The final list of Assam National Register of Citizens (NRC) has been released today. More than 19 lakh people have left out of the NRC. The Assam government has, however, assured that adequate support and aid will be provided to people who are excluded from the final NRC list. Amid this turmoil, it’s important to know how an Indian citizen is defined.
What is citizenship?
In a broader sense, the term ‘citizen’ means a resident of a city or a person who enjoys the privileges of living within the territorial limits of a state. The great philosopher Aristotle defined citizen as a person “who has the power to take part in the deliberative or judicial administration of any state is said by us to be a citizen of that state”.
Another Philosopher Vattal has defined citizens as, “the members of a civil society bound to this society by certain duties, subject to its authority and equal participants in its advantages”. “Citizenship”, according to Laski, “is the contribution of one’s instructed judgment to the public good”. It can be concluded that a citizen is a person who has the membership of a state, enjoys the social and political rights and is devoted to the state.
How is citizenship determined?
Citizenship is a significant bridge between an individual and the state. According to Article 5 of the Indian constitution,
“every person who has his domicile in the territory of India and— (a) who was born in the territory of India; or (b) either of whose parents was born in the territory of India; or (c) who has been ordinarily resident in the territory of India for not less than five years immediately preceding such commencement, shall be a citizen of India”.
Nationality law or citizenship law can be categorized into three principles:
1. Jus Soli or right by birth on the soil
2. Jus Sanguinis or right of blood
3. Jus Matriomii or right of marriage
The laws are made on the basis of these principles or on the combination of all the three across the globe. Since the Motilal Nehru Committee, 1928 the Indian leaders were in the favour of Jus Soli concept which emphasis right by birth on the soil. The Indian constitution gives various categories in Article 5 to Article 11 by which a person can be entitled to Indian citizenship. But Article 11 which states,
“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”
enables the parliament to go against the provisions of the constitution.
What is the Indian Citizenship Act?
The Indian Citizenship Act which was passed in 1955 and has been amended four times—in 1986, 2003, 2005 and 2015. The act gives the government the power to determine the citizenship of a person whose nationality is doubtful. The act categorizes citizenship on the basis of birth, descent, registration and naturalization. The act has also empowered the government to determine citizenship via the special provisions of citizenship in regard to the Assam accord.
The genesis of the Assam citizenship row
The historic Assam movement which is one of the popular post-colonial movements was against illegal immigration. The movement was led by All Assam Students Union (AASU) and All India Assam Gram Sangram Parishad (AAGSP) lasted for six years. The movement included protests to compel the Government of India to identify and expel the illegal immigrants and ensure the safety and security of indigenous Assamese people.
The movement ended on 15 August 1985 followed by Assam Accord which was signed by the protesting AASU-AAGSP and the then Prime Minister Rajiv Gandhi. This Assam Accord led to the amendment to the Citizenship Act creating a special provision of the people of Assam. A newly inserted Article 6A which states that,
“all persons of Indian origin who came before the 1st January, 1966 to Assam from the specified territory (including such of those whose names were included in the electoral rolls used for the purposes of the General Election to the House of the People held in 1967) and who have been ordinarily resident in Assam since the dates of their entry into Assam shall be deemed to be citizens of India as from the 1st day of January, 1966.”
The article also emphasized that those who came after 1 January 1966 but before March 25, 1966, and have been ordinary residents will get citizenship at the expiry of 10 years from their detection as a foreigner or else their name will be deleted forever. During the period, these people will be eligible to get an Indian Passport and will not have the right to vote.
How illegal immigrants identified?
The process of identification of the foreigners was wholly based under the Illegal Migrants (Determination by Tribunal) Act, (IMDT Act), 1983 which was applicable only in Assam. It was difficult to track and deport illegal immigrants due to the provisions of the IMDT Act. Sarbananda Sonowal who is currently the Chief Minister of Assam filed a petition in Supreme Court against the IMDT Act and in 2005, the act was held unconstitutional and was struck down. The act was replaced by Foreigners (Tribunal of Assam) Order, 2006 which was again struck down in 2007. The IMDT act which was considering geographic factors was, according to the Supreme Court, violating the Right to Equality under Article 14.
Article 6A: Basis of National Register of Citizens (NRC)
The final list of National Register of Citizens (NRC) which is based on Article 6A of the Citizenship Act, 1955 was released on Saturday. Meanwhile, a five-judge Bench of the Supreme Court is yet to examine the constitutional validity of the article. The bench which was headed by Justice Madan B Lokur held its hearing on 19 April 2017 but then it was dissolved due to the retirement of Justice PC Pant in August 2017. According to Assam Sanmilita Mahasangha (2014), the constitutionality of the 1986 amendment of the Citizenship Amendment Act was challenged.
The Mahasangha argued that the cut off year should be 1951 instead of 1971. The Supreme Court considered this challenge and referred the matter to the constitution bench. The court asked the constitution bench if Article 6A is valid as it prescribes a different cut off for Assam as compared to the rest of the country. But, Article 6A which was inserted in 1986 due to the Assam accord, was about the citizenship on commencement of the Constitution. Meanwhile, the validity of the article is still pending in court.