the Civil War and as a reaction to the Supreme Court’s decision in Dred Scott v Sanford (1857).2 Even the famously progressive Brazilian Constitution of 1988, which (p. 165) privileges the value of citizenship as a founding principle of the republic, and defines expansively the social and economic rights of the people, does not actually indicate what the source and basis of citizenship will be.

When India’s Constituent Assembly began its deliberations in December 1946, there was no thought of a separate chapter on the topic of citizenship. By the time the Constitution was adopted, the Partition had intervened and citizenship had become the subject of Part II of the Constitution, following the first part on the Union and Its Territories. The seven Articles that comprise this section took two years to be finalised, leading Dr Ambedkar, the Chairman of the Drafting Committee, to say of what eventually became Article 5, the opening Article of the section:

Except one other article in the Draft Constitution, I do not think that any other article has given the Drafting Committee such a headache as this particular article. I do not know how many drafts were prepared and how many were destroyed as being inadequate to cover all the cases which it was thought necessary and desirable to cover.3

Article 5 was originally a part of the fundamental rights chapter. The discussion on citizenship was in fact initiated in the Sub-Committee on Fundamental Rights in March 1947, where there was consensus on a single citizenship for the Indian Union. There was also some preliminary discussion of the alternative bases of citizenship (jus soli and jus sanguinis), as members of the Constituent Assembly were anxious to avoid giving the impression that they were adopting the same ‘racial’ principle against which the Indian nationalists had offered solidarity to the struggles of Indians in South Africa. As Vallabhbhai Patel said, ‘It is important to remember that the provision about citizenship will be scrutinized all over the world.’4

The announcement of the Partition in June 1947 gave a new impetus to the debate on citizenship in the Constituent Assembly. The division of British India along broadly religious lines triggered the massive movement of population from one country to the other and (in some cases) back again to the first. It was accompanied by large-scale violence, displacement, and homelessness, which made it impossible to discuss even fundamental rights without some clarity about who the bearers of rights, or citizens, would be in the new republic.5 An ad hoc committee was set up to re-examine the question of citizenship in the wake of the changed circumstances of the Partition. In the early discussions, (p. 166) a variety of possible challenges were articulated, ranging from provisions for marriages between citizens of India and Pakistan, to provisions for residents of seceding areas who wished to retain their Indian citizenship. There was also some debate on the entitlements of Indian residents of Burma, Ceylon, Malaya, and other countries that had sizeable Indian populations. Determining an appropriate cut-off date to determine citizenship entitlements for persons migrating to India from Pakistan was obviously important. But the most contentious issues were around the concepts of domicile, migration, and the intention to settle, and we will return to these after a brief delineation of the constitutional provisions on citizenship in Articles 5–11 of the Constitution.

Article 5 confers citizenship, at the commencement of the Constitution, on every person who has his domicile in the territory of India and

  1. (a) who was born in the territory of India; or

  2. (b) either of whose parents was born in the territory of India; or

  3. (c) who has been ordinarily resident in the territory of India for not less than five years immediately preceding such commencement.

Article 5 was a preliminary foundational statement of jus soli citizenship, albeit one that applied only to persons already living rather than to future persons born after the commencement of the Constitution. It was chosen as a form of ‘enlightened, modern civilized’ and democratic citizenship, over the rival principle of jus sanguinis described by the constitution makers as ‘an idea of racial citizenship’.6 If Article 5 was an enunciation of citizenship for ordinary times, Articles 6 and 7 were articulations of citizenship for extraordinary times. Article 6 provides for citizenship for persons who migrated to India from the territory now included in Pakistan if either of their parents or grandparents was born in India. If such a person migrated to India before 19 July 1948, he7 should have been resident in India since the date of his migration; and if he migrated after that date, he should have been registered as a citizen of India by a designated government official. If Article 6 was intended to accord rights of citizenship to those people who migrated from Pakistan to India around the time of the Partition, Article 7 was correspondingly designed to exclude from citizenship those persons who migrated from India to Pakistan after 1 March 1947. However, it provided for rights of citizenship for those who had so migrated from India to Pakistan but returned to India with a permit of resettlement or permanent return issued by an authorised government official, after the same date and by a process similar to that provided for in Article 6. As we shall see, Article 7 was a hugely embattled provision in the Constituent Assembly.

Article 9 states that individuals who voluntarily acquire the citizenship of a foreign state cannot be citizens of India. Article 10 provides for the continuance of the rights of citizenship for anyone deemed to be a citizen under the earlier provisions ‘subject to the provisions of any law that may be made by Parliament’, and Article 11 gives Parliament complete power to ‘make any provision with respect to the acquisition and termination of citizenship and all other matters relating to citizenship’.8 The last two Articles underscore (p. 167) unambiguously the stopgap and ad hoc nature of the constitutional provisions on citizenship, which are intended to provide for the specific situation of the extraordinary event of the Partition while a conception of citizenship for normal times awaits the attention of an elected Parliament.

Echoes of the communally charged atmosphere of the Partition resounded in the assembly as it debated what eventually got enacted as Article 7. Though the markers of religious difference were not openly displayed, they are easily recognisable in the debates on Articles 6 and 7 of the Constitution. Article 6 was obviously unexceptionable as it guaranteed rights of citizenship for what were largely Hindu migrants from Pakistan, commonly described in the discourse of the time as refugees. Article 7, however, implicitly referred to those Muslims who had fled India for Pakistan in the wake of Partition-related violence, but later returned to reclaim their lives, livelihoods, and property. This Article was necessitated by the fact that the numbers of such people were considerable, the High Commission claiming that it received one thousand applications from Muslim refugees on a daily basis.9 These people were euphemistically described as ‘migrants’, and this was the most intensely contested Article on citizenship in the Constituent Assembly. It is important to note that though the Constitution does not use the terms refugee and migrant, these words occurred frequently in the speeches made in the Constituent Assembly, and subtly encoded religious identity in a shared universe of meaning.

There was heated contention in the assembly about the necessity for a provision such as this. Jaspat Roy Kapoor labelled Article 7 the ‘obnoxious clause’, arguing that:

Once a person has migrated to Pakistan and transferred his loyalty from India to Pakistan, his migration is complete. He has definitely made up his mind at that time to kick this country and let it go to its own fate, and he went away to the newly created Pakistan, where he would put in his best efforts to make it a free progressive and prosperous state.10

Other detractors of this Article declared that Indian citizenship was being ‘sold too cheaply’ and that the migration of these people from India to Pakistan had been intentional. They could now be saboteurs, spies, and fifth columnists, seeking to re-enter India. At best, they might have changed their minds about where to settle once they found Pakistan to be a less comfortable place than they had anticipated; or they might be returning to restore control over the properties they had abandoned when they fled. Loyalty and intentionality were recurring themes in this view, and intention was to become, as we shall see, a central motif in the adjudication of cases in subsequent years.

In contrast, those who advocated Article 7 favoured a more inclusive conception of legal citizenship. They argued that the Muslim migrants who had left India because of the communal riots and violence should be welcomed back. Their loyalties and intentions could not be treated as suspect because they had, to quote Mahajan CJ in Central Bank v Ram Narain just a few years later:

[I]n October or November 1947, men’s minds were in a state of flux. The partition of India and the events that followed in its wake in both Pakistan and India were unprecedented and it is (p. 168) difficult to cite any historical precedent for the situation that arose. Minds of people affected by this partition and who were living in those parts were completely unhinged and unbalanced and there was hardly an occasion to form intentions requisite for acquiring domicile in one place or another. People vacillated and altered their programmes from day to day as events happened. They went backward and forward; families were sent from one place to another for the sake of safety … No one, as a matter of fact, at the moment thought that when he was leaving Pakistan for India or vice versa that he was forever abandoning the place of his ancestors.11

The intention to acquire domicile was not only difficult to establish but also seen to be unreasonable, as it sought to establish rational and deliberate intent in a situation dominated by the raw emotions of fear and insecurity. All these—domicile, intention to permanently settle, and the meaning of migration—became points of contention in the case law.

Even as the Citizenship Act was passed by Parliament in 1955, the legacy of the Partition continued to be unsettled and ubiquitous in citizenship jurisprudence. In the body of case law following 1950, there are only a few cases—such as the State Trading Corporation case about whether or not a corporate entity enjoys the fundamental rights of a citizen—that are altogether unrelated to the event of Partition.12

Since the term ‘domicile’ in Article 5 was not defined in the Constitution, it came to be contested in several cases that invariably referred to the basic principles of English law making a distinction between domicile of origin and domicile of choice. While there is a wealth of legal commentary on the term in the context of the Conflict of Laws,13 what is relevant for our purposes is the relationship between domicile and citizenship adjudicated in a number of cases, including as recently as 1991. In Louis de Raedt v Union of India, a Belgian missionary who had been living in India since 1937, petitioned the court in 1987 claiming that he had, on 26 November 1949, become a citizen under Article 5(e) of the Constitution.14 The Supreme Court ruled that mere residence in the country did not constitute domicile; it must be accompanied by the intention to make a permanent home in the country, which de Raedt had not demonstrated. The Court’s verdict was that de Raedt had applied for a one-year extension of his permission as recently as 1980, which did not indicate a decision to reside permanently in India. At best it indicated the petitioner’s uncertainty about his permanent home:

For the acquisition of a domicile of choice, it must be shown that the person concerned had a certain state of mind, the animus manendi. If he claims that he acquired a new domicile at a particular time, he must prove that he had formed the intention of making his permanent home in the country of residence and of continuing to reside there permanently. Residence alone, unaccompanied by this state of mind, is insufficient.15

While intent or animus manendi was an important consideration in several cases, the Supreme Court had held, as early as 1955, that both factum and animus were essential, and neither by itself was sufficient. In Central Bank of India v Ram Narain, Ram Narain was being tried in India for an offence committed in Pakistan in November 1947.16 On behalf (p. 169) of his firm, Ram Narain had taken an advance from the Central Bank of India in Multan District, against stocks (bales of cotton). In the disturbances that occurred during the Partition, the guard of the bank’s warehouse fled and the stocks disappeared. In January 1948, an inquiry found that Ram Narain himself had stolen the goods and booked them to Karachi. Ram Narain had already moved his family to Gurgaon, India, and himself moved to India in November 1947. The Bank demanded that he refund the money, but to no avail. It then got a sanction from the government of East Punjab to prosecute Ram Narain, whose plea was that he was not an Indian citizen, but a Pakistani national, at the time of the offence and therefore Indian courts did not have jurisdiction. The High Court upheld this plea, arguing that the courts had no jurisdiction over an accused who was not a citizen of India at the time of the commission of the offence. The Supreme Court dismissed the Bank’s appeal, saying that both factum and animus were essential, and that in this case even if animus could be inferred from Ram Narain relocating his family to India in advance of his own move, the factum was found wanting and hence it could not be established that he was indeed domiciled in India at the time the offence was committed.17

It is worth noting that the domicile of women and minor children was inferred from the domicile of their husbands and fathers, respectively. A woman migrating from India to Pakistan with her husband in December 1947 would lose her Indian domicile and terminate her citizenship by virtue of such a move. However, Article 7 overrides Article 5, and domicile is not a criterion in Articles 6 and 7. This means that if a woman, born and domiciled in India, migrated to Pakistan after 1 March 1947, she would lose her Indian citizenship and domicile even if her husband remained in India. Minors were also considered to have migrated if they accompanied their fathers, though there was uncertainty about situations in which a minor migrated to Pakistan independently of his father, who remained in India. Could such a minor be deemed to have migrated, or to have formed an intention to make Pakistan his permanent home? In Rashid Hassan Roomi v Union of India, the petitioner was the son of Indian parents who had lived in India for five years before the commencement of the Constitution.18 His father migrated to Pakistan, while the son continued to live in India, and eventually went on to become the Chairman of the Town Area Committee. He retained his domicile and citizenship on the grounds that his father had deserted him.19

The relationship between domicile and migration was no more obvious than that between domicile and citizenship. In Shanno Devi v Mangal Sain, the Court adopted a narrow interpretation, in accordance with Article 6, defining migration as coming to India with the intent of permanent residence.20 In Kulathil Mammu v State of Kerala, by contrast, (p. 170) a broader view prevailed as the Court interpreted migration as coming and going from one territory to another, a meaning that could attach to both Articles 6 and 7 without bringing in the concept of domicile.21 This was justified by the argument that both these Articles began with a non obstante clause, as they were designed to deal with the abnormal situation of movement of populations between India and Pakistan. This particular case pertained to a twelve-year-old boy who had migrated to Pakistan with his father in 1948, had returned to India on a Pakistani passport with an Indian visa, gone back and forth a few times, and finally returned to live in India. In October 1964, Aboobacker (whose father had held Indian nationality but was by now dead) was arrested and detained by the State government. His plea before the court that he was an Indian citizen and ‘had simply gone to Karachi in search of livelihood as he was poor’ was contested by the State, which treated his migration as intentional and therefore not attracting the provisions of Article 7.22 The Kerala High Court had upheld the State’s view, but the Supreme Court settled on a wider interpretation that focused only on movement from one place to another ‘whether or not there is any intention of settlement in the place to which one moves’ and held that such an interpretation was indeed the intent of the Constitution makers.23 The wide interpretation adopted in this verdict then implied that the idea of animus manendi did not apply in the abnormal situation of the Partition.24

A piece of evidence that was frequently cited in judicial decisions at this time as a decisive criterion for determining intention was the passport. In the case of the Belgian missionary Louis de Raedt, it was argued on behalf of the petitioner that his case could not be rejected only because he held a foreign passport. Around the time of the Partition, people often had to acquire a Pakistani passport in order to return to India. In some cases, such as State of Andhra Pradesh v Abdul, the court took the view that passports were not conclusive evidence of the person having voluntarily obtained Pakistani citizenship or of having renounced Indian nationality.25 In others, such as Izhar Ahmad Khan v Union of India, the possession of a Pakistani passport was interpreted as evidence of such volition and intent.26 In State of Gujarat v Saiyad Aga Mohmed Saiyed Mohmed, the Supreme Court prevented the government from deporting the plaintiff, despite his possessing a Pakistani passport because:

If a plea is raised by the citizen that he had not voluntarily obtained the passport, the citizen must be afforded an opportunity to prove that fact. Cases may be visualized in which on account of force a person may be compelled or on account of fraud or misrepresentation he may be induced, without any intention of renunciation of his Indian citizenship to obtain a passport from a foreign country.27

In section III, we shall see how the exercise of judicial reasoning in the early decades is, on some of these terms, inverted when the determination of citizenship for people presumed to be illegal immigrants from Bangladesh comes to be litigated.

(p. 171) III. Citizenship Laws for Ordinary Times

The Citizenship Act 1955 was enacted in pursuance of Article 11 of the Constitution. It provides for the acquisition of citizenship in five ways: by birth, descent, registration, naturalisation, and the incorporation of territory. The most significant amendments to the Citizenship Act have been to Sections 3 (citizenship by birth) and 6 (citizenship by naturalisation) to address concerns about illegal immigration from Bangladesh. Section 7 (citizenship by incorporation of territory) has also been substantively amended to provide for overseas citizenship of India.

There were originally two exceptions to citizenship by birth: (a) if the father possessed diplomatic immunity and was not an Indian citizen; and (b) if the father was an enemy alien and the birth occurred at a place under enemy occupation. While these (obviously infrequent) exceptions remain, another set of exceptions was later introduced that have immediate relevance to migrants from Bangladesh. This is expressed in two sub-clauses of the amended Section 3, which now accords citizenship to those persons born in India (a) on or after 26 January 1950 and before 1 July 1987; (b) those born on or after 1 July 1987 but before the commencement of the Citizenship (Amendment) Act 2003 and ‘either of whose parents is a citizen of India at the time of his birth’; and, in 3(c):

[O]n or after the commencement of the Citizenship (Amendment) Act, 2003, where

  1. (i) both of his parents are citizens of India;

  2. (ii) one of whose parents is a citizen of India and the other is not an illegal migrant at the time of his birth.

While Section 3(b) gives citizenship to those born in India before the amendment of 2003 with either parent being a citizen of India at the time of his birth, 3(c) excludes all those born after the commencement of the amendment of 2003 with one parent who is an illegal migrant at the time of their birth. The explanation to this lies in the amendment to the provision relating to citizenship by naturalisation in Section 6 of the Citizenship Act.

Meanwhile, Section 4 relating to citizenship by descent for persons born outside India to Indian parents has been rendered gender-neutral. Until 1992, this applied to persons whose father was a citizen of India at the time of his birth. Since 1992, citizenship by descent is available to those born outside India either of whose parents is a citizen of India at the time of his birth. In 2004 and 2005, the provisions of citizenship by registration (Section 5) were amended to, on the one hand, exclude from such citizenship any person who is an illegal migrant and, on the other, to lower the residence requirement for a person registered as an overseas citizen of India (for five years) from two years to one.

The most significant amendments to the Act have, however, been to the provisions of Section 6, which deals with citizenship by naturalisation. Section 6A was introduced in 1985 to make special provisions for the citizenship of those covered by the Assam Accord. Migration from Bangladesh peaked in 1971 (at the time of the break-up of Pakistan) and continued steadily thereafter. The subsequent enfranchisement of large numbers of refugees/migrants took on a communal colour and generated massive protests by the All Assam Students’ Union, between 1979 and 1985, against the swamping of Assam by ‘foreigners’. In February 1983, in the midst of elections based on electoral rolls that allegedly (p. 172) included a large number of ‘illegal’ voters, a terrible massacre took place in Nellie, killing over 2,000 people.

The Assam Accord, the political settlement arrived at between the Assam movement and the central and State governments, provided that (a) all those who had migrated before 1966 would be treated as citizens; (b) those who had migrated between 1966 and 1971 could stay by putting themselves through the designated process of registration as foreigners; and (c) all those who migrated after 1971 would be deemed to be illegal immigrants. The numbers of such illegal immigrants are commonly estimated to be upward of 10 million. Many of them had acquired forms of what Kamal Sadiq has called ‘documentary citizenship’, including ration cards and election cards, which had enabled them to vote in elections.28 The amendment to the Citizenship Act in 1985 was intended to ensure that the names of those who came in after 1966 would be deleted from the electoral roll. Such persons would then have to wait for a period of ten years from their ‘detection’ as a foreigner before becoming legal citizens and voters once again.

In 2004, the section on Citizenship by the Incorporation of Territory into India was substantially amended to include a section (7A) on the registration of Overseas Citizens of India. This provides for any person who is an adult citizen of another country but either was eligible to be a citizen at the time of the commencement of the Constitution or is a child or grandchild of such a citizen. A year later, the Union government specified the rights of such citizens, which include the grant of a lifelong multiple-entry visa to India, but exclude such citizens from voting or contesting election to public office or recruitment to government jobs. Citizens of Pakistan and Bangladesh, or even those who have ever held citizenship of these two countries, are ineligible for registration as overseas citizens of India.

The restrictions on citizenship for migrants deemed to be illegal, on the one hand, and the expansion of citizenship to include the diaspora, on the other, are suggestive of a dilution of the jus soli principle established in the Constitution and an increasing recognition of elements of jus sanguinis. Section IV of the chapter discusses three issues that are indicative of such a move from jus soli to jus sanguinis in the citizenship law of India.

IV. Three Paths to Jus Sanguinis

Two of three paths to jus sanguinis have been briefly mentioned in section III. These are, first, the constraint applied to the jus soli principle by the provision excluding from citizenship those Indian-born persons one of whose parents is an illegal migrant at the time of their birth; and, secondly, the provisions relating to overseas citizenship of India, which give recognition to members of the diaspora who have not been born in India but are children or grandchildren of those who have. The third aspect of the citizenship law that indicates such a move is contained in the 2004 amendment to the Citizenship Rules 1956 in respect of their application to the States of Gujarat and Rajasthan. In this section, I first return to the (p. 173) amendments excluding the Indian-born children of illegal migrants, and the events leading up to these; then turn to the amendments to the Citizenship Rules for migrants from Pakistan to Rajasthan and Gujarat; and finally to the amendments relating to Overseas Citizenship.

The amended Citizenship Act is not shy of acknowledging that these amendments or ‘special provisions’ are a product of the Assam Accord. As such, the reference to illegal migrants is a thinly veiled reference to Muslim migrants. In the earlier section we noted that a large number of these migrants had acquired the franchise by means that Sadiq has labelled as ‘networks of profit’ and ‘networks of complicity’.29 In other words, kinship networks and money were reasonable guarantees of registration on the electoral rolls. Assiduously courted by the Congress Party, the vulnerability of these people on account of their religious identity had made them Congress sympathisers and eager voters. In 1983, the Congress government at the Centre responded to the political unrest in Assam by enacting the Illegal Migrants (Determination by Tribunals) Act (IMDT Act), which provided for complaints about illegal migrants to be filed and adjudicated by tribunals especially instituted to detect and expel foreigners. While this conveyed the impression of assuaging nativist Assamese sentiment, networks of ethnic solidarity could be and were relied upon to render such complaints meaningless. The law also entailed making an Assam-specific exception to India’s law on foreigners, which ordinarily places the burden of proving citizenship status on the individual in question. The IMDT Act removed the burden of proving their citizenship from the persons suspected of being illegal immigrants. The presence of illegal immigrants in the area could now be reported by their neighbours, and if the tribunal decided, upon its examination of the complaint, that the person so accused was indeed an illegal migrant, it had the power to order his/her deportation.

The IMDT Act was challenged in the Supreme Court by a writ petition filed by Sarbananda Sonowal, one of the leaders of the students’ agitation against immigration. The plea was that the Act was ultra vires the Constitution, because it made it ‘impossible for citizens who are resident in Assam to secure the detection and deportation of foreigners from Indian soil’.30 Its legality was brought into question because though the professed aim of the IMDT Act was to facilitate the detection and deportation of illegal foreign migrants in Assam, the procedure prescribed here did not conform to the Foreigners Act 1946, which is applicable to all foreigners throughout India. An exception had effectively been made for non-Indians who had entered Assam clandestinely after 1971 and were alleged to have brought about a change in the ‘whole character, cultural and ethnic composition of the area’.31 Such migration, it was claimed, had the potential to create internal disturbance, and should be treated as aggression under Article 355 of the Constitution, which binds the Union to protect States against such aggression.

The petition was supported by the National Democratic Alliance coalition, headed by the Hindu nationalist Bharatiya Janata Party (BJP) when it came to office at the Centre. The new government communicated to the Supreme Court its intention to repeal the Act both because of the internal security implications of the population influx, and also because the application of the Act to only one State was clearly discriminatory.32 In 2000, the State (p. 174) government headed by the Asom Gana Parishad (AGP) (the All Assam Students’ Union grown into a political party) claimed that the provisions of the IMDT Act actually protected illegal migrants. To support its case that the small numbers of foreigners detected and deported could be directly attributed to the provisions of the Act, it showed that while it had initiated 310,759 inquiries, the total number of people declared to be illegal immigrants was 10,015, of whom only 1,481 had actually been expelled. The Court was therefore asked to order a repeal of the IMDT Act for being ‘an ineffective piece of legislation’, which was obstructing rather than facilitating the detection, deportation, and the deletion of the names of illegal migrants from the electoral rolls.33

Religious bias was writ large in the claim, common enough in contemporary political discourse, that while the Hindu population of the State had risen by 41.89 per cent during 1971–91, the Muslim population of Assam had risen 77.42 per cent during the same period.34 In 2004, the Congress Party returned to power at the Centre, and informed the Supreme Court that the Union government would retain the IMDT Act in its current form. Thus, the AGP and the BJP interpreted the small numbers actually deported as a sign that the Act was performing its intended purpose of protecting illegal immigrants for electoral gain for the Congress Party. For its part, the Congress interpreted the same small numbers of those deported as showing that the Act was effective in ensuring that true Indians were not wrongfully deported on the suspicion of being foreigners.

The case was decided in 2005, with the Supreme Court striking down the Act as ultra vires the Constitution and transferring all cases pending before the tribunals to the tribunals constituted under the Foreigners (Tribunals) Order 1964 to be decided in the manner provided in the Foreigners Act. The Court concerned itself chiefly with determining the constitutional validity of the Act and especially the question of its applicability only to the State of Assam, thus creating a State-specific exception to a national law. It ruled that the Act violated Article 14 of the Constitution to the extent that the exception was based solely on geography rather than any substantive connection with the object and policy of the Act.35 It refused to entertain any consideration of the election manifesto of a political party as a relevant factor in judging the constitutional validity of any law.36 The judgment affirmed the procedure laid down in the Foreigners Act, which places the burden of proving citizenship upon the person in question, and noted that not only did the IMDT Act not contain any provision similar to Section 9 of the Foreigners Act regarding burden of proof, but that it was also ‘conspicuously silent about it’.37 This, it argued, placed a very heavy burden on both the applicant and the authorities of the State to prove that a person is an illegal migrant liable for deportation. Indeed, said the Court:

Not every person feels that he owes a duty towards the nation and he should initiate proceedings for deportation of an illegal migrant. The applicant also incurs risk to his own security and safety besides spending time and energy in prosecuting the matter … This shows how one-sided the provisions of the IMDT Act are. They have been so made that they only result in giving advantage and benefits to an illegal migrant and not for achieving the real objective of (p. 175) the enactment, namely, of detection and deportation of a Bangladeshi national who has illegally crossed the border on or after 25th March, 1971.38

Accordingly, the Court upheld the contention of the petitioners that the Act itself was the biggest obstacle to the identification and deportation of illegal migrants, that citizens were hardly likely to initiate such proceedings for deportation, and that, as it had resulted in expulsions in less than half of one per cent of all cases initiated, the Act seemed to have been deliberately designed to protect and shelter illegal migrants rather than to identify and deport them.39

The verdict quoted extensively from a 1998 report of the Governor of Assam, stating that the illegal migrants coming into Assam from Bangladesh were ‘almost exclusively Muslims’.40 The xenophobic sentiments expressed in the report raised fears of swamping, and even terror:

The influx of these illegal migrants is turning these districts into a Muslim majority region. It will then only be a matter of time when a demand for their merger with Bangladesh may be made. The rapid growth of international Islamic fundamentalism may provide for [sic] driving force for this demand.41

The view that the illegal migrants had reduced the people of Assam to a minority in their own State was endorsed by the Supreme Court, which echoed the petitioner’s concern that their presence represented a threat of ‘external aggression and internal disturbance’.42 It thus came to the conclusion that the IMDT Act contravened Article 355 of the Constitution, which mandates the Union government to protect States against external aggression and internal disturbance.43 However, the fact that the IMDT Act was struck down by the Court has had no impact whatever on the law on citizenship, in particular the 2004 amendment to the Citizenship Act that modifies the provision of citizenship by birth to exclude from it such persons born in India as have one parent who is an illegal migrant at the time of their birth (Section 3(c)(ii)).

It is instructive to contrast this with the amendments to the Citizenship Rules. These were enacted to address the claims to citizenship of Hindu migrants from Pakistan migrating across the western border into the States of Rajasthan and Gujarat.44 This region has experienced several waves of such immigration: from the wars between India and Pakistan in 1965 and 1971, and most recently after the demolition of the Babri Masjid in Ayodhya in December 1992. Following this event, the insecurity of members of the Muslim minority in India found parallels in the insecurity of the Hindu minority in Pakistan, approximately 17,000 of whom migrated to India. Most of these people, being Pakistani passport holders, travelled on Indian visas that they simply overstayed. They then became applicants for citizenship. The Union government had already, in response to the widespread allegations about the manipulation of citizenship certification in Assam, withdrawn to itself the powers of district collectors all across India to confer citizenship in accordance with the law. To enable the grant of citizenship by District Collectors in Rajasthan and (p. 176) Gujarat, the Union government had to make an exception to this withdrawal of powers, and this was accomplished in 2004, through an amendment to the Citizenship Rules 1956, for a specified and limited period and within a limited jurisdiction. This made it possible for District Collectors in these specific States to hold ‘Citizenship Camps’ to process the applications for citizenship of these migrants from Pakistan. There still remain a few thousand people who are awaiting the legalisation of their citizen status. The most significant feature of this amendment is its open declaration of the religious identity of the migrants. Until this point, and to the present as far as the main Act is concerned, the religious identity of migrants (illegal or otherwise) was covertly indicated, but never explicitly mentioned. The 2004 amendment to the Rules dispenses with such signalling. It even avoids the description of these people as migrants, much less illegal migrants, the coded ‘dog-whistle’ label used to indicate immigrants from Bangladesh. Rule 8A of the Citizenship Rules 1956 reads:

In respect of minority Hindus with Pakistan citizenship who have migrated to India more than five years back with the intention of permanently settling down in India and have applied for Indian citizenship, the authority to register a person as a citizen of India … shall be the concerned Collector of the district where the applicant is normally resident.45

Let us return to Article 7 of the Constitution and compare the amended Rules to what was once described as ‘the obnoxious clause’:

Notwithstanding anything in articles 5 and 6, a person who has after the first day of March, 1947, migrated from the territory of India to the territory now included in Pakistan shall not be deemed to be a citizen of India:

Provided that nothing in this article shall apply to a person who, after having so migrated to the territory now included in Pakistan, has 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, 1948.46

A quick reading shows that though the history of the Partition and the debates in the Constituent Assembly make it clear that Article 7 of the Constitution was intended to cover returning Muslims who had migrated to Pakistan, it forbore from making any mention of the religious identity of these people. The amendment to the Citizenship Rules, by contrast, does not hesitate to assume and name the religious identity of the recent migrants from Pakistan, who are explicitly referred to as ‘minority Hindus with Pakistan citizenship’. Further, recall the repeated questioning of the intention of returning Muslims, both in the Constituent Assembly as well as in a vast range of case law. By contrast, the Hindu migrants are not required to prove their intention to permanently settle in India so long as they have been resident for at least five years. The requirement for a permit of resettlement has naturally been done away with.

In both these amendments to the Citizenship Act and the Citizenship Rules, it is clear that elements of jus sanguinis have infiltrated the constitutional regime of jus soli. On the (p. 177) one hand, persons born in India but with one parent who is an illegal migrant at the time of their birth have become ineligible for citizenship. On the other hand, a special dispensation has been made for ‘minority Hindus with Pakistan citizenship’. Both these, one covert and the other explicit, suggest that religious identity has acquired a greater role in the construction of legal citizenship than might be supposed by simply looking at apparently identity-neutral constitutional provisions.

A third path to jus sanguinis has become manifest in the amendment of Section 7 of the Act, allowing for Overseas Citizenship of India. This is by no means dual citizenship. The website of the Ministry of Overseas Indian Affairs is at pains to labour the point that ‘OCI is not to be misconstrued as “dual citizenship” ’.47 Despite political promises made and reiterated over the years, India still has a regime of single citizenship and does not recognise dual citizenship. This means that unlike, for instance, the possibility of an American citizen being also simultaneously a German or Irish citizen, or the possibility of a Pakistani citizen being simultaneously a British citizen, Indian law requires that an Indian citizen who is acquiring British or American citizenship must renounce her Indian citizenship. Moreover, persons who have at any time held citizenship in Bangladesh or Pakistan are specifically excluded from the purview of this provision.

Around the time India became independent, it had been the consistent position of its political leadership that Indians living in other countries must give their complete allegiance to their adoptive homes. This position was adopted despite the anxiety of Indians in other countries of south and south-east Asia, as well as Africa, of being rendered second-class citizens in the countries where they lived. There was a shift in this approach when India was facing international sanctions for its nuclear tests. In 1998, the then Prime Minister announced the constitution of a high-level committee to examine the question of dual citizenship for Non-Resident Indians (NRIs), Indians who live abroad even as they retain their Indian citizenship. The government floated the Resurgent India Bonds scheme to attract investment but these were offered only to select Indians (NRIs as well as former citizens) in the US, Canada, and Europe. The explicit exclusion of citizens of the less prosperous members of the diaspora in places like the Caribbean, Mauritius, and Fiji, elicited accusations of ‘dollar and pound apartheid’. The high interest rates and tax exemptions offered by the bonds scheme made it hugely popular and the success of the scheme led to a second, the India Millennium Deposit scheme, in 2000. Together, these two bonds schemes raised close to USD 10 billion. The demand for dual citizenship from such Indians has been a long-standing one.

Meanwhile, the High Level Committee on the Indian Diaspora submitted its report (also known as the Singhvi Report) in 2001.48 Lyrically eulogising the diaspora as the ‘National Reserve of India’ and ‘the National Resource of India’, the report recommended dual citizenship by an amendment to the Citizenship Act.49 The substantive argument made in support of dual citizenship invoked the bonds of emotion that tied the emigrants to their land of origin, and referred to their desire for dual nationality as ‘a higher form of the (p. 178) acknowledgement of their linkage with Mother India’.50 The Singhvi Report rejected outright such arguments against dual citizenship as referred to national security concerns. In fact, it remarked that the IMDT Act (which was still undecided in court at the time) had failed to check illegal migration into the country. By contrast, people entering the country with dual citizenship would, it argued, be easier to monitor and regulate. It also betrayed a class bias in promising that the process of dual citizenship would be extremely selective. For instance, those whose ancestry could be traced back to first-wave émigrés (indentured labourers) would be kept out. As regards the common anxieties about divided allegiance and disloyalty, the Singhvi Report offered the assurance that overseas citizens would not be allowed to join the bureaucracy, the police force, or the defence services. It specifically ruled out the grant of political rights such as the right to vote or hold public office for these groups.51

In 2002, a scheme was inaugurated allowing for individuals of Indian origin in a select group of sixteen countries, all advanced industrial societies of the global North, to be registered as Persons of Indian Origin (PIOs). The justification for the choice of countries invoked the principle of reciprocity in that it was limited to those that recognised dual citizenship. In 2005, the Citizenship Act was amended to introduce the category of ‘Overseas Citizen of India (OCI)’, and the privileges accompanying the status were expanded. Today, it is only those individuals who are or have been at any previous time citizens of Pakistan or Bangladesh that continue to be excluded from this.

In Talat Jamal Siddiqui v Union of India (2011) the Delhi High Court upheld a rejection order of the government that denied a PIO card to a woman holding a British passport, because she had once held a Pakistani passport.52 This was despite the fact that both her parents were born in pre-Independence India, that she was the spouse of a PIO, and the parent of two PIOs. Among the grounds on which the petitioner contested the rejection in the High Court was the gendered language used in the official notification, claiming that the use of words such as ‘he’ and ‘himself’ clearly did not apply to her. The Court was unfortunately not persuaded even to the modest extent of ordering a gender-neutral rewriting of the rules.

Over the past decade, overseas Indians have clamoured for dual citizenship, and rhetorical promises to this effect have in fact been made, almost on an annual basis. Some OCIs, professionals such as doctors and dentists, advocates, and chartered accountants, have been given permission to practise their professions in India.53 The rights that OCIs do not enjoy include the right to vote and the right to contest elections for political office. They are also ‘normally’ ineligible for public employment, though exceptions can and have been made from time to time. OCIs also do not have the duty to pay taxes. Nevertheless, the manifestly greater engagement of the diaspora in a range of political activities in recent times—from mobilising funding to providing technical expertise for election campaigns—suggests that members of the diaspora have, even without dual citizenship, become more politically engaged in India. This may well betoken the impending realisation of dual citizenship.

(p. 179) V. Conclusion

The core features of contestation and the central anxieties around the legal status of citizenship in India exhibit some significant continuities and inversions. Some of the core principles on which judicial verdicts were based in the early decades after the adoption of the Constitution retain their centrality even as they come to be inverted after the 1990s. Two examples will suffice to demonstrate this. In the earlier phase, courts viewed an individual’s possession of a Pakistani passport in either of two ways: as something that indicated that individual’s intention to permanently settle in Pakistan or, more uncommonly, as something that had been acquired more or less involuntarily. In 1991, the court saw de Raedt’s possession of a Belgian passport as conclusive evidence showing that he never had the intention to permanently reside in India. Now, even the possession of an Indian passport has lost its evidentiary value. The courts have expressed cynicism about the Indian passports offered by individuals (alleged to be illegal immigrants from Bangladesh) as proof of their Indian citizenship. In Motimiya Rahim Miya v State of Maharashtra,54 as also in Razia Begum v State,55 the courts have ruled that Indian passports may have been acquired by misrepresentation and fraud. ‘Documentary’ citizenship thus comes to be mistrusted, with passports being potentially as compromised as ration cards and election cards.56

Similarly, the question of intention to settle has retained its importance, albeit in an inverted manner. In the post-Partition period, as we have seen, the determination of citizenship rested heavily on the intent to permanently settle. Intention was positively valued as a condition of entry into the privileged circle of citizenship. In the present, such intention continues to carry positive connotations with reference to the Hindu migrants from Pakistan who, as the amended Citizenship Rules say, have come with ‘the intention of permanently settling down in India’. However, in the context of Bangladeshi immigration, the intention to permanently settle by acquiring a ration card, election card, or passport, is a matter for suspicion. Intention is here ascribed and deployed to deny, rather than affirm, claims to citizenship.

This chapter has sought to demonstrate the contention over citizenship from the Constituent Assembly to the present. It has also shown that the divisive legacy of the Partition and the religious identities implicated in it continue to lie at the core of this contention. This is the reason why, despite the victory of the jus soli conception of citizenship at the constitution-making stage, there has been a gradual and subtle shift towards a jus sanguinis conception. While jus soli remains the governing principle of citizenship in India, citizenship law and jurisprudence have come to be manifestly inflected by elements of jus sanguinis. Whether it is the issue of ‘illegal immigrants’ from Bangladesh on the eastern border of India, or that of ‘minority Hindus with Pakistan citizenship’ on the western border, the law and rules have tended to view these very differently, seeing the latter (but not the former) as people with a rightful claim on Indian citizenship. This accenting of Indian citizenship with jus sanguinis is reflected also in the expansive approach latterly adopted towards the Indian diaspora.

Notes:

(1) Constituent Assembly Debates, vol 9 (Lok Sabha Secretariat 1986) 347, 10 August 1949.

(2) 60 US 393 (1857). S 1 of the Fourteenth Amendment to the United States Constitution read: ‘All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.’ Rogers M Smith’s magisterial history of American citizenship, however, provides a compelling account of the ambiguities in the Fourteenth Amendment in relation to foreign-born blacks as well as tribes. Rogers M Smith, Civic Ideals: Conflicting Visions of Citizenship in US History (Yale University Press 1997) ch 10.

(3) Constituent Assembly Debates, vol 9 (Lok Sabha Secretariat 1986) 347, 10 August 1949.

(4) B Shiva Rao, The Framing of India’s Constitution: A Study (Indian Institute of Public Administration 1968) 152.

(5) See Constituent Assembly Debates, vol 2 (Lok Sabha Secretariat 1986) 338, 30 August 1947. In the discussion on fundamental rights, B Das said:

Many things have happened since we discussed Fundamental Rights in April last. India has been divided up and Indian citizens who are born in both parts of India now can claim citizenship in either Pakistan or Hindustan. There may be families that may have a brother in Pakistan acquiring the citizenship of Pakistan while others may be citizens of India. So it is natural that Government should legislate that everybody must declare whether he is a citizen of Pakistan or Hindustan. One would not like the best brains of India to go to Pakistan and when they come back to India will they be taken as Indians or only recognized as citizens of Pakistan because they have served after the separation in that country?

(6) Constituent Assembly Debates, vol 9 (Lok Sabha Secretariat 1986) 347, 29 April 1947.

(7) We retain here the constitutional usage of the masculine gender with some unease and only in the context of the constitutional provisions.

(8) Constitution of India 1950, art 11.

(9) Vazira Fazila-Yacoobali Zamindar, The Long Partition and the Making of Modern South Asia: Refugees, Boundaries, Histories (Viking Books 2007) 86.

(10) Constituent Assembly Debates, vol 9 (Lok Sabha Secretariat 1986) 366, 11 August 1949.

(11) AIR 1955 SC 36 [11].

(12) State Trading Corporation of India v The Commercial Tax Officer, AIR 1963 SC 1811.

(13) HM Seervai, Constitutional Law of India, vol 1 (4th edn, Universal Book Traders 2002) 319–25.

(14) (1991) 3 SCC 554.

(15) Louis de Raedt (n 14) [10].

(16) AIR 1955 SC 36.

(17) Central Bank of India (n 16) [11].

(18) AIR 1967 All 154.

(19) The presumption of equivalence between domicile and citizenship also provoked the question of whether a single all-India citizenship implied that an individual could not be domiciled in a particular State. This came up as a Conflict of Laws question in DP Joshi v Madhya Bharat AIR 1955 SC 334, in which a constitutional bench of the Supreme Court upheld State domicile in relation to college admissions, ruling that domicile and citizenship were two distinct concepts and that discrimination based on residence was not violative of art 15(1). In Pradeep Jain v Union of India (1984) 3 SCC 654 [8], Bhagwati J stated that it was ‘highly detrimental to the unity and integrity of India to think in terms of state domicile’. Jurists have argued that the reality of legal pluralism—especially with respect to personal laws—makes State domicile compatible with all-India citizenship. See Seervai (n 13) 317–28.

(20) AIR 1961 SC 58.

(21) AIR 1966 SC 1614.

(22) Kulathil Mammu (n 21) [4].

(23) Kulathil Mammu (n 21) [5].

(24) Seervai (n 13) 331. Seervai was sharply critical of this judgment, which he argued wrongly overruled the verdict in Shanno Devi.

(25) AIR 1961 SC 1467.

(26) AIR 1962 SC 1052.

(27) (1979) 1 GLR 71 [15].

(28) Kamal Sadiq, Paper Citizens: How Illegal Immigrants Acquire Citizenship in Developing Countries (Oxford University Press 2009).

(29) Sadiq (n 28) 56–69.

(30) Sarbananda Sonowal v Union of India (2005) 5 SCC 665 [2].

(31) Sarbananda Sonowal (n 30) [2].

(32) Sarbananda Sonowal (n 30) [3].

(33) Sarbananda Sonowal (n 30) [8].

(34) Sarbananda Sonowal (n 30) [7].

(35) Sarbananda Sonowal (n 30) [70].

(36) Sarbananda Sonowal (n 30) [19].

(37) Sarbananda Sonowal (n 30) [40].

(38) Sarbananda Sonowal (n 30) [47].

(39) Sarbananda Sonowal (n 30) [47].

(40) Sarbananda Sonowal (n 30) [17].

(41) Sarbananda Sonowal (n 30) [17].

(42) Sarbananda Sonowal (n 30) [63].

(43) Sarbananda Sonowal (n 30) [67].

(44) For a detailed account of this case, see Niraja Gopal Jayal, Citizenship and its Discontents: An Indian History (Harvard University Press 2013) ch 3.

(45) Citizenship Rules 1956, rule 8A (emphasis added).

(46) Constitution of India 1950, art 7.

(47) The Ministry of Overseas Indian Affairs, ‘Overseas Citizenship of India Scheme’ <http://moia.gov.in/services.aspx?id1=35&id=m3&idp=35&mainid=23>, accessed October 2015.

(48) Government of India, Report of the High Level Committee on the Indian Diaspora <http://indiandiaspora.nic.in/contents.htm>, accessed October 2015.

(49) Report of the High Level Committee on the Indian Diaspora (n 48) 526.

(50) Report of the High Level Committee on the Indian Diaspora (n 48) 526.

(51) Report of the High Level Committee on the Indian Diaspora (n 48) 567.

(52) Talat Jamal Siddiqui v Union of India (Delhi High Court, 21 January 2011).

(53) Ministry of Overseas Indian Affairs, notification number SO 36E, Gazette of India, 6 January 2009.

(54) AIR 2004 Bom 260.

(55) (2008) 152 DLT 630.

(56) Sadiq (n 28).