Introduction

 National Register of Citizens (NRC) is a register of all the citizens of India, whose creation and maintenance were mandated by the Citizenship (Amendment) Act, 2003 which was passed by the Parliament of India in December 2003, and received the assent of the President on January 2004.

The Citizenship (Amendment) Act, 2003 amended The Citizenship Act, 1955 by:[i]

• introducing and defining a notion of “illegal migrant”, who could be jailed or deported.
• making illegal immigrants ineligible for citizenship by registration or by naturalization.
• disallowing citizenship by birth for children born in India if either parent is an illegal immigrant.
• introducing a notion of Overseas Citizen of India (OCI) for citizens of other countries of Indian origin.

 The National Register of Citizen (NRC) is till date the biggest initiative taken to verify the citizenship of people residing in India.

The National Register of Citizen (NRC) aims to identify and deport the illegal immigrants who primarily migrated from Bangladesh, after March 25, 1971 into India and settled within the territory.

 Background

Migration is a global phenomenon, and it will continue to do so in the near future.[ii] India has faced such illegal immigration for a long time, majorly into its eastern and north-eastern states primarily form the neighboring country of Bangladesh. After the partition of India in 1947, the political boundaries of the country had changed and made the tradition of migration ‘illegal’.

In the aftermath of partition several Hindus fled from East Pakistan (now Bangladesh) for India to escape communal violence. The same was also seen during the 1971 Liberation war of Bangladesh. Following which there was again a huge amount of migration of the Chakmas and Hajongs who fled to India due to the construction of Kaptai hydroelectric dam and the ethnic conflict in Chittagong Hill Tracts during the 1970s and 1980s.[iii] These three were the major occasions when a stream of ‘forced migration’ was seen but did not continue after the incidents subsidized. However, the illegal movement of people from Bangladesh to India continues till date.

The cross-border movement of the people are due to the several interrelated factors such as: economic, environmental, religious and political.

In 1965, the then Chief Minister of Assam claimed that over one million “illegal Pakistani infiltrators” had entered eastern India between the year 1951 and 1961, and of which 220,961 were in Assam, 459,494 in West Bengal, 297,857 in Bihar, and 55,403 in Tripura.[iv]

 Assam, being a border state where the unique problem of illegal immigration prevails very prominently, had a register of citizens created for it in the year 1951 that was based on the census data of the year 1951. However, the register was not maintained afterwards.

Later in the year 1983, The Illegal Migrants (Determination by Tribunals) Act was passed by the Parliament, creating a separate tribunal process for identifying illegal migrants in Assam. But later in the year 2005 the Hon’ble Supreme Court of India in the case of Sarbananda Sonowal v. Union of India[v] struck down the act declaring it to be unconstitutional.[vi]

In the case Sarbananda Sonowal filed a writ petition under the Article 32 of the Constitution of India against Union of India and Ors. for declaring some of the provisions of The Illegal Migrants (Determination by Tribunals) Act, 1983 as unconstitutional, null and void and also demanded for a consequent declaration that the Foreigners Act, 1946 and the Rules made thereunder would apply to the State of Assam, after which the Government of India agreed to update the Assam NRC.

Following the unsatisfactory progress of the process of updating the Assam NRC for over a decade, the Hon’ble Supreme Court started directing and monitoring the process in the year 2013. The final updated NRC for Assam, published on 31^st August 2019, it contained 3.1 Crore names out of its population of 3.3 Crore, leaving out 19 lakh applicants rendering them stateless.[vii]

NRC in Assam and issues faced

The National Register of Citizens is a register meant to be maintained and expected to contain names and relevant information for the identification of genuine Indian citizens. The register was first prepared by the Government of Assam, after the 1951 Census of India. Since then, it was not updated until the major drive of updating, conducted during 2013-2019, which caused numerous difficulties.

The Immigration (Expulsion from Assam) Act of 1950 was passed by the Parliament of India after the independence of India, concerning the overrun of immigrants into the state of Assam from East Bengal (now Bangladesh). The first National Register of Citizens was prepared in the year 1951 in order to implement the act. However, no objective of the act was accomplished as The Foreigners Act of 1946 did not treat Pakistanis as “foreigners”.

 The people of the State of Assam were in a fear of losing their cultural identity and the demography of the state, due to the immigration that was happening since the year 1950.

A major surge of migration was seen after the year 1950, especially that of Hindu Bengali people, from East Pakistan (now Bangladesh). Due to the loose demarcation of the territory of East Pakistan made it easier for the people to move around.

Post partition East Pakistan suffered from political turmoil and also witnessed civil unrest which finally led to the civil war and separation of East Pakistan from Pakistan and creation of a new country named Bangladesh. These unfavorable conditions gave rise to a mass exodus of population from the war-torn region into the territory of India and out of which most refugees did not return back.

In the year 1965, the government of India took up with the Assam government to expedite the completion of the National Register of Citizens and to issue National Identity Cards on the basis of this register to Indian citizens for identification of the illegal immigrants. But in the year 1966 the Central Government dropped the proposal to issue identity cards, having found that the project was impracticable.

These influx of the illegal immigrants from Bangladesh into Assam led to the outrageous protest by the people of Assam specially the youth and the youth leaders, demanding detention and deportation of the illegal immigrants from Assam, leading to the advent of the Assam Accord. They cited the unexplained surge of electors in the voter list specially in the lower and central Assam, for which they suspected large scale entry of the names of foreigners or illegal migrants in those lists. The undesired events quickly developed into a mass movement which later came to be known as the Assam Agitation or Assam Movement led by the All Assam Student’s Union (AASU) and All Assam Gana Sangram Parishad (AAGSP) and lasted for 6 years. The movement was concluded by the Signing of a landmark Memorandum of Association (MOS)- The Assam Accord, between the agitating parties and the Union of India on 15^th August 1985. The accord ended the agitation but could not put a leash on the illegal immigration.

The provisions of the Assam Accord were:

• Any foreigner will be given full citizenship including the right to vote if he/she had come to Assam between 1951 and 1961
• The foreigners who had migrated to Assam between 1961 and 1971 will be given all the rights of citizenship except the right to vote, which would be denied for a period of ten years and those who entered Assam after 1971 would be deported.[viii]

The final list of the NRC was introduced on 31^st August 2019, following which a lot of controversies were created, even some law-makers openly criticized the document. It was also seen that a M.L.A of Assam belonging to the political party All India United Democratic Front (AIUDF) was found out of the NRC, to which the M.L.A expressed that many genuine Indians were left out of the NRC list whereas many illegal foreigners were included in the list.

The later drive of updating the list led to a huge protest which came to be known as the Citizenship Amendment Act (Bill) protest, which occurred after the Citizenship Amendment Act was enacted by the Government of India on 12^th December 2019.

The protest first began in the state of Assam, and swiftly spread over to other states such as Meghalaya, Tripura, Arunachal Pradesh and Delhi. The act accepted illegal immigrants who are Hindu, Sikh, Jain, Parsi, Buddhist and Christian from Afghanistan, Bangladesh and Pakistan, and who entered India before 2014 following the religious persecutions. However, the bill does not mention Muslims and other communities who fled from the same or the other neighboring countries.

However, the act was widely criticized as many pointed out that it discriminates people on the basis of religion. Protestor demanded for scrapping the amendment and non-implementation of NRC nationwide. Protestors in Assam and other northeastern state did not want the granting of Indian Citizenship to any of the refugee or immigrant, regardless of their religion, as they fear that such act could hamper the demographic balance that could result in a loss of political and cultural rights.

The first protest took place in Assam on 4^th December 2019, later the protest erupted in Northeast India, following which it subsequently spread to the major cities of India. A major protest took place in Delhi near Jamia Millia Islamia and Aligarh Muslim University, on 15^th December 2019.

The protestors were also concerned that this action of the government could trigger more migration from Bangladesh violating the Assam Accord that was earlier agreement with the central government regarding the migrants and refugees. The protestors mentioned that the act violates Clause 5 and Clause 6 of the 1985 Assam Accord.

 Constitutional Validity

The Citizenship (Amendment) Act, 2003 and The National Register of Citizen stands unconstitutional as it clearly is inconsistent with Part III of the Constitution of India. As both of them are clearly violation of Article 14 and Article 21 that are enshrined in Part III of the Constitution of India.

 Article 14 of the Indian Constitution reads as:

14. Equality before law. –

The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.[ix]

 Article 21 of the Indian Constitution reads as:

21. Protection of life and personal liberty. –

No person shall be deprived of his life or personal liberty except according to procedure established by law.[x]

 Conclusion

Therefore, it can be concluded by pointing out the provisions that government has empowered under Article 11 (Part II) of the Constitution of India to enact laws pertaining to citizenship as it thinks fit. However, Article 13 (Part III) restricts the parliamentarians to make laws which are in derogation with the fundamental rights of the Indians. And this Amendment is a violation of Part III of the constitution.

Therefore, the law makers should take proper measures while drafting and formulating any such law and making sure that it does not contradict with any of the provisions that could give rise to any event of similar kind in the future. The new NRC and the CAA prominently impugned the democratic and secular framework held by the Indian Constitution, violating the rudimentary elements of the Grundnorm. Ratification and adaptation of the acts should meet with the basic principles of law and the fundamental elements of our Constitution. Realizing the significance of a more structured and evaluated legislature is the need of the hour for the social, cultural and demographic stability of the country.

NOTES

[i] IANS, CAA: Changes in Citizenship criteria since 1955 till date, INDIA TV NEWS (April 8, 2023, 8:45 PM), https://www.indiatvnews.com/fyi/caa-citizenship-criteria-changes-since-1955-till-date-580760

[ii] M AMARJEET SINGH, A Study on Illegal Immigration into North-East INDIA: THE Case of Nagaland, Page no. 7, Institute for Defence Studies and Analyses (2009)

[iii] M AMARJEET SINGH, A Study on Illegal Immigration into North-East INDIA: THE Case of Nagaland, Page no. 11, Institute for Defence Studies and Analyses (2009)

[iv] MOUTUSHI DEB, IMMIGRANTS TRIBES IN TRIPURA, Page no. 1, Tribal Research and Cultural Institute (2018)

[v] AIR 2005 S.C. 2920

[vi] Sarbananda Sonowal v. Union of India, A.I.R. 2005 S.C. 2920

[vii] Minhaj Adnan, What is National Register of Citizens of India? THE SIASAT DAILY (April 8, 2023, 10:15 PM), https://www.siasat.com/what-national-register-citizens-india-1780229/

[viii] JOURNALS OF INDIA, https://journalsofindia.com/national-register-of-citizens-2/ (April 9, 2023)

[ix] INDIA CONST. art 14

[x] INDIA CONST. art 21