Constitutional Studies

Professor Sudhir Krishnaswamy

Vice-Chancellor
National Law School of India University
Lecture 9
Citizenship: Challenges and Future
Welcome back to lecture 2 on citizenship in the Constitutional Studies course, we are in week 4
as you know and, in this lecture, we will focus on the challenges and the possible future for
debates around citizenship in India and abroad.

(Refer Slide Time: 0:42)

Let me quickly recap, so far in this week we introduced the key ideas around citizenship the
Latin phrases “Jus Soli, Jus Sanguinis” which form the alternative models for the grant of
citizenship. We also looked at common vocabulary around insiders and outsiders in political
societies, who are aliens, who are immigrants, who are refugees and so on and so forth that was
in part one of the lecture.
(Refer Slide Time: 1:10)

We then turned in part 2 to look at some co-provisions of the Indian constitution as well as the
key legislation in the field which is the citizenship act 1955. We noticed that parliament had been
given considerable power in this field. And over the years has defined this field by the legislation
and subordinate legislation.

We looked at whether citizens were entitled to all fundamental rights, whereas non-citizens were
excluded from fundamental rights and we found that the picture is more complicated, we noticed
that non-citizens enjoy rights as well, but citizens above all enjoy the right to public office as
well as the rights of political participation striking both in international law and domestic law.
Non-citizen residents may also have rights to social and cultural and in some cases economic
benefits even if they do not have political rights. That was the broad survey and discussion that
we had in lecture 1.
(Refer Slide Time: 2:19)

In lecture 2, we are going to focus on the key battles around citizenship India like the United
States has been forged around ideas of migration of people but in a very different way, while the
US has the mainstream narrative of the US history would emphasize how the country has been
built by streams of inward migration mostly referring to European migration and its openness as
a culture and a animation to migration.

Indian history has been framed by a very different narrative around the question of migration we
were founded in that period 1947 to 1950 by varying a very bloody exchange of large
populations that we know that we call partition. Subsequently, India received a rather large
influx of refugees from Tibet and this was accommodated in a particular way which we want to
understand here.

Sri Lankan refugees streamed in the 1980s and recent debates focused on the new Citizenship
Amendment Act primarily on Bangladesh migration into northeast India. I want to conclude with
a brief review and overview around debates on OCI and NRI status these are not debates about
people who want to come into India, but these are debates about Indian expatriates all over the
world.

And in many ways is the other side of the coin to a debate about migration oftentimes debates
about migration tend to be only debates about people who want to come into India maybe
imagine that we think and consistently about the problem so that both those who come into India
and those who leave India in search of economic opportunity may be treated similarly in a
common framework of citizenship.

(Refer Slide Time: 4:39)

Let us begin first with the debates around partition and I think most of you would know that
partition was arguably the largest movement of people across political boundaries in the history
of mankind and that occurred in a very short period of time accompanied by remarkably high
levels of violence and especially sexual violence.

Partition also meant that by the drawing of political boundaries in the creation of two nations,
people who were accustomed for many generations to thinking about South Asia as a single
political entity suddenly had to make choices about where they belonged. While one country
Pakistan defined itself primarily around an axis of religious identity, in India the early republic
was decidedly secular and hence people could choose whether they sought to stay in India or
leave for Pakistan.

What followed was a decade, two decade long movement of people while much of this happened
in a period of 3 to 4 years immediately following independence and partition. The movement of
people continue over an extended period of time giving rise to the entire body of cases around
citizenship.
In this lecture, I will not cover this body of case law or explain how the Indian Supreme Court
and other courts dealt with questions and movement of people. For this lecture I am just going to
focus on a very insightful and accessible book on “Citizenship in India” written by Professor
Niraja Gopal Jayal of which I have a small extract and let me read this.

“At independence India's choice of Jus Soli as the former principle of citizenship, remember Jus
Soli was birth citizenship, was only partly a function of its legal inheritance, for you sanguinary
would clearly have been an implausible basis for citizenship in a vastly plural society.”

So, decently citizenship what does it mean to be of Indian descent? The Indian descent, India as
a political entity contained people from all over a very vast and plural country and included
many British residents which are chose to stay back. So, descent-based citizenship could be a
citizenship that relied on this plural mass but India in the initial years Professor Jayal reminds us
emphasized a Jus Soli model.

Over time, she suggests legal citizenship has shifted imperceptibly closer to a Jus Sanguinis
regime and remember here that when we start thinking about recent moves to a descent based
model of citizenship we have in mind a particular idea of who is Indian not the expansive idea
that all those people who reside in the subcontinent are Indian by definition not a geographical
idea, but a cultural idea of who might be.

She goes on, the tension between the two conceptions of citizenship was present from the
founding moment of the republic meaning partition, but with the passage of time citizenship laws
increasingly rather than decreasingly informed by the divisive legacy of partition. Put simply
professor Jayal asks us have we learnt the lessons of partition when we are changing our
citizenship laws?

And arguably she hints that India has not learned the lessons of partition with respect to its
citizenship laws by trying to define citizenship in narrow cultural or religious terms we run the
deep risk of reigniting the horrors of partition which occasion the movement of people in this
dramatic way. And these are challenges that we will come back to when we discuss the
citizenship amendment act and its future representations.
(Refer Slide Time: 9:30)

So, much for the partition as I said, I am not going to work through the details of the partition but
if the partition occurred in the early years of the republic the next challenge for the Indian laws
of citizenship was the Chinese annexation of Tibet. Now, those of us who are familiar with that
period of history will remember that in 1959 the Dalai Lama arrived in India and when the
Tibetan uprising was brutally suppressed in Tibet.

They were granted legal asylum the Dalai Lama did not come alone he came with a large group
of followers and residents of Tibet, they were granted legal asylum though not formally under
the UN convention relating to the status of refugees of 1951 and the 1961 protocol because India
did not sign either the convention or the protocol.

However, they were allotted land and housing and were automatically issued a registration
certificate. This policy was continued all the way to 1963 all Tibetans who came to India at that
point but was discontinued in 1963 some scholars speculate because of India trying to mend
fences and consolidate its relationship with China.

What is the registration certificate? It is not a document a full citizenship, however, it is an

identity document for Tibetans which allows them to live in India, to work in India, travel within
India rather freely, a separate identity certificate is issued for international travel. So, when you
look at the two documents on your right, the one in yellow is the identity the registration
certificate identity document Indian travel and the one in is maroon is the one for international
travel.

Now, India has over a period of time received almost a hundred thousand Tibetan refugees this is
not a small number. They however, they enjoy different rights and services depending on their
period of arriving, those who have arrived post 1963 have a much more difficult time than those
who arrived before that period.

India's position on the convention on refugees has been ambivalent if not hostile. India has often
taken the position that this convention suits European countries, its Eurocentric but does not suit
the conditions that a developing country like India faces in Asia. It is not clear what the extent
and the dimensions of that argument might be, but there has been some recent writing on these
questions that those of you who are interested might want to turn to. So, in the 50s we were
defined by the partition exchange of populations in this 60s we were Indian debates were shaped
by the exodus of Tibetans leaving Tibet and entering India.

(Refer Slide Time: 12:49)

And then in the in the 80s the Indian debates around immigration and migration were shaped by
the Sri Lankan Tamil conflict which arose because of the ethnic conflict and tensions between
the Sinhala community the majority Sinhala community and the minority Tamil community,
some might see this as a conflict arising out of language or ethnicity and some might even
suggest religion the language and ethnicity seem to explain much of what occurred in that period.
Almost a hundred thousand Sri Lankan Tamil refugees live in India and of these 60,000 live in
107 government camps across Tamil Nadu. So, please note that while the partition was the
largest number, the number of refugees and the number of Tibetan refugees are roughly inline.
The Tamil Nadu government together with the central government provides a range of relief and
rehabilitation but nothing remotely resembling the package that was developed for Tibetan
refugees.

Not only is the freedom of movement of Tamil refugees restricted, their limited employment
opportunities and they certainly were not given any lands. Strikingly many of these Tamil
refugees might claim historical origin from South India. Nevertheless, their long pending
demands for Indian citizenship have not been heated and they remain, we noticed that India has
not signed the convention, so they are not officially regarded as refugees. So, they remain in this
in between state in various parts of Tamil Nadu.

Surprisingly the Sri Lankan Tamil influx was not dealt with even by the recent amendments on
the citizenship amendment time, for various reasons it appears that the government of India is
deeply concerned about questions of Bangladeshi immigration into Northeast India but the same
level of attention has not been paid to the nearly hundred thousand Sri Lankan Tamil refugees in
Tamil Nadu.

(Refer Slide Time: 15:24)

From looking at the three debates around the influx of people into India I am going to shift my
attention in this path to focusing on this part where those who leave India, people who travel out
of India in search of work are given something approximating citizenship status even though
they may not even be resident in India, this is a curious set of developments and let us spend a
little bit of time understanding how this might have occurred.

The first category we need to pay attention to is the category of the Non-Resident Indian. The
non-resident Indian is an Indian citizen, this is the first and important notable point that we must
remember, but this citizen is not resident in India is resident overseas. The classification that you
may be a non-resident Indian depends on the number of days that you spend in India in any
financial year.

At various points the number of days required to be considered a non-resident Indian has shifted
so it is for all intents and purposes a tax category, it gives Indian citizens some benefits with
respect to their taxable income and some many Indian affluent Indian citizens may choose to
maintain an NRI status to prevent extensive tax liabilities in the country.

Subsequently a category called persons of Indian origin emerged. Now, a person of Indian origin
is a citizen of another country is not an Indian citizen, but may be able to show a connection with
India either by birth or by descent. This category emerged and became reasonably influential but
has now been subsumed after 2015 and the wider category that we call the overseas citizen of
India.

Let us pay some attention to the overseas citizen of India which is the current legal category by
which we grant certain benefits to non-citizens of India in various ways. An overseas citizen of
India is not a citizen of India at the moment but may have been a citizen of India, a former
citizen or may have been eligible to be a citizen of India at the time of the commencement of a
constitution or belong to a territory that became part of independent India or and this is the so
that is one part which deals with a historical connection to India.

And the second part is purely a question of descent, one is either a child or a grandchild or a
great grandchild of such a citizen. So, three layers, three generations of connection to India
would entitle a person who is legally not a citizen of India to claim to be an overseas citizen of
India.
The constitution amendment act of 2003 created this category and the category has been
developed based on the recommendations of a high-level committee on cultivating relationships
with the Indian Diaspora which argued for the provision of dual citizenship but only to a few
select countries essentially the developed world Australia, Canada, Finland, Ireland, Italy,
Netherland, UK and the USA.

The amendment acts though what emerged out of this report was a broader category that we just
discussed the definition of the overseas citizen of India which is neutral to the citizenship that
one current currently possesses. OCIs have lifelong visa validity, they can come into India at any
time using their OCI card they have a right of entry.

Moreover, unlike the rules of naturalization that we had studied in the previous lecture where one
might have to be in India for 9 out of the last 12 years OCIs may apply for Indian citizenship
after 5 years with the minimum stay requirement of just 1 year. So, you hold the OCI card for 5
years and you stay in India for 1 year and you can apply for Indian substitution.

OCIs do not have political rights, they can neither vote nor can they contest in elections to the
Lok Sabha state assignments, nor can they claim any rights to public employment and are not
eligible for public offices. However, barring these restrictions on political rights and public
employment OCIs are treated as Indian citizens in almost any other set of services.

For example, with respect to application and the ability to write exams, competitive exams for
admission to Indian Universities OCIs have a preferred status almost equivalent to those of
Indian citizens. So, it is quite remarkable that while India has been quite skeptical and indifferent
to according refugee status to those who have come into India from Tibet or Tamil Nadu, India
has been quite willing to grant a quasi-citizenship status to those who might not even seek to
reside in India but who have had some connection usually by descent we think.
(Refer Slide Time: 21:45)

After moving, we began with questions of migration and the movement of people I then moved
to a question related to the recognition of non-citizens and the granting of them of special status,
granting to them of special status on the basis of their connection with India. And now I turn to
the contemporary debates around the identification of citizens.

In the early years of the republic the problem of identification of citizenship was not a pressing
one no large effort was made to create a national database of citizens nor was there an effort to
require all citizens to acquire a national identity card or some such other identification document.
However, all of that began to change around 2003.

The citizenship amendment act mandated both through the main legislation and through the rules
and regulations the compulsory registration of every citizen of India, local registrars were
empowered to conduct an enumeration exercise and to verify citizenship status. Ostensibly
national identity cards would be issued to all citizens at the end of that process.

This is the origin of what was called the national population register and then what then became
the national register of citizens. So, NPR emerges at this early stage in 2003. At a later stage the
evolution of the UIDAI ‘The Unique Identifier Legislation and Authority’ also known as
Aadhaar was dovetailed into the ongoing efforts to develop an NPR and later in NRC.
The UIDAI the Aadhaar effort was intended to yield a comprehensive identity database of the
usual and notice the reference residence in the country for six months or more. The other
registrars were not interested in making a determination about citizenship, they were only
entitled to make, they were entitled to issue cards based on ordinary residents.

Aadhaar as we know collected both demographic and biometric data. So, it was meant to be a
unique identifier without having to settle the question of citizenship. Notably providing of
Aadhaar details was legally voluntary though as we know through creeping rules and regulations
and it became quasi-mandatory in that process.

While notionally the NPR and the NRC process, the national registry of citizens process were
meant to be distinct from the Aadhaar project at various points there were suggestions that one
could be interpolated into the other mixed up with the other to generate a larger integrated
database.

So, Aadhaar, NPR, NRC. Now, the Aadhaar act as was initially established sought to use
Aadhaar as the basis for personal identity but after the Supreme Court struck down various
provisions of the Aadhaar act this no longer came into effect. So, Aadhaar serves as one form of
identification among others.

(Refer Slide Time: 26:09)

Let us now turn to the NRC process, the NRC process was critically shaped by the question of
the politics of the northeast in particular the state of Assam. In 2013-14 there was an application
based system for the NRC and not an enumeration based system where people went out and
counted those who were there.

In this application based system applicants were allowed to furnish their pre 1971 identity proof,
1971 being the relevant year for the creation of Bangladesh and as the concern was primarily
about Bangladeshi immigration all applicants were required to show a pre 1971 proof of their
parents having resided in India and their relationship with India.

Those unable to furnish these groups were to be regarded as illegal migrants and to be placed in
detention camps and subsequently deported. So, the NRC already had developed a method by
which one would be compelled to make an application and furnish proof to the relevant authority
and if one failed to provide this proof one could be treated as an illegal migrant and potentially
deported.

Then the citizenship amendment act of 2019 added another layer, another filter to this process
because non-muslim illegal migrants were not required to submit proofs for listing as a citizen.
So, non-muslim illegal migrants were removed from the scope of the NRC process in Assam, as
we know that led to several protests but we need to better understand what is the citizenship
amendment act the CAA of 2019 to develop a fuller picture of what these debates and protests
are about.
(Refer Slide Time: 28:25)

What was the citizenship amendment act 2019? The stated objective of the act was to grant
citizenship to migrants belonging to certain religious minorities in certain countries. The
assumption was that these religious minorities persecuted and in these neighboring countries and
it almost seemed to grant a right of return to certain populations to independent India.

The citizenship amendment act 2019 amends the definition of illegal migrant under the
citizenship act of 1955. It allows for citizenship by naturalization or registration for persons
belonging to Hindu, Sikh, Buddhist, Jain or the Christian community who migrated from
Afghanistan, Pakistan and Bangladesh before 31st December 2014.

Now, you might ask why 31st December 2015 and you will find some explanations for that data.
But what it essentially does is it paves a special path for citizenship to a selected group of
religious migrants into India from select neighboring countries. It also exempts them from the
application of the Foreigners Act.

Now, many of you will recall that the NRC process and its intricate interconnections with the
Citizenship Amendment Act of 2019 presented, resulted in a range of political protests across
India, currently this legislation is under challenge, it is before the Supreme Court on the ground
that it violates a right to equality and a right to life and that it discriminates between similarly
situated people on the basis of religion and we will find in the next few months to come a
decision at the Court that might well settle these controversies.
But notice and I will say something in conclusion that the quotation that we read from Professor
Jayal that the Indian model of citizenship is moving from a birth model to a descent model is writ
large in the processes related to the NRC and the CAA.

(Refer Slide Time: 31:13)

I now move to part 4 and the last part in of the lectures on citizenship and here I will focus on
some core issues, global issues around citizenship, I want to talk a little bit about Indian
expatriates and their immigration status in different parts of the world because it is important for
India and Indians to think about citizenship not simply as a problem of those who want to come
into India but also of Indians who want to be a part of various countries around the world for
various reasons. I also want to spend a little bit of time talking about potential futures of
citizenship a global or a national citizenship and what might we expect in the years to come.
(Refer Slide Time: 32:03)

We know that India has a large Diaspora, Indian expatriates have traveled across the world in
search of work for other personal reasons for centuries but in recent decades this outward
migration path has grown. West Asia is one of the most important areas to which most Indian
migrants have gone right up until the Covid crisis we estimate almost 7 million population of
Indians living and working in West Asia.

Often, we read in the papers about dismal labor conditions and very hard conditions of work for
a vast majority of these migrants. But nevertheless, the exchange rate and the opportunity of
work make such migration attractive. These immigrants pay their dues, their taxes and other
levies in West Asia but there is no clear path to citizenship, it is unclear even if one is a resident
in these countries for long periods of time whether there is a basis for making citizenship claims.

Significantly for India, West Asia is the largest group of Indian citizens, Indian expatriates in any
part of the world. So, whenever we think of expatriates with the Indian discourse seems to focus
excessively on the Diaspora in Europe and North America and ignores the Diaspora in West
Asia. But this is indeed the region where the largest number of Indians are migrated.

Let me turn my attention to Europe and North America. The US immigration and nationality act
of 1965 brought about a sea change in US immigration law which was still up until that point
racially tinged, there were racial quotas on immigration and Indians did not have a significant
part of that quota.
But once racial quotas and racial preferences were eliminated in the immigration process Indians
emigrated in large numbers to the United States. Today almost 1.2 million Indians reside in the
US on H1B visas or Green Cards navigating their way to a very complicated path to citizenship.
Now, the concerns of these Indian expatriates has and because of the social class and the superior
human development indicators that these migrants have usually very educated and wealthy
Indians in the United States they have garnered a disproportionate amount of attention both
political and cultural and among the Indian expatriates.

In Singapore, Canada and Australia, Indians have applied in record numbers to become
permanent residents as a first step towards citizenship, as we know in the last half decade the
numbers emigrating to these three jurisdictions have skyrocketed. European nations are less
welcoming of Indian immigration overall though the UK may be something of an exception
given a long cultural and historical connections albeit colonial ones.

European nations have a complicated model of citizenship though that is coming under some
pressure and may while change in the next decade. But the populations of Indians in Europe is
significantly smaller than in North America and West Asia. Oftentimes you will find Indian
arguments for increased and relaxed rules of citizenship and migration in West Asia, in Europe
and North America while simultaneously strong support for very strict rules against migration
and citizenship in India.

It is something this contrast paradox in the nature of arguments about citizenship by Indians who
emigrate outside India and by those who we want to keep outside India is something that we
must think through and reconcile in thoughtful ways.
(Refer Slide Time: 36:58)

So, in the last in the conclusion of this lecture in the last slide I want to focus on how we might
think about citizenship debates more generally, how should we think about it and can we
reconcile at least be alert to the problems that might arise by taking certain positions both
domestically and globally.

One approach is to think about the problem of citizenship as a problem of global citizenship,
why are not we just citizens of the world, do we need national models of citizenship? We
understand that despite the presence of refugee law and states that have signed up to the
convention on refugees in the 1967 protocol, national legal and cultural regimes make safe
migration into Europe and North America extremely rare.

Thousands of migrants die each year trying to make these very difficult perilous border crossings
into the US and into Europe. How could we sort this problem out? We understand the economic
logic of migration but how could we create a legal regime that respects this economic logic,
while at the same time regulating and properly channeling questions and migration?

Is the alternative to move towards positions around open borders for Indians migrating out of
India into various countries this is a very attractive option why should we be restricted if we
choose to work in Dubai or in some other part of the world in Singapore, there should be a free
movement of labor, if we are well trained and qualified to do these jobs then why should we be
restricted?
But that same rule might apply to a migrant of some other South Asian state who may choose to
pursue an economic career in India. If we indeed move in this model of citizenship, a global
citizenship, we would emphasize that the most important criteria for citizenship would be
naturalization, do you want to live in a particular country, are you willing to pledge allegiance to
the constitution and institutions political institutions of that country?

If the answer to these two questions is yes, that all countries might adopt a naturalization
protocol that did not have racial, cultural or linguistic restrictions, so long as people were willing
to move voluntarily sought to move they may be allowed to live. Many might argue that this
form of global citizenship is a utopian aspiration because countries seem to be pushing in
precisely the opposite direction towards more nationalist restrictions on citizenship.

So, the other model would be to have a model of citizenship that was highly nationalist and
restricted, such a model might rely on a Jus Sanguinis kind of model as we discussed with India
and CAA 2019 or it might rely on a Jus Soli model that is required compulsory birth in a country
in any event a Jus Soli, Jus Sanguinis model would emphasize a blood or a biological connection
to a land rather than emphasizing where one wants a voluntary connection to a land.

Models of citizenship might be built around ideas of civic citizenship the fact that we belong to a
country, one country under a constitution or might emphasize models of ethnic or racial
citizenship if we say that for example that a country is a theocratic country that emphasizes one
religion.

So, if Sri Lanka emphasizes its Sinhala identity or if India emphasizes its Hindu identity, the
basis for citizenship a membership in those political societies would be shaped and molded
around these identifiers rather than our willingness to conform to a constitution or to its plural
values.

Recent debates in India CAA, NRC debates test whether a religious or civilizational basis for
citizenship will replace a civic constitutional citizenship in India. This kind of replacement will
not be peaceful nor is it likely to occur quickly, it appears to be a long shift and we might have to
watch these shifts carefully to understand where India is going.
One pathway for a CAA 2019 is to resemble something like the Israeli right of return which
extends to every person of Jewish descent, no matter where they were born or assigned. So, this
is a Jus Sanguinis model of citizenship purely based on a cultural slash religious identity based
marker which can give rise to a full citizenship in a country irrespective of where one might
actually reside or one might have grown.

The really critical question for all of us to think about as we conclude this section on citizenship
is whether the recent CAA amendments resemble a shift to this kind of an Israeli descent based
model of citizenship? Now, whatever our individual and independent views on these questions
might be, we must recognize that such a descent based model of citizenship should it grow
would affect not only those who might want to come into India and those who are residing in
India but those who choose to move out of India because arguably this kind of model of
citizenship when adopted elsewhere would be hostile to Indian expatriate communities wherever
they are as they would be treated as perpetual outsiders or worse in their countries, their current
country's residents.

The ability of all of us as citizens of the country to take this inside, outside view of citizenship is
critical for us to formulate a position that is both constitutionally sound as well as politically and
economically sound for the billion plus people who live in this country called India. With that I
close lecture 2 of week 4, look forward to seeing you back in week 5.