Paths to Citizenship, Paths to Statelessness

By Niraja Gopal Jayal (Jawaharlal Nehru University), GLOBALCIT collaborator. A longer article on this topic has been published on The India Forum on 1 November 2019 under the title ‘ Faith-based Citizenship The Dangerous Path India is Choosing‘.

The recently concluded exercise of compiling a National Register of Citizens (NRC) in the Indian state of Assam needs to be read alongside the Citizenship Amendment Bill (CAB), and both of these in turn need to be read against the context of the current government’s policies towards minorities – from the forced ‘amelioration’ of Muslim women by criminalising the triple talaq to the clampdown in the erstwhile state of Jammu and Kashmir since early August. They need also to be read in the context of the recent acceleration of violence against minorities, especially by vigilante lynch mobs which, while not authorised by government, are emboldened by the prospects of legal impunity. This ecosystem for minorities –serviced by both society and state – is key to an understanding of both the NRC and the CAB.

Over the last three decades, India has been witnessing a subtle shift from the inclusive and universalist principle of legal citizenship articulated in the Constitution to a less inclusive conception; from a jus soli or birth-based principle to an increasingly, if covertly imposed, jus sanguinis or descent-based principle; from soil to blood. This has of late become less subtle and more pronounced, and the NRC and the CAB are powerful symbols of this shift.

The first National Register of Citizens for Assam was compiled in 1951, but remained largely dormant since, until political considerations gave it a new lease of life. A fresh start was made in 2015, under the direction of the Supreme Court, to record all those who have documentary proof of being Indian, and of them or their ancestors having been in India before midnight on March 24, 1971. The declared aim of the exercise was to identify the “illegal immigrants” who had come into Assam at the time of the war with Pakistan in 1971 that had resulted in the creation of Bangladesh; those who had come in before 1971 had already been legally assimilated through an amendment to the Citizenship Act in 1985. That amendment was followed, in 2004, by another providing that, even if born on Indian soil, a person who had one parent who was an illegal migrant at the time of her or his birth, would not be eligible for citizenship by birth. Since the majority of the migrants from Bangladesh were Muslims, this covertly introduced a religion-based exception to the principle of citizenship by birth, undermining the principle of jus soli.

The Citizenship Amendment Bill, which will almost certainly be re-introduced and passed in coming months, will make explicit and legitimise the inflection of citizenship with religious difference. The Bill provides that persons belonging to six religions (Hindus, Sikhs, Buddhists, Jains, Zoroastrians and Christians) from three countries (Afghanistan, Bangladesh and Pakistan) deemed to be “persons belonging to minority communities,” “shall not be treated as illegal migrants for purposes of this Act” and, as such, will be eligible for citizenship after six years of residence in India as opposed to the general requirement of 12 years. The silent implication is that Muslims from these countries would continue to be treated as illegal immigrants and would not therefore be eligible for fast-track citizenship. The ostensible reason for the exclusion of Muslims is that they are not minorities in the specified countries. Notwithstanding the official concern about religious persecution, however, similar hospitality is not on offer for the Ahmadi or Rohingya Muslims, persecuted sects in Pakistan and Myanmar respectively. By introducing a religion-based difference in the presently religion-neutral law on citizenship by naturalisation, this amendment would in effect create two categories of potential citizens: those professing the Hindu and other ‘acceptable’ faiths; and those professing Islam.

While the CAB provides paths to citizenship for preferred groups of migrants, excluding only those belonging to one particular religious community, the NRC provides paths to statelessness for groups that are not preferred, by ostensibly sorting nationals from non-nationals, but in effect doing this on the basis of religion. This is why, though the idea of the NRC itself is not new, what its current avatar does to the legal and constitutional idea of citizenship is new. It seeks to identify those that cannot prove their ancestry in India and, in the first instance, disenfranchise, but in the longer run possibly deport or confine them in detention centres. It bears mentioning here that India is not a signatory to the international conventions on refugees, on statelessness or on the reduction of statelessness.

In a society as historically undocumented as India, and in a region that has been susceptible to natural calamities like floods, there are many people who cannot produce documents to establish their ancestry. Ironically, as Kamal Sadiq has shown, immigrants may be what he calls ‘paper citizens’, possessing ‘documentary citizenship,’ while those who are native inhabitants for generations may be undocumented. As such, even undocumented nationals can be deprived of their citizenship status, and that this could be a real possibility for many has already been demonstrated by the results of the NRC. At the end of its first round, 4 million people out of the 32.9 million who had applied, were excluded. Fresh claims for inclusion were filed by 3.6 million people and at the end of this process, in August 2019, 1.9 million remain unauthenticated. Champions of the NRC have been disappointed by this unexpected outcome, as large numbers of Hindus are among the excluded, and the percentage of exclusions was larger in areas inhabited by indigenous people, and lower in border areas where the illegal migrants have settled. Those left out include people who have served in the Indian Army or the Border Security Force for decades, the nephew of a former Indian president, and even the only woman chief minister Assam ever had. Ironically, a former anti-immigration activist and even a local BJP leader found themselves excluded.[1] In some cases, children’s documents were found to have been accepted but not those of their fathers. As the factual outcomes of the process turned out to contradict the political assumptions of the enthusiasts of this exercise, the political messaging has sought to assuage fears by affirming that no Hindus would be deported. On the basis of their religious identity, they could anyhow be reinstated as citizens when the CAB becomes law.

Despite deportation being a recurring theme in political speeches, representatives of the government have been reassuring Bangladesh that the NRC is an ‘internal’ matter and will not make any demands on it. In any case, there is speculation that given the economic performance of Bangladesh, presently bettering India in terms of both GDP growth and several social indicators, not only would its own population be disinclined to migrate, it may actually encourage immigration in the opposite direction.

In the meantime, 1145 people have already been placed in six detention centres in Assam, living in sub-human conditions; 335 of these have spent three years in camps; 25 persons declared ‘foreigners’ have already died in the detention camps; and at least 33 persons have been driven to suicide by the fear of not possessing papers. Although the Supreme Court has passed orders for the improvement of the conditions in these centres, there is a genuine moral concern about the very idea of such detention centres which is at odds with India’s constitutional values and more generally with the idea of human rights.

News of the ongoing construction of a large detention camp, with a capacity of 3000 detainees, with ten others planned to fit a thousand people each, all of these in Assam, gives credence to the fear that millions of people could be rendered stateless and rightless, perhaps populating detention centres for long periods of time. Such anxieties are encouraged also by the persistent talk of extending the NRC to the entire country, and of setting up detention centres across India. In states ruled by opposition parties avowing a secular agenda, this is being resisted; but in states ruled by the BJP, it is motivated by the idea of creating a two-tier citizenship based on religion. The ostensible purpose is to enable the sifting of genuine citizens from fake or undocumented migrants, but the political discourse makes it unambiguously clear that the intention is to ‘sort’ and then calibrate citizenship based on religious identity.

Reading the experience of the NRC alongside the CAB is instructive as to the new conception of citizenship that is being produced. From the constitutional conception of equal citizenship in a civically defined political community, and based on birth on Indian soil, we are moving towards a conception of unequal citizenship, in which birth in a particular religious community will ensure comprehensive entitlement to the rights and privileges of citizenship, while its absence will putatively offer a lesser citizenship, fewer rights and a life of legal and social discrimination.

[1] In July-August 2019, the online journal carried a month-long reporting project on the NRC titled The Final Count, with a sub-series titled Humans of Assam, profiling the astonishing diversity of individuals who had been excluded.

This article is part of a short blog series on the National Register of Citizens (NRC) in the Indian state of Assam. Read the other contributions: India’s National Register of Citizens: Fine intentions, Ominous portents by Sanjib Baruah and The National Registry of Citizens: Violating Muslims, Violating Humanity in Assam by Yasmin Saikia.