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Citizenship essentially is a bundle of rights. We most often take these for granted – unless challenged; consequences of this right being revoked are unimaginable. The question of how to determine the citizenship status of people living in Assam is yet again pending before the Supreme Court since 2009, in the National Register of Citizens (NRC) Case.
In 1955, the Indian parliament passed the Citizenship Act (the Act): “An Act to provide for the acquisition and determination of Indian citizenship.”, with future amendments in 1985, and 2004, among others.
On July 23, 2019, the last date of hearing in the NRC case, the government raised two very specific questions of law before the Court: firstly, would the striking down of the Illegal Migrants (Determination by Tribunal) Act (IMDT Act) invalidate all the orders that were passed under the Act? Secondly, what limitations would be placed in the application of Section 3 of the Act, to the people of Assam? Do these questions of law need any reconsidering?
The Court, stating that it would take up the matter on Wednesday, August 7*, invited “…other stakeholders, in a representative capacity, to appear before the Court, if so desired,” to answer these specific questions. For the first time since 2009, people affected by the issue have an opportunity to be heard.
In the first instance, the question before the Court is whether people who have already proved their citizenship under one law, need to further prove the same, with no change in circumstances, under a succeeding law. In the prayer before the Court, the State Coordinator, NRC, Assam stated: “As such, directions are sought about the acceptability of orders of IMDT, whether declaring the person to be Indian or Illegal Migrant.”
Till the time that the IMDT Act was struck down by the Supreme Court in 2005, the Act was law of the land. Can the orders under the Act now be revoked, 13 years after it was struck down, and 35 years after it was enacted? Would not the principle of retrospectivity apply for actions taken under the IMDT Act, and orders passed while it was still in force? Would this also not be covered by the doctrine of double jeopardy?
The IMDT Act was replaced by the procedure conducted under the Foreigners (Tribunal) Order, 1964, before the Foreigners Tribunal (FT).
The other pressing question relates to the issues of citizenship by birth and by descent under the Citizenship Act, 1955. The main issue before the Court is the inclusion of people either of whose parents fall within the categories of Doubtful/Dubious Voter (DV), Declared Foreigner (DF), or Cases Pending at Foreigners Tribunals / Other Courts (PFT) (DV/DF/PFT). Since 1997, names of individuals on the voter list have been marked with “D,” meaning doubtful or dubious voter, without proof as to why. Subsequently, their citizenship status is determined by the Foreigners Tribunal, under the 1964 order.
On Thursday, the Court will decide the question of citizenship of people “either of whose parents” fall within the DV/DF/PFT category – since citizenship is, among other things, acquired by birth and descent. The Citizenship Act lays down a very clear legal position to this effect.
Section 3 of the Act, providing for citizenship by birth, states that a person becomes a citizen by birth if born in India after January 26, 1950, and before July 1, 1987. If born on or after July 1, 1987, at least one parent must be a citizen, and for those people born after December 3, 2004, neither parents should be an illegal migrant.
However, despite Section 3, compliance with the condition of birth is not considered sufficient for inclusion in the NRC – many other documents need to be produced. The proposal, pending adjudication before the Supreme Court, states that it is not the citizenship status of “either parents” that matters, but the legacy data – the parent under whose name the NRC application has been filed. This is concerning as 55% of the orders at the FT have been made without the knowledge of the parties. The process of marking D-voter was undertaken in 1997, yet many have still not received any notice to appear before the FT. Therefore, upon the discovery that one’s parent may be a DV/DF/PFT, one is unable to amend their legacy data. The ramification of being declared non-citizens, and potentially stateless, is faced by all future generations.
Section 3(1)(c) of the Act limits citizenship for people born in India, requiring that neither parent was an illegal migrant at the time of birth. However, for those persons born outside India, Section 4(1)(b) grants citizenship if “either of his parents is a citizen of India at the time of his birth”.
Section 3(1)(c) and Section 4 have a direct ramification for those persons either of whose parents may be DV/DF/PFT. However, would this distinction qualify as a reasonable classification, and pass the test of Article 14?
In a case where the legislation states that citizenship can be drawn from either parent, would making the “legacy person” the only criteria for citizenship stand constitutional scrutiny? At the moment, the assumption in determining citizenship seems to be leaning towards exclusion and denial of rights, as opposed to inclusion.
The Act, while providing for “persons covered by the Assam Accord” in Section 6A, makes special provisions for persons who have entered the territory from outside India. Therefore, the first part of the burden of proof is the positive burden on the State to prove that a person has entered from outside India in the specified period. In the absence of such prima facie proof, the Citizenship Act applies as it does to the rest of India. The application of Section 6A does not take away from the substantive rights conferred by Section 3, since the two provisions are not exclusive. Thereby, legally there can be no assumption against citizenship, and the changing documentary requirements for proof for people from one specific state. Would not excluding the application of Section 3 for the people of Assam, in the absence of any constitutional provision, constitute discrimination based on the place of birth?
Another question that plagues the process is, will an ad hoc process that changes daily pass the constitutional test of arbitrariness? For instance, the documentation requirement changed both between stages and while the claims and objections process was ongoing.
Are the questions pending to be answered before the Court on Thursday actual questions of law that beg the Court’s attention? Or, is the Court in the case of Assam, over-legislating? If so, why? While the executive is making masked endeavors to “include” Kashmir in “mainland India” is the judiciary actively “excluding” the State and the people of Assam?
*“This Petition was not listed before court on Wednesday, August 7. It will instead be heard on Thursday, August 8”
Tripti Poddar is a lawyer practicing in the courts in Delhi. As an advocate for community-led policy advocacy, Tripti has conducted research on issues of citizenship, labour, food, housing and healthcare and represented marginalized communities in court for cases of rights violation. She works on legal empowerment projects in different parts of India and Nepal. She has consulted on several legal empowerment projects across South Asia.
Tripti holds a Masters of Public Administration from Cornell University and a Bachelor of Laws (Hons.) from Christ University in Bangalore.