Framers put forth a plural, secular basis for citizenship
The plural basis of citizenship was carried into the Citizenship Act, 1955 whose primary purpose was to determine the principle of “acquisition and termination” of citizenship to supplement the constitutional provisions.
The way a country defines who its citizens can be, defines what the country is.
In the case of India,70 years ago, we gave ourselves a Constitution, which defined who we were by adopting a secular and religion-blind criteria for citizenship. Part II of the Constitution provided for citizenship by birth (person himself born in India), descent (either parent born in India) or domicile (has been residing in India for a certain amount of time).
In addition, all those persons who had migrated to India as a result of Partition and even those who had migrated to Pakistan but returned to India before a certain date were entitled to citizenship. Thus, a Muslim resident of India who migrated to Pakistan on or about the time of Partition but returned to India before the Constitution came into force on January 26, 1950 was also entitled to claim Indian citizenship. These principles were accepted after considered debates in the Constituent Assembly.
This plural basis of citizenship was carried into the Citizenship Act, 1955 whose primary purpose was to determine the principle of “acquisition and termination” of citizenship to supplement the constitutional provisions.
Changes were made in the details of the citizenship law from time to time. For instance, in 1986, on account of apprehension that certain persons who were foreigners, were giving birth to their child in India, solely for the purpose that the child acquires Indian citizenship by birth, an amendment was made that applied prospectively so that all those who were born in India post 1987 would be eligible for Indian citizenship only if one of their parents was also an Indian citizen. While this was a significant departure from the principle of jus soli, which guaranteed citizenship solely by birth, it was not based on identity of the individual, particularly immutable ones such as religion or country of origin.
Different waves of migrants, be it the Tibetans from China post 1950s or the Ugandans of Indian Origin who were thrown out during the reign of Idi Amin in the 1970s, were granted citizenship under these religion neutral, race neutral, ethnicity neutral and origin neutral laws. In fact, the law of citizenship in India, was so non-controversial that until the passage of Citizenship (Amendment) Act, 2019 or CAA last month, most practising lawyers were not even aware of the details of Indian citizenship law.
This secular model of acquisition of citizenship served many objectives. The first and most important is that it gave assurance to every citizen, irrespective of their religious or ethnic identity that they are equal to every other citizen in the country.
This “de jure” equality may not always result in a “de facto” equality. Certain caste groups or religious groups have continued to enjoy more power in the society than others. But the constitutional assurance that before the laws everyone is equal has broadly assured every religious/ethnic group in the country that institutionalised discrimination is not one of the objectives of the state.
Second, the plural and secular basis of Indian citizenship has allowed India to evolve an international reputation of being an inclusive society. India stood out not just in South Asia, which has large number of theocratic states with preferred state religions such as Pakistan (Islam), Srilanka (Buddhism), Bangladesh (lslam) and Bhutan (Buddhism) but also as a potential inclusive world leader. Countries that discriminate among their own populations do not have a history of emerging as global leaders.
Subsequent to the passage of the CAA over the last one month it is clear how both these advantages have evaporated. Protests across the country by several sections of the society, have shown that the people are not protesting because the amendment in the citizenship act will impact them personally but because the foundation of equal citizenship as a core founding value is sought to be breached by the amendments, even if one looks at the CAA in isolation without combining it with National Register of Citizens (NRC).
Unsurprisingly, the repeated assurance by the government that the CAA does not seek to take away citizenship of any existing Indian citizen has had no impact as people are not reacting to just the CAA but have assessed CAA for what it really is, a significant change on how the state will from hereon prioritise citizenship claims around a certain preferred religion.
Similarly, the international criticism, particularly in the international press of the Narendra Modi government and the direction it is taking India into has been scathing. Having survived its first term in the jet stream of India’s global secular credential, Modi’s India has quickly become like Erdogan’s Turkey in the international mind.
One would have hoped that given the serious negative domestic and international fallout of the CAA, the government would have retraced its steps. But in its obstinacy, the government has dug its heals in. Citizenship is described as the “right to have rights” and an informed and politically aware citizenry such as that of India is unlikely to give up the fight. It has understood that if there cannot be equality in citizenship, there cannot be equality in life.
(Shadan Farasat is an advocate in the Supreme Court)