Context:

• For reasons of both history and geography, citizenship, identity, and immigration have long been sensitive and flammable issues in Assam. The exercise to update the six-and-a-half-decade-old National Register of Citizens (NRC), the second draft of which is due to be out by the end of this month, and a controversial amendment proposed to the Citizenship Act, 1955, that seeks to selectively regularise some categories of illegal migration, have triggered a fresh wave of anxiety and unrest around these issues. What are the broad features of the concept of citizenship in the Constitution, and how have they played out in the specific context of Assam?

Who is a citizen in India’s constitutional scheme? What are various principles/kinds of citizenship?

• Citizenship defines the relationship of an individual with a political community, and signifies the individual’s full and equal membership of that community.
• A citizen is defined in opposition to an ‘alien’; the exclusion of aliens is central to the concept of modern citizenship.
• The Constitution gives some fundamental rights to non-citizens — the right to equality before the law (Article 14); protection of life and personal liberty (Article 21); freedom to manage religious affairs (Article 25), for example.
• However, some other fundamental rights, such as prohibition of discrimination on grounds of religion, race, caste, sex or place of birth (Article 15); equality of opportunity in matters of public employment (Article 16); and the six basic freedoms of speech and expression, peaceful assembly, forming associations or unions, movement, residence, and profession (subject to reasonable restrictions, Article 19), are available only to citizens.
• Also, only a citizen has the right to vote in elections to Lok Sabha and state Assemblies (Article 326), become a member of these Houses (Articles 84, 191d), and assume certain high offices such as those of President, Vice-President, Governor, and a judge of the higher judiciary.
• Under the principle of jus soli (right of the soil), citizenship belongs to everyone born in the territory of a state. Jus sanguinis (right of blood), on the other hand, gives prominence to ties of blood in the grant of citizenship. The “momentum” concept of citizenship underlines individualism, universality and equality, and obliterates identities of ethnicity, religion and caste. “Differentiated citizenship”, however, recognises and accommodates group identities typical of multicultural societies that may at times require differential treatment.

How did Partition and the large-scale migration from territories that became part of Pakistan impact citizenship?

• Articles 5-11 of the Constitution describe the various categories of persons who are entitled to citizenship. These were enforced on November 26, 1949, ahead of the commencement of the Constitution on January 26, 1950.
• Article 11 empowers Parliament to regulate citizenship by law; the Citizenship Act was, therefore, passed in 1955. It has since been amended 1986, 2003, 2005, and 2015.
• Article 5 provided for citizenship on the commencement of the Constitution: all those domiciled and born in India, either of whose parents was born in India, or anyone who had been ordinarily resident in India for at least five years preceding the commencement of the Constitution.
• Under Article 6, anyone who migrated to India before July 19, 1948, from territory that had become part Pakistan, automatically became a citizen if either of their parents or grandparents was born in India. But those who entered India after this date needed to register themselves.
• Those who had migrated to Pakistan after March 1, 1947, but had subsequently returned on resettlement permits, too, were included within the citizenship net (Article7). Under Article 8, a person of Indian origin residing outside India who, or any of whose parents or grandparents, was born in India can register as an Indian citizen with the relevant Indian diplomatic mission.

How did the situation in Assam impact the nature of citizenship?

• To protect the social and cultural interests of the Assamese people, Parliament enacted The Immigrants (Expulsion from Assam) Act in 1950, under which the central government could order the removal of any person who had come into Assam from outside India, and whose “stay… in Assam is detrimental to the interests of the general public of India or of any section thereof or of any Scheduled Tribe in Assam”.
• However, the aftermath of the Partition of India, including the failure of the two-nation theory that was manifested in the birth of Bangladesh, and the nature of the topography and porous border in the east, saw continued largescale infiltration into Assam — which triggered an agitation in the state that ultimately led to the signing of the Assam Accord of August 15, 1985.
• The 1986 amendment to the Citizenship Act, 1955, inserted Section 6A under which all persons of Indian origin who had entered Assam before January 1, 1966 and been its ordinary residents were deemed to be Indian citizens; those who came after January 1, 1966, but before March 25, 1971, were to get citizenship upon registration at the expiry of 10 years after their detection as foreigner; and those who entered after March 25, 1971, upon identification under the Illegal Migrant (Determination by Tribunal) (IMDT) Act, 1983, were to be deported.
• The 1986 amendment made the Citizenship Act less inclusive, by adding to the principle of jus soli the condition that in addition to one’s birth in India (for those born on or after July 1, 1987), at least one parent must be be an Indian citizen at the time of birth.
• The 2003 took it closer towards jus sanguinis and away from jus soli — for those born after the commencement of the Act, not only was at least one parent required to be an Indian citizen, the other could not be an illegal migrant. In 2004, Parliament was told that as of 2001, there were 1.2 crore illegal immigrants in India, of whom 50 lakh were in Assam.

What are some of the cases linked to citizenship in Assam that have gone to the Supreme Court?

• In 2005, a three-judge Bench led by Chief Justice of India R C Lahoti struck down the IMDT Act. It expressed concern over demographic change in Assam, and made references to “international Islamic fundamentalism” (Sarbananda Sonowal vs Union Of India & Anr, July 12, 2005; Sonowal, now Chief Minister of Assam, was then an Asom Gana Parishad MP).
• In 2007, the court quashed the Foreigners (Tribunals for Assam) Order, 2006, which put the onus of proving a person a foreigner on the complainant (Sonowal II, December 5, 2006).
• In Assam Sanmilita Mahasangha & Ors vs Union Of India & Ors, December 17, 2014, where the constitutionality of the 1986 amendment was challenged, the court referred the matter to a Constitution Bench.

What is the new proposed amendment to the Citizenship Act?

• The Citizenship (Amendment) Bill, 2016, seeks to amend the 1955 Act to permit members of six communities — Hindu, Sikh, Buddhist, Jain, Parsi and Christian — from Pakistan, Bangladesh and Afghanistan eligible for citizenship if they had entered the country before December 14, 2014.
• Under the original Act, an applicant seeking citizenship by naturalisation must have resided in India during the last 12 months, and for 11 of the previous 14 years.
• The proposed Bill relaxes the 11-year requirement to six years for applicants belonging to these six religious communities and three countries.
• Many organisations in Assam are up in arms against the proposed Bill, which they fear may trigger demographic change in Assam as illegal Bangladeshi Hindu migrants are granted citizenship. Several BJP allies are against the amendment; in Meghalaya, where the BJP is part of the government, the state cabinet took a decision to oppose the Bill. Enthusiasm for the Bill is largely restricted to the Bangla-speaking people in the Barak Valley.
• The Bill is unlikely to withstand scrutiny in court, as it discriminates against Muslims only on the grounds of religion, which is prohibited by Article 15(1) of the Constitution.