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Background

Citizenship is a crucial domain for any Nation across the globe. India being a developing country the degree of importance for ascertaining citizenship increases as there are certain rights pertaining to social security, employment etc which cannot be rolled out for citizens and non-citizens alike. Thus there has to be a guided norms for granting citizenship. In India, provisions for granting citizenship has passed through two phases. Firstly, there were constitutional provisions for granting citizenship at the time of advent of the constitution. When the then government of India enacted The Citizenship Act, 1955 which superseded the constitutional provisions for granting citizenship. Ever since this act came into existence, matters relating to determination and acquisition of citizenship has been dealt with vis a vis provisions mentioned thereunder.

Citizenship and Illegal Immigrants

Under the Citizenship Act, 1955 a person other than illegal immigrants, may obtain Indian citizenship if such a person is born in India while either of his/her parents are citizens of India and one among them is not an illegal immigrant[1], by way of descent, by registering with the concerned body provided such person fulfils the criteria mentioned thereunder and one who is not an illegal immigrant[2] and by naturalisation provided such a person is not an illegal immigrant[3].

A lot of emphasis has been laid when it comes to granting citizenship to an immigrant who happens to be on Indian soil without relevant documentation such as passport, visa, work permit and the like or a different categories of persons who arrived into Indian territory and possessed necessary documents but overstayed. The Foreigners Act 1946, empowers the central government to take actions against foreign nationals a few provisions of which extends to illegal immigrants as well. This act enables the central government to regulate, restrict and prohibit the arrival and departure of foreigners on Indian soil[4].

However commonwealth citizens may be exempted from a few or the entire batch of such orders formulated. Similarly matters concerning illegal immigrants can also be dealt with under the Passport (Entry into India) Act, 1920. The central government amended the two above mentioned acts to exclude what it preferred to call persecuted minority groups of Pakistan and Bangladesh, consisting of Hindus, Buddhists, Sikhs, Parsis (Zoroastrians), Jains, Christians etc[5]. Further the ambit of the said acts was enlarged by another order which extended immunity to people belonging to such groups from Afghanistan[6].

The Citizenship (Amendment) Act, 2019

The Citizenship Amendment Bill, 2019 (now an Act of parliament), is a corollary of the Citizenship Amendment Bill, 2016 which sought to alter the provisions of the Citizenship Act, 1955 by granting citizenship to illegal immigrants belonging to the six religious sects mentioned above, coming from Pakistan, Bangladesh and Afghanistan[7]. The bill could not be passed as the 16th Lok Sabha dissolved, while the bill was pending in Rajya Sabha. Subsequently, on 9th December, union minister of Home Affairs Amit Shah tabled the Citizenship Amendment Bill before the Lok Sabha, where the bill was passed after an intense twelve hour long debate and the same was followed by the bill being passed in the Rajya Sabha too followed by presidential assent making it an enacted law.

The Citizenship (Amendment) Act, 2019 aims to relax norms for acquiring citizenship by naturalisation for persons belonging to six religious sects that is, Hindus, Sikhs, Jains Buddhists, Parsis and Christians who fled to India from the neighbouring countries of Pakistan, Bangladesh and Afghanistan owing to religious persecution. The usual process was any person could acquire citizenship by way of naturalisation provided they are not illegal immigrants and have been in public service for twelve months before such application and for at least eleven years out of the preceding fourteen years. This requirement for the said illegal immigrants have been reduced by six years to being five years.

There are further changes which came into force with the advent of this act of parliament that are, such persons shall be deemed to be citizens of India from the date they entered into India and any legal proceedings the nature of which resonates to that of illegal immigrants under the Foreigners Act, 1946 or The Passport (Entry into India) Act, 1920, shall be dropped. Further, The base year for granting citizenship has been changed to 31st December 2014 which shows what was agreed upon when the Assam accord was signed in 1985 between the representatives of the then government of India and the members associated in the agitation of Assam. The Act further gives the centre capacious discretion when it comes to cancelling OCI status of an individual who violates any law as notified by the central government. This is a shift from the central government’s previous stand on the same law that was to include laws relating to citizenship act and other allied acts which may be notified by the central government from time to time.

Assam Accord, 1985

Rajiv Gandhi, the then Prime Minister of India meets with the Assam delegation.

Ever since India gained independence from the British crown Assam has been an epicentre for protests against illegal immigrants. The north eastern state has witnessed bouts of protest and agitation against infiltrators which forced the government of India back in 1950 to come up with Immigrants (Expulsion from Assam) Act, 1950 but the same proved to be futile and fresh protests and agitations tore the state apart on numerous occasions.

Agitations exponentially increased post 1979 when All Assam Students Union in unison with All Assam Gana Sangram Parishad spearheaded protests across the state making vociferous demands regarding identification and expulsion of illegal Bangladeshi immigrants irrespective of their religion. These agitations continued as representatives of the Indira Gandhi led central government could not reach a favourable agreement with representatives of various bodies of Assam. After series of deliberations between the centre and the state of Assam an accord now known as the Assam Accord was signed on 15th August 2015 which deals with issues such as identification of foreigners, deportation by lawful means, preservation of culture and the development of the states economy by way of constitutional and administrative methods.

Among other clauses, clause 5 and 6 form the core of the Assam Accord[8]. It contains provisions as to detection of foreigners who entered India illegally from Bangladesh and have been living there ever since. Those who were there in Assam as of 01.01.1996 they were to be regularised and those who came to Assam from 01.01.1966 to 24.03.1971 were to be detected as foreigners but they were not to be deported. As per the said clause, they were supposed to get themselves registered as foreigners and after expiry of ten years from such date of registration, they were supposed to be regularised and given back the right to vote which they were devoid of for the preceding ten years. The rest were supposed to be deported without any consideration on the basis of any special grounds[9]. This clause was followed by provisions to preserve and protect by constitutional and legislative measures the culture, script and the indigenous people residing in the state of Assam[10].

NRC in Assam

Residents of Assam line up to get their documents registered for the updation of NRC.

National Register of Citizens is a document consisting the names of original citizens of Assam which was for the first time taken up in 1951. When the exercise was taken up in Assam during the 1951 census those names were included who were born in India, either of whose parents were born in India or those who were ordinarily residents of India immediately preceding the cut off date[11]. In order to prove that they are original citizens of India a person must show that his or her name was present in the register of 1951 if not the names have to be there in the electoral rolls prepared in 1971. However, these two ways are not exhaustive and documents such as government issued identity cards, certificate of registration as a refugee, documents relating to permanent residence, tax receipts etc.

After 1951, the NRC was updated early in 2019 which has left nineteen lakh people who either could not find the relevant documents to support their claim or the information furnished by them was not sustainable owing to discrepancy. However, a person left out of the register is not declared a foreigner and is not detained on contrary to what is being claimed by media houses. Rather those left out can approach the Foreigner’s tribunal and only when a person has been declared as a foreigner by the concerned tribunal can the government of Assam detain them. However, a person can appeal against the decision of the foreigners tribunal at the High Court and subsequently at the Supreme Court if required[12].

Present Scenario

Protests continue at Delhi’s Shaheen Bagh.

After the Citizenship (Amendment) Act, 2019 came into force and it was announced by the Home Minister, that soon the procedure for NRC will start, widespread protests erupted across the nation and over the past couple of days have exponentially increased in parts of the National capital, Assam, Hyderabad and a few districts of Uttar Pradesh. The protestors seem to have created a tangent of their own whereby they have amalgamated the provisions of the amendment with a factious NRC, regarding which no law or procedure exists as of now.

The amendment may be challenged on legal grounds but misconceptions regarding the cut-off date of the Assam Accord is being portrayed as the cut-off date for the entire nation without any evidence. Keeping the legal and constitutional merits of the amendment aside, the act aims to give citizenship to persecuted minorities from the neighbouring countries of Pakistan, Bangladesh and Afghanistan and relaxes the norms for naturalisation and does not remove them altogether. An individual not falling within the six religious texts who fulfils the other criteria provided by the Act and is not an illegal immigrant may apply for citizenship and his or her application may be considered as well.

What has to be understood here is that the amendment tries to differentiate between refugees and illegal immigrants which has been neglected by the masses protesting against the bill and branding it as a communal tool. A fact which has surfaced right after the Act came into force was that the provision dilutes the Assam Accord. Upon careful scrutiny of the amendment one can find that the tribal areas of Assam, Meghalaya, Tripura and Mizoram which are contained in schedule six of the constitution has been excluded from the provisions of the act considering the interest of the indigenous people and in order to maintain the sanctity of clause 6 of the Assam Accord. Dissent is an essential domain of democracy but such dissent and protests have assumed the mantle of mobocracy and have claimed the so called right to vandalise public property as a constitutional right which has been fuelled on the basis of political motives. In a civilised democracy such as India, people are not expected to take law and order into their own hand and protest violently against something which they do not understand completely. It is the need of the hour that the partisan media keeps aside their economic goals and for once unites to give the public a clearer picture of the amendment in abstraction from NRC as it is non existent as of now and protests should not be based on something which does not exists. Furthermore people should try to get a clear picture of the law and understand that NRC in Assam is largely based on Assam Accord and no such agreement exists with any other state at present. Apart from that the law requires a person to prove his original citizenship and not that of his father or ancestors which has been misunderstood by a large group of people living in India.

A map of the North-East showing the areas protected under the ILP system.

[1] S. 3, The Indian Citizenship Act, 1955.

[2] S. 5, The Indian Citizenship Act, 1955.

[3] S. 6, The Indian Citizenship Act, 1955.

[4] S. 3 (1), The Foreigners Act, 1946.

[5] G.S.R. 685 (E) and G.S.R. 686 (E), Gazette of India, September 7, 2015, http://egazette.nic.in/WriteReadData/2015/165755.pdf; G.S.R. 702(E) and G.S.R. 703(E), Gazette of India, July 18, 2016, http://egazette.nic.in/WriteReadData/2016/170822.pdf.

[6] G.S.R. 685 (E) and G.S.R. 686 (E), Gazette of India, September 7, 2015, http://egazette.nic.in/WriteReadData/2015/165755.pdf; G.S.R. 702(E) and G.S.R. 703(E), Gazette of India, July 18, 2016, http://egazette.nic.in/WriteReadData/2016/170822.pdf.

[7] S. 6B, The Citizenship Act, 1955.

[8] What is Assam Accord of 1985 and how amended citizenship law changes it?, India Today, https://www.indiatoday.in/news-analysis/story/what-is-assam-accord-of-1985-and-how-amended-citizenship- law-challenges-it-1627965-2019-12-13 ,Last Seen on 20/12/2019.

[9] Clause 5, Assam Accord, 1985.

[10] Clause 6, Assam Accord, 1985.

[11] What is NRC, Business Standard, https://www.business-standard.com/about/what-is-nrc, Last seen on 20/12/2019.

[12] What is NRC, Business Standard, https://www.business-standard.com/about/what-is-nrc, Last seen on 20/12/2019.

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