How the Constitutional Aspect of Citizenship is Getting Blurred in Regional and Religious Assertions

In a detailed judgement on October 17, 2024, the Supreme Court of India seemingly laid to rest any controversy relating to the Section 6A of the Citizenship Act 1955 conferring citizenship on a specific class of migrants from Bangladesh to Assam.

While the controversies relating to Assam and the north-east India are of a special category, historically and constitutionally independent India that emerged from the British Indian empire, on August 15, 1947, was prone to facing contestations regarding citizenship from day one.  No wonder, the SC’s attempt to end one aspect of the controversy leaves another relating to religion still smouldering.

The partition of the British India with an obdurate stress on the construction of a nation based on ‘religion’ was bound to leave a shadow on the formation of citizenship in India, which avowedly shaped its nationhood on secularism by framing a constitution accommodative of regional, cultural and religious diversity.

However, as East Pakistan negated the Muslim League’s idea of nationhood based on Islam in the next 24 years and emerged as Bangladesh – a nation based on linguistic affinity – on 26 March 1971, it weakened the logic of religion-nation link in the subcontinent. No wonder, the two partitions in south Asia – of India in August 1947 and of Bangladesh in March 1971 – created issues relating to citizenship rooted equally in the process of migration in a region that had a fair degree of organic unity in its geography.

Yet, the politics of the past decade in India has dragged religion again in defining citizenship, much to the peril of social cohesion and constitutional rectitude.  Thus, it is worthwhile to begin an analysis of citizenship in India from the current SC judgement that digs deep into the constitutional roots.

India’s constitutional citizenship

The Indian Constitution came to life in less than two and a half years since independence, even as the process of partition in terms of population transfer was still on; obviously, citizenship was being reconstituted and reshuffled in the Indian subcontinent.

The Constitution brought tremendous clarity in defining citizenship in Part II (Articles 5-7); and captured the fluidity of the political situation that was bringing about kaleidoscopic shifting shapes of citizenship.  While Article 5 defined citizenship at the commencement of the Indian Constitution, Article 6 laid down rights of citizenship of persons who migrated ‘to the territory of India from the territory now included in Pakistan’.

Article 7 went ahead of Article 5 in taking into consideration the process of transfer of population referring to migration taking place between 1 March 1947 to 26 January 1950.  It also takes into account the complex process of migration from ‘India’ to the territory that became Pakistan and eventual permanent return back to India.

However, the building up of the Naga issue in the north-east India threw up fresh citizenship challenges since 1946.  This is an ember that is still smoldering, even as the region has been unceasingly throwing up issues of citizens that have not been easy to resolve.  Second, and an important aspect of reimagining citizenship beyond being an Indian also expressed itself from the early 1960s, i.e., soon after the reorganisation of states, was emerging demands for new states.

This led to a political journey from initially organised fourteen states to 28 presently.  Despite single citizenship, the assertion of this identity, which has fortunately been beyond religion, has been a significant political development in India.

Citizenship Act, 1955, Section 6A

Section 6A of the Citizenship Act, 1955, also resulted from the issue of citizenship emanating from the north-eastern region – from Assam following an amendment in 1986.  It has also been linked to the issues underlined above that emerged from the two partitions in the subcontinent, particularly the creation of Bangladesh.

Citizenship Act enacted by Indian Parliament in December 1955, five years after the Constitution of India was adopted, was expected to end controversies regarding citizenship in independent India.  However, the movement for and the creation of Bangladesh led to large-scale refugee influx – both Hindus and Muslims – into India.  The long-term result was that a large number of refugees stayed in India and got spread across the country in search of livelihood.  The border between Bangladesh and India being porous and with the surrounding states having linguistic and cultural affinity, the incessant flow caused unease.

Arising apprehension over change in demographics, language and culture as well as pressure over resources in a state with severe employment deficit led to the Assam Movement in the 1980s.  The all-Assam Students Union (AASU) spearheaded a movement focused on ouster of the foreigners, stressing distinctive Assamese identity, demanding differentiated citizenship.

Grounded in the linguistic/cultural identity of Assamese people, this peaceful movement later passed on to the United Liberation Front of Asom (ULFA), which emphasised unequal development and discrimination.  While the movement had emphasis on Bengalis and Bangladeshis inundating the state disturbing its distinctive Assamese identity and culture, apprehension on religious imbalance was also there.  This powerful sentiment of crisis in citizenship in Assam had a long-term impact on Indian politics and on citizenship.

Prime Minister Rajiv Gandhi’s ‘politics of accord’ was extended to Assam in less than a year after he came to power.  The Assam accord dated August 15, 1985 with the leaders of the movement brought in Section 6A in the Act, creating a template of hierarchised model of citizenship in Assam.

Shifting the chronological boundary of citizenship for the state from July 19, 1948 to March 25, 1971 for Assam, it also created a category of residents, who needed to prove their citizenship claim.  The scrapping of the IMDT Act by a three judge bench of the Supreme Court in 2005, rendered immigration from Bangladesh not only as illegal entry, but as an act of aggression.  The SC created a category of ‘infiltrators’ who posed a threat to national security, which has played out in recent years with a mix of national and religious identities.

However, in the PIL filed in 2012, the petitioners pleaded that immigrants exerted pressure on Assam’s resources. Granting citizenship to them is according a special privilege while denying equal rights to Assam’s indigenous people. As the SC upheld Section 6A and the existing arrangement in Assam in a 4:1 majority judgement recently, it upheld the sanctity of the 1985 accord.  This leaves the petitioners’ claim that the provisions seek to shelter “foreigners” over the rights of the Assamese citizens.  They argue this is step-motherly treatment to Assam and its ethnic Assamese identity.  No wonder, in the current atmosphere of the country, this creates a possibility of the future flare up.

The future citizenship conundrum

Unfortunately, the element of religion introduced through the CAA and the exercise of the NRC that privileges the victimised Hindus in other countries, particularly those of the South Asia, and otherises persons of other religions in the citizenship register, creates another tinderbox.

This has had impact on the Assam politics.  The vitriolic rhetoric of the previous and the present chief ministers of Assam for the past decade, and particularly since the passing of the CAA in 2019, have pushed the issue of religion avoidably on the forefront in the citizenship discourse and politics.

The agitation against the CAA and NRC, enacted by the Government of India on 12 December 2019, sparked a widespread national protests against the Act and its associated proposals of the NRC.  The protests predictably originated in Assam and spread swiftly to Delhi, Meghalaya, Arunachal Pradesh, and Tripura on 4 December 2019.

Breaking out rapidly across the country, protests resulted in widespread arrests, mostly of activists of a community, several of them young students, who are still languishing in prison.  Neither the judgement discussed, nor protests in the country have exerted enough pressure for their release.  Unfortunately, religion has entered the discourse on citizenship in India.