Section 6A and Assam

The Centre for Public Interest Law, Jindal Global Law School is currently offering the year-long Clinic on Citizenship and Statelessness, where students are developing research outputs on citizenship issues in India and assessing the citizenship determination framework under international law. This research note, prepared by Samia Khan, is part of the clinic’s outcomes.

In the year 1950, the Immigrant (Expulsion from Assam) Act was passed by the Parliament. The objects and purpose of the Act read: “During the last few months a serious situation had arisen from the immigration of a very large number of East Bengal residents into Assam. Such large migration is disturbing the economy of the province besides giving rise to a serious law and order problem” (see here). While the Act allowed the Central Government to give “directions in regard to” the removal of individuals from Assam, the application of the Act was barred against individuals who “on account of civil disturbances or the fear of such disturbances in any area” of Pakistan had been “displaced” or left their residence. While this Act marked the beginning of issues concerning migration, these issues came into the limelight with the liberation of Bangladesh in 1971, which led to a widespread migration from Bangladesh to Assam. 

The subsequent enfranchisement of refugees/migrants prompted the All Assam Students Union (AASU) to spearhead an “anti-foreigner” agitation in 1979, demanding “detection, disenfranchisement and deportation” of foreigners. Despite this agitation and resistance, Indira Gandhi’s government called for assembly elections in Assam in February 1983. While the AASU demanded for a boycott of elections, sections of Bengali Muslims decided to vote nonetheless in order to “effectively prove their claim to Indian citizenship”. These tensions culminated in the Nellie massacre which claimed around 1800 people according to official records, most of whom were Bengali Muslims. In the aftermath of Nellie, two legal developments followed. First, in 1985, a political settlement was reached between the agitators and the Central and State Governments, named the Assam Accord. Introduced through an amendment, Section 6A of the Citizenship Act was a legislative enactment for furthering the terms of this accord. Under Section 6A, any person who entered Assam from Bangladesh before the 1st of January, 1966 will be deemed a citizen of India. Persons who settled in the state between January 2, 1966 and March 24, 1971 would have to register themselves according to the rules laid down by the Central Government and would enjoy all other rights except the right to vote for a ten-year period. (see here) At the lapse of the ten-year period, they would become eligible to be enrolled in the electoral rolls. Finally, all those who migrated after the aforementioned date were to be expelled. 

The second important development happened two years before the Assam Accord, wherein Parliament passed the  Illegal Migrants (Determination by Tribunals Act) of 1983. Read with Illegal Migrant Rules of 1984, these two would act in conjunction to “detect and deport” foreigners by Tribunals established under this Act. The IMDT Act allowed for complaints to be brought to the police by a person living within a 3 kilometer radius of the foreigner suspected to have entered India without the necessary travel documents. It also placed the burden of proof on the State and the complainant, to establish the person’s status as “illegal migrant”. However, the Act was challenged by Sarbananda Sonowal before the Supreme Court. 

In pronouncing the judgement, the Court relied upon a report by the Governor of Assam, S.K. Sinha which claimed that, “Muslim militant organisations [had] mushroomed in Assam” as a result of illegal migration from Bangladesh. While Governor Sinha’s report was not backed by any data or surveys, the Court nonetheless held that there was an “external aggression” against the State of Assam. Subsequently, invoking Article 355 of the Constitution, the Court held that IMDT’s placement of burdens was insufficient to check the issues laid down in Sinha’s report, and hence went on to hold the Act and the Rules unconstitutional. After Sarbananda Sonowal, the regime, rather than being governed by IMDT, returned to Section 6A of the Citizenship Act, the Foreigners Act, and the Foreigners Tribunal Order.

Section 6A and the Assam Accord are often seen as the “genesis of the updated NRC in Assam”. Section 6A is instrumental in the creation of the National Register of Citizens (‘NRC’) in Assam, which is currently being updated under the supervision of the Supreme Court. The process requires a person to prove their Indian citizenship by providing government documents that establish their family legacy and their right to reside in India. This tedious process is often impossible for persons with limited resources, resulting in them being left off the NRC and stripped of the protection offered by citizenship.

It is in this context that Section 6A of the Citizenship Act was challenged before the Supreme Court in a petition by a Guwahati-based civil society organisation, Assam Sanmilita Mahasangha (ASM) in 2012. While referring the case to a bigger bench, Justice Nariman framed thirteen questions of law. 

While a five-judge constitution bench was instituted by Chief Justice J.S. Khehar in 2017 which conducted two hearings, it was decided to reconstitute a fresh bench later. Subsequently, as the question still remains unanswered, it is evident that the lack of clarity has resulted in a lack of clarity about applicable legal standards for citizenship determination in Assam. There is an imminent need for the Supreme Court to rule on the validity of the Section. Delaying the ruling will only be harmful to the lives of thousands whose citizenship hangs in the balance.

Suggested Reading Material :-

1. Anupama Roy, Mapping Citizenship in India (Oxford University Press 2010) ch 2.
2. Abdul Kalam Azad, M. Mohsin Alam Bhat and Harsh Mander, ‘Citizenship and the Mass Production of Statelessness in Assam’, India Exclusion Report 2019-2020 http://centreforequitystudies.org/wp-content/uploads/2021/01/India-Exclusion-Report-2019-20-e-copy.pdf accessed 16 June 2021.
3. Ashna Ashesh and Arun Thiruvengadam, ‘Report on Citizenship Law: India’, GlobalCit Country Report July 2017 https://cadmus.eui.eu/bitstream/handle/1814/47124/GLOBALCIT_CR_2017_12.pdf?sequence=1 accessed 16 June 2021.
4. Niraja Gopala Jayal, ‘Citizenship’ in Sujit Choudhary, Madhav Khosla, and Pratap Bhanu Mehta (eds), The Oxford Handbook of the Indian Constitution (Oxford University Press 2016).

Naturalisation

The Centre for Public Interest Law, Jindal Global Law School is currently offering the year-long Clinic on Citizenship and Statelessness, where the students are developing research outputs on citizenship issues in India and assessing the citizenship determination framework under international law. This research note, prepared by Pritha Paul, is part of the clinic’s outcomes.

Naturalisation refers to the incorporation of migrants usually displaced due to economic, political, or environmental reasons, among others, or immigrants looking for better living conditions or educational and employment prospects in the state they move to. It is a process promising not only recognition of their socio-economic contributions but also improved socio-economic opportunities. Historically, the word ‘naturalisation’ is derived from Middle French ‘naturaliser’ which means “to admit (an alien) to rights of a citizen”.

Jus soli was the guiding principle of the eighteenth century feudal European citizenship until the French Revolution reintroduced the Roman jus sanguinis principle. Both proved inadequate when the two World Wars left numerous migrants, refugees, and stateless persons in foreign lands without protection under the laws of that state. Naturalisation provided an opportunity to people, who were neither born within a State nor had ancestral ties to it, to become citizens solely by virtue of their personal connection formed with the State. Such connections could be established through residence, intention to settle, or a lack of ties to other countries. However, most states hold elaborate and intrusive tests to scrutinise this connection. For instance, Denmark has prescribed housing, residence, employment, language, and lifestyle requirements.

In India, naturalisation is one of the five ways in which one may become an Indian citizen, governed by section 6 of the Citizenship Act of 1955. To be eligible for naturalisation, one must be of good character, reside in India for a period of eleven years, and speak any of the official Indian languages. Upon being granted Indian citizenship, one must renounce any prevailing citizenship, take an oath of allegiance, and reside in or serve India. Initially, one had to renounce one’s existing citizenship upon applying for naturalisation. This had the potential to render one temporarily or permanently stateless depending on the approval or rejection of the application, respectively. Hence, the change is appreciable. However, in a lower-middle income country like India, an application fee of Rs. 1500 and requirement of language proficiency create invisible barriers for poor and illiterate migrants. Contrarily, the privileged who have a symbiotic relationship with the state are overindulged. The state may waive any or all naturalisation requirements for “distinguished” persons. Proficiency in a local language can propel social and economic integration. However, in their home state, persecuted persons are often systematically denied education and employment. In the host state, they are put in isolated squalid detention camps without basic facilities as has been seen in the case of Rohingyas. Even when free to live in the community, they are compelled to settle in the peripheries, like the Afghans in Delhi. For such people, it is nearly impossible to fulfil the naturalisation requirements.

Naturalisation tests ensure not only a low number of naturalised persons but also fewer applicants out of fear of failure, which perhaps is the primary aim of the tests. Between 2011 and 2020, merely 1380 foreigners were granted Indian citizenship through naturalisation. Moreover, the Act, through the 2003 amendment, made “illegal migrants” completely ineligible for Indian citizenship through registration or naturalisation. The unwillingness of the State to incorporate migrants leaves them in a limbo. Most of them cannot be deported due to the principle of non-refoulement. They remain in India for the rest of their lives, but as non-citizens.

Section 6, however, is not applicable to the state of Assam, which is governed by section 6A of the Act. Unlike Section 6, which applies to all persons regardless of their origin, Sections 6A and 6B create special pathways to citizenship for persons migrating from Bangladesh. It ‘regularizes’ i.e. grants immediate citizenship to those who entered Assam from Bangladesh before 1966. Persons who entered between 1966 and 1971 are conferred all qualities of a citizen except the right to vote until ten years from the day of their detection as a “foreigner.” After ten years, they too are regularised. Those who were expelled but managed to re-enter illegally before 1971 or those who entered after 1971 are to be deported. This special provision created two artificial distinctions by:

1. Granting regularisation to Bangladeshi migrants who entered Assam before 1971 but not to those who entered other bordering states,
2. Allowing “illegal migrants” who entered India before 2003 to naturalise under Section 6 but not those who entered Assam after 1971.

Additionally, the Citizenship (Amendment) Act of 2019, excludes non-Muslims who entered India from Afghanistan, Pakistan, and Bangladesh before 2015 from the category of “illegal migrants.” It eases their residency requirement from eleven years to five years. The ease is a welcome move. However, the country and religion based classifications are non-secular, arbitrary, and unreasonable.  Many have argued that they violate the Indian Constitution which guarantees certain fundamental rights to all persons irrespective of their citizenship status.

A state cannot be compelled to grant citizenship. However, the Universal Declaration of Human Rights, 1948 includes in Article 15, “Everyone has the right to a nationality”. The UDHR has become customary international law binding on all states. Granting nationality through naturalisation is an important step in eliminating statelessness. Since India has an obligation towards reducing statelessness under customary international law and other international treaties, India must facilitate naturalisation of stateless persons. A provision obstructing “illegal migrants” from naturalisation is in tension with international law. Articles 31 and 34 of the 1951 Refugee Convention and Article 32 of the 1954 Convention relating to the Status of Stateless Persons instruct easing the naturalisation process for refugees and stateless persons. Ireland has reduced residency requirements for refugees and waived naturalisation certificate fee for refugees and stateless persons.

As a good practice, one may refer to Prabhleen Kaur v. Union Of India. The only country the petitioner had any real connection to under Section 8 of the Foreigners Act, 1946 was India. Denying her Indian citizenship was held a violation of Article 15 of the UDHR. The court stated that her good character evidenced in her school and college certificates, her knowledge of the nation and her being a part of a community entitle her to be naturalised under Section 6(1) of the Act and she cannot be denied citizenship.These are the factors generally looked at while granting Indian citizenship.

With the refugee crisis and statelessness becoming global phenomena, naturalisation is becoming increasingly important as a means for non-citizens to find a safe space and a community in a strange land. Ironically, the process does exactly the opposite of what it promises, acting as a constant reminder of the ‘otherness’ that one must shed for a mere chance at approval and acceptance. India must remove the restriction on “illegal migrants” and ease the naturalisation requirements for refugees and stateless persons, irrespective of religion and country. This would only be a small step towards ensuring equity and fairness.

Suggested readings:

1. Katherine Tonkiss, ‘What’s So Bad about Citizenship Testing?’ (E-International Relations, 28 November 2014) https://www.e-ir.info/2014/11/28/whats-so-bad-about-citizenship-testing/ accessed 24 November.

2. Oded Löwenheim & Orit Gazit, ‘Power and Examination: A Critique of Citizenship Tests’ (2009) 40(2) Security Dialogue.

3. Albert Kraler, Migration and Citizenship: Legal Status, Rights and Political Participation (Amsterdam University Press 2006) ch 2.

4. Pritam Baruah, ‘Not Just Equality, the CAA Betrays Constitutional Values of Dignity, Integrity’ The Wire (27 December 2019) https://thewire.in/rights/caa-constitution-equality accessed 24 November 2020.

5. Vatsal Raj, ‘Statelessness in India – Seeking Solutions in International Law’ (Cambridge International Law Journal, 11 February 2020) http://cilj.co.uk/2020/02/11/statelessness-in-india-seeking-solutions-in-international-law/#:~:text=Migration%20is%20a%20phenomenon%20of%20human%20civilisation.&text=The%20solution%20lies%20in%20the,dictate%20the%20laws%20of%20citizenship accessed 24 November 2020.

6. Asha Bangar, ‘Statelessness in India’ (2017) Statelessness Working Paper Series No. 2017/02 https://files.institutesi.org/WP2017_02.pdf accessed 24 November 2020.

7. Oxford Handbook of Citizenship (Oxford University Press 2017) ch 16.

8. Graziella Bertocchi and Chiara Strozzi, ‘The Evolution of Citizenship: Economic and Institutional Determinants’ (2006) IZA Discussion Paper No. 2510 http://ftp.iza.org/dp2510.pdf accessed 24 November 2020.

9. Ministry of Home Affairs, ‘Procedure For Applying Online For Indian Citizenship’ https://indiancitizenshiponline.nic.in/Ic_GeneralInstruction.pdf accessed 24 November 2020.

---