- Why it was in News?
- How is citizenship determined?
- Articles related to Citizenship
- What is different in Assam?
- Constitutionality of Section 6A
Who is an Indian citizen? How is it defined?
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Why it was in News?
- In the run-up to the publication of the final National Register of Citizens (NRC) in Assam, citizenship has become the most talked about topic in the country.
- While the Assam government has been taking steps for those left out of the NRC, Supreme Court recently rejected a plea to include those born in India between after March 24, 1971 and before July 1, 1987 unless they had ancestral links to India.
- In any other Indian state, they would have been citizens by birth, but the law is different for Assam.
How is citizenship determined?
- Citizenship is in the Union List under the Constitution and thus under the exclusive jurisdiction of Parliament.
- There are two well-known principles for grant of citizenship. While jus soli confers citizenship on the basis of place of birth, jus sanguinis gives recognition to blood ties.
- From the time of the Motilal Nehru Committee (1928), the Indian leadership was in favour of the concept of jus soli as the idea of jus sanguis was rejected by the Constituent Assembly as it was against the Indian ethos.
- The Constitution does not define the term ‘citizen’ but gives, in Articles 5 to 11, details of various categories of persons who are entitled to citizenship. Article 11 itself confers wide powers on Parliament to go against the citizenship provisions of the Constitution.
- Unlike other provisions of the Constitution, these articles were enforced on November 26, 1949 itself, when the Constitution was adopted.
Articles related to Citizenship
- It provided for citizenship on commencement of the Constitution.
- All those domiciled and born in India were given citizenship. Even those who were domiciled but not born in India, but either of whose parents was born in India, were considered citizens.
- Anyone who had been an ordinary resident for more than five years, too, was entitled to apply for citizenship.
- It laid down that anyone who migrated to India before July 19, 1949, would automatically become an Indian citizen if either of his parents or grandparents was born in India.
- But those who entered India after this date needed to register themselves.
- Even those who had migrated to Pakistan after March 1, 1947 but subsequently returned were granted Indian citizenship.
- Any Person of Indian Origin residing outside India who, or either of whose parents or grandparents, was born in India could register himself or herself as an Indian citizen.
- The 1986 amendment added the condition that those who were born in India on or after January 26, 1950 but before July 1, 1987, shall be Indian citizen.
- Those born after July 1, 1987 and before December 4, 2003, in addition to one’s own birth in India, can get citizenship, only if either of his parents was an Indian citizen at the time of birth.
- Keeping in view infiltration from Bangladesh, the government made amendment in the Citizenship Act, 1955.
- It requires that for those born on or after December 4, 2004, in addition to the fact of their own birth, both parents should be Indian citizens or one parent must be Indian citizen and other should not be an illegal migrant.
- In other words, an illegal migrant cannot claim citizenship by naturalisation or registration even if he has been a resident of India for seven years.
Citizenship (Amendment) Bill
- It proposes to permit members of six communities — Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Pakistan, Bangladesh and Afghanistan — to continue to live in India if they entered India before December 14, 2014.
- It also reduces the requirement for citizenship from 11 years out of the preceding 14 years, to just 6 years.
- Two notifications also exempted these migrants from the Passport Act and Foreigner Act.
- A large number of organisations in Assam protested against this Bill as it may grant citizenship to Bangladeshi Hindu illegal migrants.
What is different in Assam?
- In 1971, Bangladesh gained independence from Pakistan. The liberation war led to a massive influx of migrants to India until 1983.
- In 1983, the Parliament enacted the Illegal Migrants (Determination by Tribunal) Act (IMDT Act) which laid down the procedure to detect illegal immigrants from Bangladesh and expel them from Assam.
- This Act was applicable to only Assam, while the Foreigners Act, 1946 was applicable to all other states.
- The Assam Movement against illegal immigration eventually led to the historic Assam Accord of 1985 which created a special category of citizens in relation to Assam.
It inserted Section 6A in the Citizenship Act which decided three classes of immigrants:
- Those who came into the state before 1966 will be citizens of India.
- Those who came into the state between 1966 and 25th March, 1971 were to be taken off the electoral rolls, and regularised after ten years.
- Those who came into the state post 25th March,1971 will be detected and expelled in accordance with law.
- However, the provisions of the IMDT Act made it difficult to deport illegal immigrants. Hence, it was held unconstitutional by the Supreme Court in Sarbananda Sonowal case in 2005.
- This was eventually replaced with the Foreigners (Tribunals of Assam) Order, 2006, which again was struck down in 2007.
- In the IMDT case, the court considered classification based on geographical considerations to be a violation of the right to equality under Article 14.
- In fact, another such variation was already in place. While the cutoff date for Western Pakistan is July 19, 1949, for Eastern Pakistan the Nehru-Liaquat Pact had pushed it to 1950.
Constitutionality of Section 6A
- Assam Sanmilita Mahasangha, along with other organizations, challenged the constitutional validity of Section 6A of the Citizenship Act, 1955 in 2012.
- In 2014, the Supreme Court heard the matter and passed an order under Art 145(3) of the Constitution, referring the matter to a larger Constitutional Bench.
- In April, 2017 a 5-Judge Bench was constituted. The Supreme Court in its recent order refused to extend restrictive provisions of amendments to Assam in view of a different dispensation for them in Section 6A.
- The Supreme Court is yet to examine the constitutionality of Section 6A under which the current NRC has been prepared.
- The petitioners argue that there is no rational basis for having separate cutoff dates for regularising illegal migrants who enter Assam as opposed to the rest of the country.