What We Talk About When We Talk About Citizenship in India

It is entirely possible for millions of rightful Indian citizens to be lost in the labyrinths of the documentation process and be unable to produce the necessary documents that prove their citizenship, thereby being rendered non-citizens.

The release of the final draft of Assam’s National Register of Citizens (NRC), on July 30, has opened a Pandora’s box in the state. Although the Supreme Court has directed the government not to take any coercive action against those whose names do not figure in the NRC final draft, the threat of deportation hangs like Damocles’s sword over the heads of almost 40 lakh people. The sheer number of people being rendered stateless makes it one of the biggest human rights issues in post-independence India.

In these volatile times, when questions of citizenship and nationality frequently become fodder for identity and electoral politics, several questions – some immediate and others far-reaching – have cropped up pursuant to the release of the final draft: Who are these people? What will happen to them eventually? Will they be deported, and if yes, to where? Will they be put in detention camps? Why are these people not citizens, and if they are not, then who is? What makes an individual a citizen or a national, or stateless?

Citizenship and nationality

For many, the term ‘citizenship’ implies one’s national identity determined by birth, ancestry, ethnicity, culture and upbringing. Citizenship and nationality are often used interchangeably without realising their differences, with current right-wing, immigrant-bashing movements worldwide even construing citizenship as nationalism. So to understand who those left out of the Assam NRC are or what will happen to them, it is imperative to understand the nuances of the concept of citizenship itself and other concepts that are routinely conflated with citizenship.

Whereas citizenship and residency are legal concepts, nationality is an ethnic or racial concept, which implies the membership of a state a person acquires by birth, adoption, marriage or descent.

Legally speaking, citizenship indicates the relationship between an individual and a nation-state. Citizenship confers upon an individual certain rights such as protection by the state, right to vote and right to hold certain public offices, among others, in return for the fulfilment of certain duties/obligations owed by the individual to the state. Countries around the world have established different systems and rules that govern the attribution of citizenship, the major ones being by birth, by naturalisation or by marriage. Most countries follow one of the two following systems: jus soli or jus sanguinis. Jus soli is a Latin term meaning law of the soil. Many countries follow jus soli, more commonly known as birthright citizenship. Under this concept, citizenship of an individual is determined by the place where the individual was born. So a child of an immigrant is a citizen as long as he/she is born in the country of immigration. The US follows the jus soli system to determine citizenship. Therefore, whoever is born in the US and is subject to its jurisdiction is automatically granted US citizenship.

Jus sanguinis is when a person acquires citizenship through descent, i.e. through their parents or ancestors independent of where he/she is born. For example, a child born in India must have at least one parent who is an Indian citizen to be conferred citizenship. Prior to an amendment to the Citizenship Act, 1955 on December 3, 2004, people born in India were given citizenship regardless of the citizenship held by parents. After the commencement of the Citizenship (Amendment) Act, 2003, anyone born in India must have at least one Indian parent to get citizenship by birth. A person born outside India can obtain citizenship by descent through parents and a foreigner married to an Indian citizen can obtain Indian citizenship after being ordinarily resident in India for seven years before making the application.

One cannot change nationality but can change citizenship upon compliance with legal formalities of the country whose citizenship one seeks to acquire. An individual is a national of the state he/she is born in, can be a citizen of another state and be a resident of a third state. One can be a resident of a state and still not be a citizen. Even though legal residents enjoy many rights akin to citizens, such as the right to work, travel or study within that country, there are certain rights which are exclusive to citizens only (such as the right to buy property or to vote in the Indian context). For example, an Indian national, i.e. an individual born in India, can be an American citizen (holding a US passport) and a British resident (British residence permit). Many countries permit dual citizenship, thereby allowing their citizens to acquire citizenship of another country.

Citizens and non-citizens in India

Are India’s 1.3 billion people then ‘citizens’ under the law? How does one prove one’s citizenship? Under the Citizenship Act, 1955 the Central government may maintain a national register of Indian citizens and issue national identity cards to every citizen. To comply with this law, the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003 framed by the Central government made it mandatory for the registrar general of citizen registration to establish and maintain a national register of Indian citizens (NRIC) and issue national identity cards to every citizen whose particulars are entered in the NRIC. However, successive governments in India have failed to implement these provisions.

People wait to check their names on the final draft of the state's National Register of Citizens after it was released, at an NRC Seva Kendra in Nagaon on Monday, July 30, 2018. Credit: PTI

Assam is the only state that has the NRC, which was first prepared in 1951. Credit: PTI

With the government now finalising the Assam NRC draft, the next step that is likely to follow is the preparation of the NRIC. In the absence of any national identity card, the need of the hour is for the government to specify which documents can serve as proof of citizenship as the Citizenship Act, 2003 is silent in this regard. In a country like India, where documentation is restricted to a privileged few, proving that one’s parent is an Indian citizen to claim citizenship is an uphill task for millions. So, it is entirely possible for someone to be considered a non-citizen for lack of documents although she/he is a rightful citizen.

This brings us to the question: do non-citizens have any rights before the courts of law? A simple answer to this is, yes. The Indian constitution guarantees certain fundamental rights to citizens and non-citizens alike. The framers of the constitution envisaged certain rights to be inalienable human rights and therefore the constitution guarantees such rights (Article 14: right to equality; Article 20: right to protection against punishment for retroactive laws, double jeopardy and self-incrimination; Article 21: right to protection of life and liberty; Article 22(1), (2): right of protection against arrest and detention in certain cases; Article 24: prohibition of employment of children in factories, mines and hazardous employment; Article 25: right to freedom of religion) to all persons irrespective of their citizenship status.

Those who do not make it to the final NRC in Assam will not be able to appeal directly to the Tribunal; they can present their case only when the government makes a reference of the matter to the Tribunal.

What remedy does somebody who is declared a non-citizen have against the all mighty state? In exercise of the powers conferred by the Foreigners Act, 1946, the Central government made the Foreigners (Tribunals) Order 1964 under which tribunals were constituted to decide whether a person is or is not a foreigner. Under the existing law, only the government or the registering authority can move an application before the tribunal against a person suspected to be illegally staying in India. Individuals cannot by themselves move the Foreigners Tribunals and present their case that they are not staying illegally.

Those who do not make it to the final NRC in Assam will, therefore, not be able to appeal directly to the Tribunal; they can present their case only when the government makes a reference of the matter to the Tribunal. The only ray of hope for non-citizens is, therefore, the fundamental rights discussed above that are conferred on all persons irrespective of citizenship status. Deportation or detention without following the due process of law will tantamount to violation of the constitution. Since India is a party to the International Covenant on Civil and Political Rights, the Convention on the Elimination of all Forms of Discrimination against Women and the Convention on the Rights of the Child, it cannot deport the millions in Assam who have failed to make it to the NRC or render them stateless. Such actions would be inconsistent with the spirit of Article 51(c) of the Indian constitution, which directs that India should foster respect for international law and treaty obligations.

Rights of immigrants and refugees

What rights do people who cross borders illegally have? Should they be sent back simply because they are non-citizens, without acknowledging how and why they were made non-citizens in the first place? Article 15 of the Universal Declaration of Human Rights, 1948 (UNDHR) confers upon every individual the right to have a legal connection with a state. It mandates that “Everyone has the right to a nationality. No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.”

The 1951 Refugee Convention builds on Article 14 of the UNDHR, which recognises the right of individuals to seek asylum from persecution in other countries. An asylum seeker who is granted leave to remain in a country gets the status of a refugee. A refugee may enjoy certain rights and benefits in the host country in addition to those provided for in the Refugee Convention.

Rohingya refugees who fled from Myanmar wait to be let through by Bangladeshi border guards after crossing the border in Palang Khali, Bangladesh October 9, 2017. Credit: Reuters/Damir Sagolj

Many states all over the world continue to prosecute and render their citizens stateless regularly. The Myanmar crisis last year, when thousands of Rohingyas were persecuted and chased from their homes, led to a huge influx of refugees in the subcontinent, including in India. The Indian government has resisted taking the refugees in, and even contended before the Supreme Court that the Rohingya refugees living in India are a potential threat to national security. The Centre could possibly take the same stance with those who will eventually fail to make it to the final NRC.

Apart from Assam and West Bengal being destinations of immigrants from Bangladesh, India has generally remained an immigration destination for immigrants and refugees from all over South Asia and beyond. The second half of the past century itself saw India welcoming, sometimes actively and at other times reluctantly, refugees from Tibet, Pakistan, Bangladesh, Bhutan, Sri Lanka and Myanmar, among many others. India has signed neither the 1951 United Nations Refugee Convention nor its 1967 Protocol, but it continues to host a significant population of refugees and stateless persons taking into consideration the humanitarian dimension of such problems.

So far, the Indian government has been unable to deport the Rohingya refugees because of a petition before the Supreme Court challenging the proposed deportation as a gross violation of the fundamental rights contained in Article 14 (right to equality before the law) and Article 21 (right to life) of the Indian constitution. As the NRC debate raises political mercury levels in Assam and beyond, it is imperative for the Central and state governments to ensure that India continues to follow in the path that its constitution’s framers envisaged for it: a tolerant, liberal country that values human rights and equality of all persons before the law.

Atasi Ghosh is an advocate at the Calcutta high court. She holds law degrees from the University of Calcutta, the University of Cambridge and the University of Law, Leeds.