Citizenship has always been a contested category with its definition being mostly ambiguous, to say the least. However, it is also the essence of the political order and hence a ‘necessary evil’ – necessary as it earmarks rights and duties and evil because it is inherently exclusionary. At the time when the forefathers of the Indian Constitution were deliberating on its nitty-gritty, deliberating ‘citizenship’ formed the most herculean of all tasks.
Ascribing citizenship rights in India is guided by the Citizenship Act, 1955 by four ways, i.e. birth, descent, registration and naturalisation. At the time of independence, the compulsions of partition and rampant migration across the newly demarcated border brought the question of citizenship as a legal claim to the territory and an associational belonging into the fore.
Though the convention was to utilise ethnicity to differentiate personhood from citizenship, there was a wide-ranging consensus amongst academicians that the discourse was highly inclusive at that time. The identification of citizens evolved in multifarious and at times, convoluted ways, but broadly a ‘jus sanguine’ (citizenship by descent) approach was taken. The Citizenship Act, 1955 has seen various amendments guided either by political expediency or people’s demands and have broadly been in the direction of making citizenship laws stringent and more compartmentalised.
When the question of a relationship between nationality and citizenship was to tread the fine line of pluralism, the solution was found within the domain of ‘group-differentiated rights’ or ‘community rights’. Catering to a largely heterogeneous population, the Indian constitution did recognise the substantive notion of equality and had fared better dealing with a large exodus of people from outside than relatively compact and homogenous western states.
The Indian Constitution is largely an affirmation of the ideal propounded by the post-nationalists. Under conditions of pluralism, prior allegiance to a particular nationality cannot serve an integrative function. Collective identity in the modern states has to be based upon universalistic legal principles. People coming from outside should engage with these principles with their distinct history and interpretation. It is only this form of engagement that completes the definition of citizenship as not just a legal claim but a moral belonging.
The recent Supreme Court order to grant citizenship status to Chakmas and Hajongs and their families who were settled in Arunachal Pradesh in the 1960s is in line with the aforementioned views. Since their settlement in the then NEFA (North East Frontier Agency), they have engaged in farming activities, social customs, married in India, and have had families living as a stateless population for over three decades.
The Rajya Sabha Committee on Petitions, submitting its 105th report in 1997 recommended ascribing citizenship rights to Chakmas who came before 1971 and to those who were born in India. These recommendations were never implemented and in their absence, arbitrary rules were used to grant citizenship rights to them. Premising its judgement on the Citizenship Act, 1955, the Supreme Court (SC) ruling states that citizenship rights have to be given to all those who satisfy Section 5 of the Act.
Section 5 (1) (a) of the Citizenship Act, 1955 states that all people of Indian origin residing for seven years in India can be granted citizenship by registration. The Centre has therefore promised to resolve this problem while paying heed to the concerns of the Arunachalis who will be reduced to a minority if the Chakmas are given complete rights. Though the concerns of a change in the ethnic composition are not unfounded, one cannot ignore the fact that the Chakmas have been participants in the economy and society of Arunachal Pradesh even before it was formed. They are, therefore, as much an integral part of the socio-cultural milieu and it is about time that their legal-political rights be recognised. This being said they should not impinge upon the individual privileges of the original inhabitants. This is a classic case of the Indian state making stakeholders out of rebels as enunciated by citizenship theorists like Subrata Mitra.
If the Indian state has, therefore, historically accommodated refugees and been responsive to their demands, why has it suddenly upped the ante against Rohingya Muslims? Why has it waged a multi-pronged battle for their deportation? It is important to note here, that this is not the first time that such a decision has been taken and that these people fall into the category of ‘illegal immigrants’ who are bound to be deported by the law of the land.
The Foreigners Act, 1946 gives powers of discretion to the Centre in matters of entry or departure of foreigners, and thus the state is only exercising its jurisprudence in this regard. The influx of ‘illegal migrants’ from Bangladesh has always been a menacing issue facing the Indian state and its people. The 1983 Illegal Migrants (Determination by Tribunals) Act was struck down by the SC in 2005 for exacerbating the crisis in Assam and for failing to return Muslims who entered Assam post-1971. It is therefore not just the present government in power but also the judiciary that recognises the gravity of the issue.
The argument that there has been a differential treatment of the Rohingya owing to their religion holds no steam. The Assam Accord stipulated that all those who came to Assam before 1966 or were registered in the 1967 electoral rolls are legitimate citizens. While those who came after 1966 would have to go through a process of registration, the ones who entered post-1971 were regarded as “illegal immigrants”. Not only is the legal-political recognition of their rights a contravention of the Citizenship Act, but they have also never constructively engaged in social relations and consequently never have been consolidated.
While misgivings about their presence as a threat to national security should not be generalised across the community, their legal claim to reside within the territory of India is itself mistaken. Most of them have entered India without any documents and permission and are therefore illegal residents. The Constitution envisages certain rights to all people residing within its territory irrespective of their citizenship status. However, its applicability to ‘illegal migrants’ can be taken only with a pinch of salt. Besides, the 2003 Amendment to the Citizenship Act has seised the citizenship rights of all illegal immigrants. Hence, the state is entitled to take all due measures to deport illegal migrants albeit in a rule-bound manner.
This is not to say that the state has no obligation towards the refugee population in distress but to emphasise the importance of a bonded world for rights and duties to have meaning. An elected state by its very definition is responsible for providing social goods first to its citizens. As scholars like Michael Walzer put it, even social goods have culturally-specific meaning and relevance and can, therefore, operate within a bonded world.
The nation as a political community is the closest to a world of common meanings which are created, sustained and de-constructed by the citizens who by default are also the prime beneficiaries. They are the stakeholders as they have a real link to and an interest in the permanent membership of the political community. The welfare of the citizens of a nation will always remain the first principle even in the face of de-territorialisation of certain rights. So even while citizenship remains a concept in a state of flux, citizenship rights remain a legal constant for the state to oversee.