The 2016 Citizenship Amendment Bill consolidates a trend towards a majoritarian and exclusionary concept of Indian citizenship

20 February 2017
In the aftermath of partition, the Constituent Assembly adopted a pluralistic concept of citizenship, which has been undergoing a transformation to a more exclusionary and majoritarian conception.
AFP/Getty Images
In the aftermath of partition, the Constituent Assembly adopted a pluralistic concept of citizenship, which has been undergoing a transformation to a more exclusionary and majoritarian conception.
AFP/Getty Images

The concept of an Indian citizen, as envisioned under the Indian constitution, has been undergoing a subtle transformation for several decades. This shift has been underway since the 1980s, and its culmination in the Citizenship (Amendment) Bill, 2016 will likely result in a substantive transformation.

The Citizenship (Amendment) Bill, 2016 was introduced in parliament in July 2016 and is presently under consideration by a joint parliamentary committee. The 2016 bill is the latest in a series of amendments to the Citizenship Act that seeks to legislate a majoritarian and exclusionary conception of citizenship, replacing the existing—however weakened—pluralist and inclusive conception.

Constitutions do not ordinarily define the source and basis of citizenship. In the aftermath of partition and the gigantic scale of the movement of people across the newly-defined borders of India and Pakistan, the Constituent Assembly defined the term in India in Articles 5–11 of the nation’s Constitution only for the immediate purpose of deciding the citizenship of those moving across these borders. The task of formulating a law of citizenship for ordinary times was left to the Indian parliament, which passed the Citizenship Act in 1955.

Both before and after the Partition, the members of the Constituent Assembly had heated exchanges on the subject of citizenship in India. The central question in this debate was on whether the basis of Indian citizenship should be an individual’s birth on the soil of the country—known as jus soli citizenship—or an individual’s descent, or the citizenship of their parents—jus sanguinis citizenship. The Assembly settled on the first as a form of “enlightened, modern, civilized” and democratic citizenship, as opposed to the second, which it said was “an idea of racial citizenship.” This was a progressive decision, in keeping with the inclusive character of the movement for freedom. The Citizenship Act incorporated both these conceptions, providing for citizenship by birth as well as descent. It defines an illegal immigrant as a foreigner who enters India without valid travel documents, or a foreigner who remains in India beyond the time permitted as per their travel documents.

The proposed amendment is a deviation from the conception of citizenship in India delineated in the Citizenship Act, 1955. It smuggles religious difference into a law that is presently religion-neutral. The amendment bill provides that Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan are deemed to be “persons belonging to minority communities” and “shall not be treated as illegal migrants for purposes of this Act.” It further provides that they shall be eligible for citizenship after six years of residence in India as opposed to the earlier requirement of 12 years. In other words, persons belonging to six religions from three countries are no longer to be described as illegal migrants and are therefore eligible for fast-tracked citizenship. The silent implication is that Muslims from these countries would continue to be treated as illegal immigrants and would not be eligible for the same relaxation.

Niraja Gopal Jayal Niraja Gopal Jayal is Professor at the Centre for the Study of Law and Governance at Jawaharlal Nehru University. She is the author of Citizenship and Its Discontents: An Indian History; Representing India: Ethnic Diversity and the Governance of Public Institutions; and Democracy and the State: Welfare, Secularism and Development in Contemporary India.

Keywords: Muslims religion illegal immigrants immigration citizenship
COMMENT