A Perspective On India’s New Controversial Citizenship Law

Protestors walk in a rally demanding the withdrawal of the Citizenship Amendment Act and National Register of Citizens (NRC) in Kolkata, India, Thursday, Dec. 19, 2019. Police detained several hundred protesters in some of India’s biggest cities Thursday as they defied a ban on assembly that authorities imposed to stop widespread demonstrations against a new citizenship law that opponents say threatens the country’s secular democracy. (AP Photo/Bikas Das)


By Zile Singh – Ambassador (Retd.)


The term nationality differs from citizenship though on many occasions these are used interchangeably.   Nationality is an ethnic or racial concept whereas Citizenship is a legal or juristic concept. The nationality of a person indicates his place or country of birth. Nationality can be acquired by means of birth, descent, naturalization, resumption, subjugation, cession, option and registration.  The lack of uniformity in municipal laws with respect to the determination of nationality gives rise to the problem of double nationality.  In this case, a person can have a nationality of two States or even more than two States.  On the other hand when a person does not possess the nationality of any State, he is called a Stateless person.  A person may be without nationality knowingly or unknowingly, intentionally or through no fault of his own.  A person may be Stateless either by birth or after birth.  Statelessness may occur after birth as well.  For instance, it may occur as a result of deprivation or loss of nationality by way of penalty or otherwise. Refugees fleeing from their country to another country may also become stateless. Because by denouncing their ‘allegiance’ they may lose the nationality of the State from where they fled.  The international efforts to eliminate or reduce statelessness have only a limited effect because the determination of nationality is still within the jurisdiction of individual  State.


The citizenship of a person indicates that he has been registered as a citizen by the government of the respective country.  The Constitution of India does not use the expression nationality.  Instead, the expression ‘citizenship’ has been used.  Part II of the Indian Constitution declared as to who shall be the citizen of India at the commencement of the Constitution. Under Article 5 of the 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 on January 26, 1950, is a citizen of India.   Provisions were also made regarding, (i) persons who have migrated to India from Pakistan and vice versa, (ii) persons of Indian origin residing outside India, and (iii) persons voluntarily acquiring citizenship of a foreign country.


Article 11 of the Indian Constitution reads as follows: Parliament to Regulate the Right of Citizenship by Law.  Nothing in the provisions in Part II 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. For the first time Act. No. 57 was enacted in 1955 extending citizenship to the State of Jammu and Kashmir.  The Act provided for the acquisition of Indian citizenship in six ways: – by birth, by descent, by registration, by naturalization, and by incorporation of territory.  In addition to the above, a minor may also acquire citizenship by resumption and integration.  The Act also laid down the modes by which a person may lose the Indian citizenship.  It may occur in three ways: (a) renunciation, (b) termination and (c) deprivation.


In 1986 the Citizenship Act was amended to make the laws stringent.  According to it, the citizenship will no longer be granted automatically to persons by birth, but only by birth if either of their parents is also Indian citizens at the time of birth.  The Act also increased the periods of the residency for eligibility for citizenship by registration and naturalization to five and ten years from six months and five years respectively.  The amendment was made keeping in view the exodus of illegal migration in the border districts of some north-eastern States. However, the Act was repealed in 2001.


The Citizenship (Amendment) Act, 2019 was passed by the Indian Parliament on December 11, 2019.  It amended the Citizenship Act of 1955 by providing a path to Indian citizenship for Hindu, Sikh, Buddhist, Jain, Parsi and Christian religious minorities fleeing persecution from Pakistan, Bangladesh and Afghanistan (all Islamic Republics).   Muslims were not given such eligibility.  For the first time, religion has been overtly used as a criterion for citizenship under Indian law which undermines the secular credentials of India enshrined in the Indian Constitution. The Constitution was initially adopted as a “Sovereign Democratic Republic”.  The word “Secular” was added to its Preamble in 1975 through an Amendment. It is in place to justify that “Sovereignty, Integrity and Unity of India precede its Secularism”.   According to some sources, there will be around 25447 Hindus, 5807 Sikhs, 55 Christians, 2 Buddhists and 2 Parsis beneficiaries.   The Amendment has been widely criticised violently in India as discriminatory on the basis of religion, particularly for excluding Muslims.  There is an assumed fear that the Act might be used along with the National Register of Citizens to render many Muslim citizens as Stateless.


Though it is an internal matter of a Sovereign State and its Parliament has the full power to make or amend the Citizenship Act, there are some advisory voices from the United Nations and international media.   India is not a signatory to either the UN Refugee Convention, 1951 or its 1967 Protocol. India does not have a national policy on Refugees.  All refugees are classed as ‘illegal migrants’.  The Act is yet to take effect.

Mr. Zile Singh is much respected Link Columnist, writer, a Vipassana Meditator and has a Post-Graduate Diploma in Human Rights.  He can be reached at zsnirwal@yahoo.ca


PS:  the next column will be Citizenship (Amendment) Act, 2003 – Overseas Citizenship of India (OCI).

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