Debates on Citizenship in India: Citizenship Act 1955, Articles 5-11 and NRC (BA Hons Political Science Notes)

Quick Summary: Key Takeaways

• Citizenship is the legal membership of the state; it decides the rights and responsibilities of a person.

• Modern debates revolve around the binaries of inclusion-exclusion, legal-illegal, citizen-alien and formal and substantive citizenship.

• T.H. Marshall (Citizenship and Social Class, 1950) traced three steps: civil rights, political rights, social rights.

• Articles 5 to 11 (Part II) govern citizenship at the commencement of the Constitution on 26 January 1950; Article 11 lets Parliament make laws on it.

• The Citizenship Act 1955 gives five ways of acquiring and three ways of losing citizenship, and was amended in 1957, 1960, 1985, 1986, 1992, 2003, 2005 and 2015.

• The basis of citizenship has moved from jus soli (birth in territory) to jus sanguinis (blood ties).

• The Assam Accord and the NRC raise key debates on illegal immigrants and exclusion.

Introduction: What Is Citizenship?

• In general, citizenship means a legal membership of the state.

• The emergence of the modern state and the nation-state added new dimensions: membership is tied to the status of the person and to the corresponding rights and responsibilities.

• Contemporary debates revolve around the binaries of inclusion-exclusion, legal-illegal, citizen-alien and formal and substantive.

• The chapter studies these binaries and the legal development of citizenship and its impacts in India.

Historical and Theoretical Understanding of Citizenship

Before the Modern State: Subjects

• Membership of a state was attached to membership of a community, giving the status of subject.

• Subjects got their livelihood from state resources and paid tax and gave military service in return.

• Taking care of subjects was the king's duty; fulfilling obligations was the subjects' duty. There were only duties and no rights, far from the modern idea of citizenship.

Ancient Greece: Active Citizenship

• Between the 5th and 4th century BCE in Athens, modern ideas of citizenship can be traced.

• Aristotle in his book 'Politics' envisaged civic life as 'being ruled and rule in turn'.

• Rights were limited: females, slaves and foreigners were excluded; participation came at the cost of excluding a major part of the community.

• Still, it was a qualitative leap: citizenship with both rights and duties, giving the idea of active citizenship.

Roman Empire: Passive and Graded Citizenship

• Expansion brought people of different regions and races, so limited Greek citizenship was no longer useful.

• Romanized Greek scholars like Cicero and Polybius developed citizenship derived from territories.

• All people in Roman territories got legal membership that provided legal protection but no political participation (no right to vote or to be elected).

• This was a graded idea of citizenship and a passive idea of citizenship, suited to the multi-ethnic Roman Empire; women and slaves were again excluded.

Medieval and Modern Periods

• Medieval: citizenship rested on legal protection, but political power was held by religious leaders like the Pope of the Christian Church; the Church became the focal point of allegiance.

• Machiavelli asserted that active citizenship is the prime virtue for the Republic, affirmed later by Rousseau.

• Modern age: the nation-state and liberal ideology shaped citizenship.

• Thomas Hobbes (right to life), John Locke (right to life, liberty and personal property) and Jean Jacques Rousseau (right to liberty and active political participation) laid its foundation.

• The French Revolution of 1789 propounded liberty, equality and fraternity, but securing citizenship for all inhabitants and equal rights for all citizens needed further struggle.

Struggle for Rights and T.H. Marshall

• T.H. Marshall in Citizenship and Social Class (1950) sketched the development of citizenship in Britain in three steps: civil rights, then political rights, then social rights.

• Civil rights (18th century): demanded by the emerging bourgeois class against the king and his privileges, so citizenship and capitalism developed together. They limit state power and include freedom of expression and movement and equality before law. Marshall called them negative rights, as they put restrictions on the state.

• Political rights (19th century): right to vote and to contest public offices; they gave birth to representative governments.

• Social rights (20th century): demand for minimum economic guarantee and equal social status; regarded as positive rights, as they seek positive intervention by the state; they led to welfare states.

• Rights did not reach everyone together: the bourgeois class secured them from kings; later the labour class and masses secured them through struggle against the bourgeois class, in which the Marxist movement played a significant role.

• It took more than two hundred years for most of the population to secure rights, and women waited even longer.

• Marshall defined citizenship as an individual's full and equal membership in the state.

• Identifying citizens, extending rights and the question of local and alien are tied to the idea of citizenship; states try to identify loyal inhabitants while establishing themselves as nation-states, so those not found loyal stay deprived or become second class citizens. This is seen in European states and third world countries, and India is no exception.

Citizenship in India

• Partition of India and the emergence of India and Pakistan rested on identifying inhabitants into two nations; it caused huge movement of people across borders and a contest over the basis of identification.

• No consensus in the Constituent Assembly: one view said all born in Indian territory are entitled to citizenship; another favoured a racial-cultural basis; a third voice, considering communal plurality, advocated differentiated citizenship.

• So the Assembly only identified who were citizens at the commencement of the Constitution and left the rest to a future assembly.

• Parliament enacted the Citizenship Act 1955, amended eight times: 1957, 1960, 1985, 1986, 1992, 2003, 2005 and 2015.

• These amendments show the basis moving from Jus soli (born in Indian territory) to Jus sanguinis (kin and blood ties).

Constitutional Provisions of Citizenship (Articles 5-11)

• Articles 5 to 11 of Part II deal with citizenship. At the commencement on 26 January 1950, four categories were citizens:

• Article 5: a person domiciled in India who also met one of three conditions: born in India; or either parent born in India; or ordinarily resident in India for five years before the Constitution began.

• Article 6: a person who migrated from Pakistan, if he or a parent or grandparent was born in undivided India, and: migrated before 19 July 1948 and had been ordinarily resident since migration; or migrated on or after 19 July 1948 and was registered (after six months' residence before applying).

• Article 7: a person who migrated to Pakistan after 1 March 1947 but returned for resettlement, with six months' residence before applying for registration.

• Article 8: a person of Indian origin residing outside India (he, a parent or grandparent born in undivided India), if registered by the diplomatic or consular representative of India.

• In short: (a) persons domiciled in India; (b) migrants from Pakistan; (c) migrants to Pakistan who returned; (d) persons of Indian origin abroad.

• Article 9: a citizen may voluntarily denounce citizenship. Article 11: Parliament can make laws on acquisition and termination of citizenship.

Legal Provisions: Citizenship Act 1955

• Under Article 11 power, the Citizenship Act 1955 was enacted (amended in 1957, 1960, 1985, 1986, 1992, 2003, 2005 and 2015).

• It prescribes five ways of acquiring citizenship: birth, descent, registration, naturalisation and incorporation of territory.

1. Citizenship by Birth

• Born in India on or after 26 January 1950 but before 1 July 1987: citizen irrespective of parents' nationality.

• Born on or after 1 July 1987: citizen only if either parent is a citizen at the time of birth.

• Born on or after 3 December 2004: citizen only if both parents are citizens, or one is a citizen and the other not an illegal migrant.

• Children of foreign diplomats and enemy aliens cannot get citizenship by birth.

2. Citizenship by Descent

• Born outside India on or after 26 January 1950 but before 10 December 1992: citizen by descent if the father was a citizen.

• Born outside India on or after 10 December 1992: citizen if either parent is a citizen.

• From 3 December 2004: birth must be registered at an Indian consulate within one year (or later with Central Government permission), with a parents' written undertaking that the minor holds no other passport.

• A minor who is a citizen by descent and of another country ceases to be a citizen unless he renounces the other citizenship within six months of attaining full age.

3. Citizenship by Registration

• The Central government may register any person (not an illegal migrant) in these categories: Indian origin and ordinarily resident for seven years; Indian origin resident outside undivided India; married to a citizen and resident seven years; minor children of citizens; full age and capacity persons whose parents are registered citizens; persons (or a parent) who were earlier citizens of independent India, resident twelve months; and Overseas Citizen of India cardholders for five years, resident twelve months.

• A person is of Indian origin if he or a parent was born in undivided India or a territory that became part of India after 15 August 1947.

• All must take an oath of allegiance to the Constitution.

4. Citizenship by Naturalisation

• The Central Government may grant a certificate of naturalisation (not to an illegal migrant) if the person: is not a citizen of a country that bars Indians from naturalisation; renounces other citizenship if accepted; has resided or served a government in India for twelve months; has resided not less than eleven years in the fourteen years before that period; is of good character; has adequate knowledge of a language in the Eighth Schedule; and intends to reside or serve in India.

• Conditions can be waived for distinguished service to science, philosophy, art, literature, world peace or human progress. Every naturalised citizen takes an oath of allegiance.

5. Citizenship by Incorporation of Territory

• If a foreign territory becomes part of India, the government specifies who among its people become citizens from the notified date.

• Example: when Pondicherry joined India, the Citizenship (Pondicherry) Order, 1962 was issued under the Citizenship Act 1955.

Loss of Citizenship: Three Ways

• Renunciation: a citizen of full age and capacity can declare renunciation; on registration the person ceases to be a citizen. Registration is withheld during a war in which India is engaged. Minor children also lose citizenship but may resume at 18.

• Termination: a citizen who voluntarily acquires another country's citizenship automatically loses Indian citizenship (not applicable during a war).

• Deprivation: compulsory termination by the Central government if the citizen: got citizenship by fraud; showed disloyalty to the Constitution; unlawfully traded or communicated with the enemy in war; was imprisoned for two years within five years of registration or naturalisation; or lived outside India for seven years continuously.

Section 2

Special Provisions for Assam: Assam Accord

• Added through the Citizenship (Amendment) Act 1985 to identify illegal Bangladeshi immigrants in Assam and decide their status.

• Persons of Indian origin who came to Assam from Bangladesh before 1 January 1966 and stayed there are deemed citizens from 1 January 1966.

• Persons of Indian origin who came on or after 1 January 1966 but before 25 March 1971, and were detected as foreigners, must register; they are deemed citizens after ten years from detection, with the same rights and obligations except the right to vote in the meantime.

• These provisions add a new category of citizenship that accepts even illegal immigrants as legal citizens.

Assam Accord and the Identification of Illegal Immigrants

• Assam has seen a continuous flow of outsiders from the rest of India and illegal immigrants from Bangladesh since colonial times, which continued after independence and the formation of Bangladesh.

• A strong anti-outsider and anti-foreigner movement arose to protect the language, culture and political dominance of local Assamese.

• Detection, deletion and deportation gained prominence; in 1983 the Centre enacted the Illegal Migration (Determination by Tribunal) Act 1983 (IMDT); for the rest of India the work lay with the Foreigner's Tribunal Act 1946.

• Burden of proof: under the Foreigner's Tribunal it lies on the accused; under IMDT it lay on the person who reports someone as illegal. IMDT therefore failed compared to the Foreigner's Tribunal.

• In 2005 the Supreme Court in Sarbananda Sonowal v. Union of India declared the IMDT Act null and void.

Assam Accord and the National Register of Citizens (NRC)

• The Assam Accord was signed between the All Assam Students Union (AASU), which led the Assam movement, and Prime Minister Rajiv Gandhi to preserve the socio-cultural and political fabric of Assam's natives and to identify and deport illegal Bangladeshi immigrants.

• After IMDT failed and was struck down in 2005, the issue returned to political contestation; in the last Assembly and General elections it was a prime plank of parties like the BJP and AASU, and the BJP promised to update the NRC 1951.

• To be included in the NRC, a citizen must show proof of residence, especially a name in the electoral roll before March 1971, the cut-off date under the Assam Accord.

• The final list excluded around 19 lakh people; the lesson notes it was believed most would be Muslims, but the number of illegal citizens was far less than claimed, and many excluded were Hindus.

• The lesson notes the Centre's stand that excluded Hindus would be given citizenship while Muslims would be deported, which may lead to citizenship on the basis of religious affiliation.

• States like Haryana and Uttarakhand also proposed their own NRC, which may make the whole population suspect citizens; the lesson asks what normative value the exercise seeks, and says that if it only makes citizenship more exclusionary, it needs valid justification and wider consensus.

Conclusion

• The lesson notes that the Citizenship Amendment Act 2005 had already excluded children born to illegal immigrants; refugee groups like the Chakmas are still struggling for citizenship rights.

• The NRC will open new debates on citizenship in India.

• Establishing the nation-state pushed inclusion and exclusion, legal and illegal, citizen and alien to the forefront, and may force us to revisit the legitimacy of the state as an association of human beings.

FAQs: Citizenship in India (Exam Focus)

References

• SOL Study Material

• Anupama Roy (2016), Citizenship in India, Oxford University Press.

• Anupama Roy (2016), 'Ambivalence of Citizenship in Assam', Economic and Political Weekly, Vol. LI, 26 & 27, pp. 45-51.

• D.D. Basu (2018), Introduction to Indian Constitution (23rd edition), New Delhi, LexisNexis (chapter on Citizenship).

• M. Laxmikant (2017), Indian Polity (fifth edition), Chennai, McGraw Hill Education (India) Private Ltd. (chapter 6).

• Valerian Rodrigues (2008), 'Citizenship and the Indian Constitution', in R. Bhargava (ed.), Politics and Ethics of the Indian Constitution, New Delhi, Oxford University Press, pp. 164-188.